Case 2:15-cv-00185-ROS Document 1 Filed 02/03/15 Page 1 of 51

1 Keith Beauchamp (012434)

Roopali H. Desai (024295) 2 Shelley Tolman (253952)

3

COPPERSMITH BROCKELMAN PLC 2800 North Central Avenue, Suite 1200

4 Phoenix, Arizona 85004 T: (602) 381-5478

5 F: (602) 224-6020

kbeauchamp@cblawyers.com 6 rdesai@cblawyers.com

7 stolman@cblawyers.com

8 Anne C. Ronan (006041) Timothy M. Hogan (004567)

9 ARIZONA CENTER FOR LAW IN THE

10

PUBLIC INTEREST 514 West Roosevelt Street

11 Phoenix, Arizona 85003

T: (602) 258-8850 12 F: (602) 258-8757

13 aronan@aclpi.org thogan@aclpi.org

14 Attorneys for Plaintiffs

William Kapell (pro hac vice application pending) Julia L. Davis (pro hac vice application pending) CHILDREN’S RIGHTS, INC. 330 Seventh Avenue, Fourth Floor New York, New York 10001 T: (212) 683-2210 F: (212) 683-4015 wkapell@childrensrights.org jdavis@childrensrights.org

15

16

UNITED STATES DISTRICT COURT

17

DISTRICT OF ARIZONA

18 B.K. by her next friend Margaret Tinsley; C.P. and B.T. by their next friend Jennifer
19 Kupiszewski; A.A.; A.C-B; M.C-B; J.C-B; D.C-B; J.M. and J.C. by their next friend
20 Susan Brandt, for themselves and those 21 similarly situated,

22

Plaintiffs,

23 v.

24 Charles Flanagan, in his official capacity as Director of the Arizona Department of Child
25 Safety; and William Humble, in his official capacity as Director of the Arizona
26 Department of Health Services,

27

Defendants.

28

) No. ) ) ) COMPLAINT FOR INJUNCTIVE ) AND DECLARATORY RELIEF ) AND REQUEST FOR CLASS ) ACTION ) ) ) ) ) ) ) ) ) ) ) )

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1

Plaintiffs, by their undersigned attorneys, bring this civil action for declaratory and

2 injunctive relief, and allege as follows:

3

INTRODUCTION

4

1. This is a civil rights class action brought by the Named Plaintiffs, children in

5 Arizona state foster care custody, on behalf of themselves, a general class of children who

6 are or will be placed in such custody following reports that they have suffered child abuse

7 or neglect, and certain subclasses of these children.

8

2. Plaintiffs are among the State’s most vulnerable citizens. Through no fault

9 of their own, they find themselves in the legal custody of the State after having already

10 suffered the trauma of being abused or neglected by their own families. Plaintiffs seek

11 declaratory and injunctive relief to end certain child welfare policies and practices

12 described herein exposing them to yet further physical and emotional harm and

13 unreasonable risk of harm while in the State’s care.

14

3. On May 29, 2014, legislation was enacted giving responsibility for the

15 state’s child welfare operations to the state Department of Child Safety (“DCS”) and

16 removing such responsibility from the state Department of Economic Security (“DES”).

17 As of May 29, 2014, DCS, which was established as an independent agency, is legally

18 responsible for managing the state’s child welfare system.

19

4. Plaintiffs name Charles Flanagan, the Director of DCS, as a defendant.

20 Defendant Flanagan, who is sued solely in his official capacity, directly and indirectly

21 controls and is responsible for the policies and practices of DCS, including those set forth

22 herein.

23

5. Plaintiffs also name William Humble, the Director of the state Department of

24 Health Services (“DHS”), as a defendant. DHS is responsible for providing mental and

25 behavioral health services to children in Arizona state foster care custody. Defendant

26 Humble, who is sued solely in his official capacity, directly and indirectly controls and is

27 responsible for the policies and practices of DHS, including those set forth herein.

28

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1

6. Over the past several years, while foster care rates across the nation have

2 been on the decline, Arizona has experienced a dramatic increase in the number of children

3 in state foster care. From 2003 to 2012, the number of children in the State’s foster care

4 custody nearly doubled. More recently, Arizona’s foster care population grew from

5 10,207 as of March 31, 2010 to 15,037 as of September 2013, a 47.3% increase. The

6 number of children in out-of-home care grew by another 10% from February 2013 to

7 February 2014. As of September 30, 2014, there are 16,990 children in state foster care

8 custody who have been placed in out-of-home care.

9

7. This huge growth in the state’s foster care population has been fueled by

10 extensive state budget cuts to important support services that had previously helped keep

11 families together. In particular, state funding for DES’s contracts with community-based

12 providers who offered in-home services to children, aimed at making removal of children

13 into foster care unnecessary, was cut in half in recent years, from $43 million in fiscal year

14 2008 to under $22 million in fiscal year 2012.

15

8. These cuts followed the state’s termination of its Family Builders program in

16 2004, which had provided family-centered assessments, case management, and services for

17 families with children deemed to be at low or only potential risk of being abused or

18 neglected.

19

9. According to the Arizona Chapter of the American Academy of Pediatrics

20 “[c]uts to DES family support services including child care assistance, housing assistance,

21 substance-abuse treatment and job training for families has resulted in a 40% increase in

22 the number of children who needed to be placed in foster care since 2009 and these

23 children are staying in foster care longer because their parents are not provided with the

24 services they need.”

25

10. As former Governor Brewer publicly acknowledged in 2014, the Arizona

26 “child welfare system is broken, impeded by years of structural and operational failures.”

27 Defendants DCS and DHS (collectively the “Defendants”) are legally responsible for

28 overseeing this “broken” system.

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1

11. Defendants are well aware that the following structural and operational

2 failures continue to plague the state’s child welfare system:

3

• A severe shortage in and inaccessibility of physical, mental and

behavioral health services available to children in state care. As a result,

4

far too many children in state foster care custody do not receive the health

care services they desperately need and all children in state care are subject

5

to an unreasonable risk that they will suffer physical and emotional harm and

6

deterioration while in the state’s care.

• A widespread failure to conduct timely investigations of reports that

7

children have been maltreated while in state foster care custody. As a

8

result of the state’s deficient investigation practices, children in state foster care custody are placed at an undue risk of suffering physical and emotional

9

harm while in state care.

10

• A severe and sustained shortage of family foster homes. As a result of this shortage, children in state foster care are emotionally harmed and

11

subjected to an unreasonable risk of harm by being placed far from their families and communities, separated from their siblings, and forced to

12

experience disruptive school changes.

13

• A widespread failure to engage in basic child welfare practices aimed at maintaining family relationships, such as placing siblings together,

14

placing children with their biological parents on a trial reunification basis, coordinating visits between children in state foster care and their

15

biological families, and having caseworkers make regular visits with the

children’s biological parents to monitor progress toward family

16

reunification. These failures subject children in state foster care to an

unreasonable risk of suffering emotional harm while in state care. Moreover,

17

as a result of these deficiencies, children are subjected to unreasonable

delays in being reunified with their families, causing them to suffer further

18

emotional harm.

19

12. The State has failed to remedy these ongoing failures.

20

13. Moreover, Arizona officials have long been aware of these deficiencies and

21 harms. As far back as 2003, the Maricopa County Attorney’s Office released a report on

22 the state’s child welfare system, In Harm’s Way, detailing the system’s deficiencies.

23 Among its findings, the report identified a shortage of foster homes and stated that “[p]art

24 of the reason many feel that children stay in a ‘risky’ situation is the inability to place them

25 elsewhere.” The report concluded that the state’s child welfare system was “overloaded

26 without the proper resources to ensure the safety of all children.”

27

14. That same year, then Governor Janet Napolitano acknowledged that “[t]he

28 system for protecting Arizona’s children from abuse and neglect, which has been falling

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1 apart for years due to poor design and chronic under-funding, is in critical need of repair.”

2 Governor Napolitano convened an “Advisory Commission on CPS Reform” that issued an

3 Action Plan for Reform of Arizona’s Child Protection System in September 2003 (the

4 “Action Plan”). The Action Plan noted several systemic deficiencies in the state’s child

5 welfare system, including a shortage of foster homes and limited access to services for

6 foster children.

7

15. In the years since In Harm’s Way and the Action Plan were released, the

8 child welfare system has continued to suffer from a vast shortage of foster homes and

9 inadequate access to child services, despite the known harm that these structural

10 impairments have caused children in state foster care to suffer.

11

16. As a result of the state’s failure to remedy these problems, plaintiffs have

12 been, and continue to be, exposed to harm and an unreasonable risk of harm, in violation

13 of their federal constitutional and statutory rights.

14

JURISDICTION AND VENUE

15

17. This action is brought pursuant to 42 U.S.C. § 1983 to redress violations of

16 the United States Constitution and the provisions of the federal Medicaid Act, including

17 42 U.S.C. §§ 1396a(a)(10)(A)(i)(I), 1396a(a)(43)(C), 1396d(a)(4)(B) and 1396d(r), that

18 require states to provide early and periodic screening, diagnostic and treatment (“EPSDT”)

19 services. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3), and

20 authority to grant declaratory relief under 28 U.S.C. §§ 2201 and 2202.

21

18. Venue is proper here pursuant to 28 U.S.C. § 1391(b) because the claims

22 arise in this district.

23

PARTIES

24 A. The Named Plaintiffs

25

B.K.

26

19. B.K. is a ten-year-old girl who has spent more than half of her life in state

27 foster care. Even though she is only ten, DCS’s permanency goal for her is permanent

28 foster care, meaning that DCS has concluded that she has little, if any, chance of leaving

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1 foster care over the next eight years. During her time in state foster care, B.K. has been

2 deprived of needed physical and mental health care, separated from her siblings, deprived

3 of contact with her mother and siblings, and placed in institutional settings on two different

4 occasions. As a result of these experiences, B.K. has been subjected to emotional harm

5 and/or an ongoing unreasonable risk of harm.

6

20. B.K. first entered voluntary state custody in 2005 when she was five months

7 old. At that time, B.K.’s mother had a substance abuse problem and could not care for her.

8 B.K. remained in the legal custody of the state until September 2006 when she was

9 returned to her mother.

10

21. In 2008, then three-year-old B.K. and her three siblings were removed from

11 their mother’s home. Upon assuming their care, the state immediately separated the four

12 siblings, placing B.K. and her brother in a licensed foster home, and their two sisters in a

13 second foster home. In late 2009, the state returned B.K. and her siblings to their mother’s

14 care.

15

22. In 2012, B.K. and her three siblings were again removed from their mother’s

16 home and placed in state foster care custody. Upon coming into state care for the third

17 time, B.K. was diagnosed with Posttraumatic Stress Disorder (“PTSD”), a mood disorder,

18 psychosis and anxiety. An investigation showed that B.K. had been physically abused by

19 her mother, and had bumps and bruises on her head and behind her ears.

20

23. Despite her fragile emotional state, the state separated B.K. from all of her

21 siblings, placing her in a group home on “emergency shelter” status. Though such

22 placements are supposed to be short-term, B.K. remained at the group home for more than

23 two years.

24

24. While at the group home, the state failed to ensure that B.K. obtained the

25 glasses she needed to see properly. The state also failed to discover that B.K. was walking

26 with a limp, and failed to make sure that she received the orthopedic shoes she needed.

27 Despite months of complaints from B.K. about a toothache, the state failed to make sure

28 she saw a dentist while she was living at the group home.

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1

25. From the time B.K. was placed at the group home in 2012 until early 2014,

2 the state also failed to ensure that B.K. received consistent counseling and needed mental

3 health services. During this time, B.K. was saying that she was hearing voices that were

4 telling her to hurt other people or that someone would die. One time she was so scared by

5 the voices that she called the police. The state knew that the group home was failing to

6 arrange for B.K.’s transportation to appointments with health care providers, but failed to

7 see to it that B.K. received undisrupted services. The group home also enrolled B.K. in a

8 specialized school where she was the only girl.

9

26. In May 2014, the state finally placed B.K. in a foster home after she had

10 spent 25 months in the group home. The state placed her with a man and his great-nephew

11 who went to the same specialized school as B.K. The man told the state that he was

12 concerned about B.K.’s mental health and asked the state to make sure she received an

13 updated psychological evaluation. The last complete evaluation had been conducted five

14 years earlier when B.K. was four. The updated assessment was never performed. After

15 only eight weeks, B.K. was moved to a second foster home with neighbors of the man and

16 his great-nephew. After two weeks at this second home, the foster parents packed up

17 B.K.’s things and dropped her off at a DCS office.

18

27. In August 2014, DCS moved B.K. to a shelter. The move to shelter care

19 caused B.K. to have to change schools, resulting in educational and social disruption.

20 Moreover, the counselor who had been treating B.K. at the group home refused to drive to

21 see B.K. at the shelter because of the distance involved, and DCS again failed to ensure

22 that B.K. received transportation to her counseling sessions.

23

28. During August 2014, B.K.’s behavioral health coordinator concluded that

24 B.K. should be placed in a “Home Care Training to Home Care Client Services”

25 (“HCTC”) therapeutic foster home. No such placement was made and B.K. remained in a

26 shelter until September. While at the shelter, B.K. had no contact with her mother or three

27 older siblings, even though her siblings have been returned to their mother’s care. B.K.’s

28

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1 mental health deteriorated at the shelter and she threatened to hurt herself and others. She

2 was admitted to a psychiatric hospital for a week to be stabilized.

3

29. In late September 2014, DCS moved B.K. from the hospital to a non-

4 therapeutic foster home. This resulted in another change in schools. DCS did not ensure

5 that she had regular contact with her mother or siblings.

6

30. In December 2014, still waiting to be placed in an HCTC home, B.K. had

7 another psychiatric crisis and threatened suicide. The state moved her out of the foster

8 home and admitted her to another psychiatric hospital. She stayed in the hospital for a

9 week and a half.

10

31. In late December, months after her providers agreed she needed a therapeutic

11 foster home, B.K. was finally discharged from the hospital to an HCTC placement. This

12 resulted in yet another change in schools.

13

C.P.

14

32. C.P. is a seven-year-old boy who has been in state foster care custody since

15 June 2013. His current permanency goal is adoption. During his time in state care, he has

16 attended eight different schools and has had to live in 11 different placements, including

17 two stays in shelters and a placement in a foster home where he was physically abused.

18 While in state care, he has been separated from his siblings, deprived of visits with them,

19 and has been deprived of access to both the mental health services and placements he

20 desperately needs. As a result of these experiences, C.P. has been subjected to physical

21 and emotional harm and/or an ongoing unreasonable risk of harm.

22

33. C.P. and his two sisters were taken into state custody after being exposed to

23 neglect and domestic violence. They were initially placed in an unlicensed foster home for

24 four days before being moved to their grandmother’s home. During the two-month period

25 that C.P. was with his grandmother, she repeatedly asked the state for help with C.P.’s

26 mental health needs, but C.P. did not receive any mental health care services. Ultimately,

27 his grandmother asked the state to remove C.P. and his siblings from her home.

28

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1

34. The state then separated C.P. and his older sister from their younger sister.

2 C.P. and his older sister were placed in a Spanish-speaking foster home, even though the

3 children do not speak Spanish. The home was almost an hour away from C.P.’s

4 grandmother and the foster home where C.P.’s younger sister was placed. Within ten days

5 of arriving at the Spanish-speaking foster home, C.P. and his older sister were separated

6 and placed in two different foster homes.

7

35. In early September 2013, the state moved C.P. to yet another foster home.

8 After months in foster care, C.P. was belatedly assigned a therapist. Even then, however,

9 C.P.’s foster mother refused to take C.P. to his appointments and the state failed to arrange

10 for other transportation. As a result, C.P. did not have a single therapy session during the

11 four months he lived at the foster home.

12

36. The foster mother was also reported to the state Child Abuse Hotline, to

13 C.P.’s DES case manager and to the state licensing office, after she placed C.P. in the front

14 seat of her car without a car seat or booster seat. DCS did not conduct an investigation of

15 these reports. Moreover, the case manager acknowledged that she had made an earlier

16 report to the Child Abuse Hotline herself when it was discovered that the foster mother had

17 left C.P. unsupervised with another foster child. DCS did not investigate that report either.

18

37. In January 2014, C.P. began visiting at another home where his older sister

19 was living. When his foster mother failed to pick him up from a visit, the state simply told

20 the family whom C.P. was visiting to keep him. C.P. subsequently disclosed that his

21 former foster mother had hit him with a spoon. Though the state investigated the reported

22 abuse, DCS never entered any investigation findings into the agency’s Children’s

23 Information Library and Data Source (“CHILDS”) system, nor did the state close the

24 investigation.

25

38. C.P. started living at the new foster home with his older sister in January

26 2014. Shortly thereafter, he became suicidal. Though he had a crisis stabilization team in

27 place, it failed to promptly respond to this crisis, and the foster mother called the police

28 who took C.P. to the hospital. C.P. did not see his older sister again for nearly a year.

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1

39. C.P. was admitted to a psychiatric hospital for a week. He was diagnosed

2 with PTSD and his doctors indicated that he needed immediate intensive trauma therapy

3 and specialized therapy at a therapeutic HCTC home. C.P.’s stabilization team agreed that

4 C.P. needed to be placed in a foster home equipped to respond to his needs. Nevertheless,

5 when C.P. left the hospital, the state took him directly to a shelter. He spent ten days in

6 that shelter before being moved to a second shelter, a move that also resulted in C.P.

7 having to change schools.

8

40. In February 2014, three weeks after arriving at the second shelter, C.P.

9 became suicidal again, telling staff about his plan to get a knife and hurt himself. He was

10 hospitalized for a second time and prescribed psychotropic medication. He remained in

11 the hospital for two weeks before being discharged in March 2014. Again, the doctors at

12 the psychiatric hospital recommended that C.P. be released to a therapeutic HCTC home.

13

41. Instead, the state placed C.P. in a non-therapeutic foster home. C.P. had to

14 switch schools again and was inappropriately placed in first grade instead of kindergarten,

15 where he should have been enrolled based on his age and school experience. He stayed in

16 first grade for a month before anyone realized he was in the wrong grade.

17

42. In April 2014, the state finally placed C.P. in an HCTC home.

18 Unfortunately, he was required to switch schools again as a result of this latest placement.

19

43. In December 2014, both of C.P.’s two sisters were adopted. During the year

20 before they were adopted, C.P. had only one sibling visit with one of his sisters, even

21 though his mental health assessments indicate that his sisters are the only people with

22 whom he has meaningful attachments. Moreover, he has had no contact with either of

23 them since they were adopted. Nor has C.P. received the intensive trauma therapy that was

24 recommended for him in January 2014. Because his HCTC placement is temporary, his

25 providers have decided that he should not receive intensive trauma therapy until he is in a

26 more stable home.

27

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1

B.T.

2

44. B.T. is a fourteen-year-old boy diagnosed with PTSD. His current

3 permanency goal is adoption. During his many years in state foster care custody, he has

4 been shuffled through numerous institutional settings despite his young age, separated

5 from his siblings, denied sibling visitation, deprived of much needed mental health care,

6 and has had to endure repeated educational disruptions. As a result of these experiences,

7 B.T. has been subjected to emotional harm and/or an ongoing unreasonable risk of harm.

8

45. In January 2005, B.T. was taken into foster care for the first time, along with

9 his two older brothers. B.T. and one of his older brothers were placed together in a group

10 home, and the other brother was separated and placed in a different group home.

11

46. A month after being taken into state care, B.T. had a psychological

12 evaluation, which indicated that he needed therapeutic treatment. He had to wait six

13 months before his first therapy session.

14

47. In June 2005, B.T. was removed from the group home and separated from

15 the brother with whom he was placed there. He was moved to a kinship foster home with

16 a paternal aunt. By December 2005, B.T. had spent six months in his new home without

17 any visits with his older brothers. He did not see his brothers again until January 2006.

18

48. In August 2006, B.T.’s aunt told the state that B.T. was not receiving the

19 counseling that he needed. She requested that B.T. have an updated psychological

20 evaluation, but no such evaluation was conducted. During this same time period, the state

21 was again failing to provide B.T. with regular visits with one of his brothers.

22

49. In September 2006, B.T.’s aunt told the state that she could no longer care

23 for B.T. since the state was not providing him with the mental health services he needed.

24 Rather than providing those services, the state moved B.T. to an emergency receiving

25 foster home.

26

50. In October 2006, B.T. threatened to kill himself and the foster family with

27 whom he was temporarily placed. Despite his mounting mental health issues, B.T. still

28

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1 was not receiving regular therapy. The state responded to this latest crisis by removing

2 B.T. from the home. B.T., then six years old, was again placed in a group home.

3

51. Shortly thereafter, the state received reports that B.T. was struggling

4 emotionally in the group home. Again, an updated psychological evaluation for B.T. was

5 requested, but the evaluation was not scheduled until December 2006. The state also failed

6 during this time to ensure that B.T. received needed counseling.

7

52. B.T.’s evaluation indicated that he needed individual therapy every other

8 week. He was also prescribed psychotropic medication. A psycho-educational evaluation

9 was recommended, but never conducted.

10

53. In January 2008, B.T. was placed in a pre-adoptive home with one of his

11 brothers. A month later, the family told the state that B.T. needed more intensive

12 counseling and a different counselor who could better meet B.T.’s needs.

13

54. In August 2008, both B.T. and his brother were adopted. In March 2011,

14 however, they were both taken back into state foster care. Shortly after this occurred, B.T.

15 reported that his adoptive father had been beating him with a belt.

16

55. The state immediately separated B.T. from his brother, placing the two boys

17 in different non-therapeutic group homes. The group home where B.T. was placed told the

18 state that B.T. desperately needed counseling. Despite this, B.T. did not receive any

19 counseling while at the group home.

20

56. A month after being brought back into state care, B.T. was hospitalized in an

21 acute care mental health facility for two weeks. After leaving the hospital, the state

22 returned B.T. to the group home.

23

57. Once back at the group home in May 2011, B.T.’s mental health worsened.

24 The state approved B.T. for a therapeutic HCTC placement, but did not have one available

25 for him.

26

58. Stuck in the group home, B.T. responded by trying to run away. B.T. spent

27 the night at a juvenile detention center. In that one night, his group home filled his open

28

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1 bed with another child. As a consequence, the state moved B.T. to a new group home

2 hours away from his prior placement.

3

59. In July 2011, B.T. was moved to an HCTC home, but he was still not

4 receiving trauma therapy and no psycho-sexual evaluation had been completed, despite

5 one having been recommended months earlier. It was not until October 2011 that a

6 psycho-sexual evaluation was conducted.

7

60. During April 2012, the state began looking for another HCTC placement to

8 better meet B.T.’s needs. Unable to find one, it instead moved him to a non-therapeutic

9 group home/shelter in August 2012. By October 2012, B.T. reported “I feel like I get

10 tossed around like a bag of chips.” He threatened to kill himself three times while in this

11 non-therapeutic congregate care placement.

12

61. In November 2012, the shelter told the state that B.T. needed a higher level

13 of care. The next month he was moved again, this time to a therapeutic group home.

14 While placed there, B.T. continued to express suicidal thoughts.

15

62. In January 2013, B.T. was returned to the same non-therapeutic group

16 home/shelter that had told the state just two months earlier that B.T. needed a higher level

17 of care. B.T. remained at that shelter for a few more weeks before the state moved him

18 again to a therapeutic group home two hours from his home community. In May 2013, the

19 brother with whom B.T. was adopted in 2008 was placed in a pre-adoptive placement with

20 a family that ultimately adopted him. B.T. felt defeated and said he thought he would

21 never get out of the group home. The following month, B.T. grabbed the steering wheel of

22 a van driven by group home staff, saying, “I want us all to die.” That same day, the state’s

23 therapeutic team coordinating B.T.’s behavioral health services reported that “with a few

24 exceptions, B.T. is doing well over the last 2 weeks.”

25

63. Following the apparent suicide attempt, B.T.’s treating psychiatrist

26 recommended that B.T. be placed in a residential treatment facility. An application was

27 made the following month. While that request was pending, the state moved B.T. to

28

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1 another therapeutic group home far from his home county. In September 2013, the state

2 moved B.T. to yet another therapeutic group home.

3

64. In March 2014, the state moved B.T. to a non-therapeutic family foster

4 home, but this placement disrupted after the state failed to provide B.T. with any therapy to

5 support his transition to a family home. In July 2014, B.T. was moved to another non-

6 therapeutic foster home. By September, B.T. had only had a single therapy session.

7

65. In October, DCS moved B.T. to a shelter where he stayed for more than a

8 month. B.T. did not receive any therapy sessions in the placement. In early November,

9 his Child and Family Team (“CFT”) recommended and the state approved B.T. for a

10 therapeutic HCTC placement. No such placement was made. Instead, DCS placed B.T. in

11 another therapeutic group home.

12

66. Almost every time the state has moved B.T. over the last three and a half

13 years, he had to go to a new school.

14

67. In December 2014, B.T. threatened to commit suicide while living in the

15 therapeutic group home. In January 2015, B.T. was placed in juvenile detention in

16 Maricopa County following an incident in a prior group home.

17

68. Now 14 years old, B.T. has spent half his life in Arizona foster care custody

18 and does not expect to find a permanent family.

19

A.A.

20

69. A.A. is a ten-year-old boy in state foster care currently living in a non-

21 therapeutic group home. His current permanency goal is adoption. He was taken into state

22 foster care custody most recently in September 2011 with his nine-year-old brother.

23 During his time in state care, A.A. has been placed in institutional care; deprived of

24 necessary physical, dental and mental health care services; separated from his brother and

25 deprived of sibling visitation; and, has been subject to missed visits by his state child

26 welfare caseworker. As a result of these experiences, A.A. has been subjected to

27 emotional harm and/or an ongoing unreasonable risk of harm.

28

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1

70. A.A. and his younger brother were taken into state foster care custody after

2 their father committed suicide in mid-2011. This was their second time in state care. They

3 had also been in state foster care custody prior to 2007. Their mother’s parental rights

4 were terminated in January 2007.

5

71. Following their father’s suicide, the state placed A.A. and his brother in an

6 unlicensed kinship home with an uncle, his wife and their young son. In November 2011,

7 A.A.’s brother was removed from the home and placed in a therapeutic group home. A.A.

8 remained with his uncle’s family.

9

72. During the period from November 2012 to March 2013, the state failed to

10 arrange for sibling visits between A.A. and his brother, and A.A.’s state caseworker failed

11 to make monthly visits, as required under state policy. In February 2013, the state was

12 ordered to ensure that the boys had visitation with each other twice weekly. The state was

13 also ordered to transfer A.A.’s case to the adoption unit to begin the process of finding a

14 permanent family. As alleged below, the state failed to comply with that order.

15

73. As of March 2013, A.A. had not had a routine physical or seen a dentist in a

16 year.

17

74. At a status hearing in April 2013, the juvenile court made a finding of “no

18 reasonable efforts” against the state for its failure to arrange for sibling visitation, to help

19 A.A. progress with his schooling, and to transfer A.A.’s case to the adoption unit. Despite

20 this ruling, and despite the fact that A.A. had been free for adoption since he re-entered

21 care in 2011, the state still failed to transfer A.A.’s case to the adoption unit 13 months

22 later, in May 2014.

23

75. In November 2013, a mental health evaluation was scheduled for A.A. and

24 his brother. The appointment could not proceed because the state failed to arrange

25 transportation for the boys. As a result, the evaluation had to be re-scheduled for the

26 following month.

27

76. The evaluation was not completed until February 2014. The evaluator

28 concluded that more information was needed with regard to A.A.’s response to his father’s

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1 suicide before any therapeutic services could be recommended. Nonetheless, the state

2 failed to request any further assessments.

3

77. In February 2014, A.A. also reported that his aunt and uncle left him for two

4 to three hours at a time to care for his five-year-old cousin while they delivered

5 newspapers in the early mornings. Around the same time, A.A.’s uncle posted a video on

6 YouTube of himself tasering a 15-year-old child living in the house while another child is

7 heard crying in the background. A.A.’s aunt and uncle were also using corporal

8 punishment to discipline A.A. While these facts were known to the state, it never

9 investigated them.

10

78. That same month, A.A.’s uncle and aunt announced that they were leaving

11 the state and would not be taking A.A. with them. A.A. was thereupon removed from the

12 uncle’s home and placed in the same foster/adoptive home as his brother, but no services

13 were put in place for the first three weeks to help A.A. with the transition. Shortly after

14 being placed in the foster/adoptive home, A.A. started saying he wanted to die.

15

79. The state subsequently moved A.A. to an emergency respite foster home.

16 His brother’s foster family told the state it was willing to have A.A. return to live with

17 them, but not until A.A. received the behavioral health services he needed. Nevertheless,

18 in April 2014, the state moved A.A. to a non-therapeutic group home out of his home

19 county and 1½ hours away from his brother. The state did not arrange visits between the

20 two boys.

21

80. In May 2014, the juvenile court directed the state to immediately place A.A.

22 back in his home county. As A.A. was receiving no therapy or counseling at the time, the

23 court also ordered the state to provide therapy for A.A. immediately, beginning no later

24 than the end of the month. However, in July 2014, DCS again failed to coordinate A.A.’s

25 transportation and A.A. was unable to go to his scheduled psychological evaluation.

26

81. Despite the May 2014 court order, A.A. remained in a non-therapeutic group

27 home two hours away from his home community for five months. During that time he had

28

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1 to travel nearly two hours each way to obtain needed mental health services. DCS moved

2 A.A. to a non-therapeutic group home in his home county in September 2014.

3

The C-B Siblings

4

82. The C-B siblings include two brothers, A.C-B and M.C-B, aged five and

5 seven, and two sisters, J.C-B and D.C-B, aged three and six, all of whom were taken into

6 state foster care custody in January 2014. Their current permanency goal is reunification.

7 During their time in state care, they have been unnecessarily separated, deprived of needed

8 mental health care and parental visitation, and the sisters were placed in an inappropriate

9 institutional setting. As a result of these experiences, they have been subjected to

10 emotional harm and/or an ongoing unreasonable risk of harm.

11

83. Because of the traumatizing circumstances that led to their being taken into

12 foster care, the siblings’ lawyer requested at the first juvenile court hearing of the case in

13 January 2014 that the state immediately provide the children with trauma therapy. As

14 alleged further below, the state delayed those services for nine months.

15

84. The state initially placed the four siblings with a relative 2½ hours away

16 from the home from which they were removed. Because of this distant placement, their

17 urgent response assessments, required for every child taken into foster care, were delayed,

18 and the children never received any behavioral health services while in this placement.

19

85. In March 2014, the state removed the children from the relative and placed

20 them in separate locations. The state placed seven-year-old M.C-B and five-year-old

21 A.C-B in a licensed family foster home. Six-year-old D.C-B and three-year-old J.C-B

22 were placed in a non-therapeutic group home. None of the siblings received behavioral

23 health services while in these placements.

24

86. That same month, M.C-B and A.C-B’s foster parents requested that M.C-B

25 receive a psychological evaluation. The evaluation was not conducted for eight months.

26

87. In April 2014, the state moved all four of the C-B siblings to their father’s

27 home. The children’s state child welfare case manager never visited them in the home.

28 The state also failed to ensure that any of the children received behavioral health services

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1 or counseling, even though D.C-B and A.C-B were exhibiting sexualized behaviors

2 indicative of possible sexual abuse. Only two weeks after being placed there, the

3 children’s father requested that the state remove them.

4

88. In May 2014, the state again split up the siblings, this time into three

5 different foster homes. M.C-B and A.C-B were placed in the same foster home where they

6 had previously been placed. The state placed each of the girls, D.C-B and J.C-B, in

7 separate foster homes.

8

89. From the time they were taken into custody to May 2014, none of the

9 siblings had any visits with their biological mother.

10

90. Following a juvenile court hearing in early June 2014, DCS agreed to ensure

11 that all four children receive therapy – not just an intake or enrollment – with a trauma

12 therapist by June 20. DCS also agreed to pay for the services if DHS would not pay. In

13 addition, the court directed DCS to provide the children with relational therapy with both

14 parents. DCS further agreed to work with the children’s father to help meet his

15 transportation needs in order to facilitate visitation with the children, including providing

16 him with a gas card. DCS failed to provide any of these services or supports.

17

91. Consequently, on July 2, 2014, the juvenile court made a “no reasonable

18 efforts” finding with regard to DCS’s failure to provide services for the siblings. The court

19 called the agency’s conduct “appalling.”

20

92. In late July 2014, D.C-B was placed in the same foster home as M.C-B and

21 A.C-B. J.C-B remains in a separate foster home.

22

93. In August 2014, eight months after being brought into foster care, the three

23 eldest siblings finally had their behavioral health evaluations completed.

24

94. In mid-September 2014, nine months after being taken into foster care,

25 M.C-B and A.C-B had received only one therapy session. Though their CFT

26 recommended that they receive weekly therapy sessions, the facility where the therapist is

27 located can only accommodate therapy sessions every other week.

28

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Case 2:15-cv-00185-ROS Document 1 Filed 02/03/15 Page 19 of 51

1

95. By September 2014, D.C-B had received only two sessions with a therapist.

2 J.C-B had an intake meeting with her therapist, but her therapy sessions had not yet started.

3

96. In December 2014, the state had only just begun the psychological

4 evaluation that M.C-B’s foster parents first requested in March 2014. In addition, M.C-B

5 and A.C-B are both struggling in school with attention problems.

6

J.M.

7

97. J.M. is an eight-year-old boy who was taken into foster care when he was six

8 years old. His current permanency goal is adoption. During his time in state foster care

9 custody, J.M. has been deprived of needed mental health care, placed in institutions on

10 numerous occasions, and has had his education repeatedly disrupted. As a result of these

11 experiences, J.M. has been subjected to emotional harm and/or an ongoing unreasonable

12 risk of harm.

13

98. J.M. was brought into state foster care in May 2012. The state initially

14 placed him in a shelter for five days, then moved him to live with his grandmother. When

15 she could not care for him, the state moved J.M. to a group home in a different county.

16 J.M. remained there for two months.

17

99. In July 2012, the state moved J.M. to an unlicensed kinship home back in his

18 home community. J.M. entered first grade that summer. The state failed to ensure that

19 J.M. had transportation to and from school. As a consequence, J.M. missed sixty days of

20 schooling.

21

100. In September 2013, J.M. was moved to another kinship placement two hours

22 from his home county. As a result of this placement change, J.M. had to start second grade

23 at a new school. The move also resulted in a change in J.M.’s mental health providers,

24 disrupting his mental health care.

25

101. In October 2013, the state moved J.M. to a licensed family foster home back

26 in his home county, resulting in yet another school change for J.M.

27

102. In February 2014, the state moved J.M. to a non-therapeutic group home in

28 another county two hours away. As a result, he had to enroll at his fourth school in less

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Case 2:15-cv-00185-ROS Document 1 Filed 02/03/15 Page 20 of 51

1 than two years since being brought into state foster care. His teachers began developing an

2 Individualized Education Program (“IEP”) for him, but it was not finalized or

3 implemented. He was also diagnosed with ADHD.

4

103. Between February and June 2014, J.M. had to move among four different

5 group homes, all two hours from his home community. During this period, the state took

6 the position that J.M. could not be placed in an HCTC therapeutic foster home until he had

7 first received, and exhausted, out-patient counseling. But each time J.M. was forced to

8 move to a different group home, he had to start his therapy over again with a new therapist.

9

104. J.M.’s visitation with his mother was also disrupted when he was moved

10 among these various group homes. J.M. has no siblings and his mother is his only intimate

11 family relationship. She had trouble traveling the two hours by bus to see J.M. at his group

12 homes and the state refused to coordinate alternative transportation for her. Instead, the

13 state required eight-year-old J.M. to travel three hours each way in a transport van for a

14 two-hour visit with his mother.

15

105. In June 2014, DCS removed J.M. from his most recent group home and

16 returned him to a shelter. This placement resulted in another disruption in his education

17 and mental health treatment. With each educational disruption, J.M.’s new school has had

18 to re-start the IEP process of assessment and planning. DCS has failed to ensure that his

19 IEP was completed or provided to his new school, which had to be ordered by the juvenile

20 court.

21

106. Later in June 2014, the state finally approved J.M. for an HCTC placement

22 after counseling proved inadequate. However, at that time, there were no HCTC

23 placements available and J.M. continued to live at the shelter for four months. In late

24 October, DCS moved him to a licensed non-therapeutic foster home. It was not until

25 November 2014 that his current school concluded the necessary evaluations and finalized

26 his IEP.

27

28

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Case 2:15-cv-00185-ROS Document 1 Filed 02/03/15 Page 21 of 51

1

J.C.

2

107. J.C. is a ten-year-old boy who was taken into state foster care when he was

3 eight. His current permanency goal is adoption. During the 2½ years he has been in

4 Arizona foster care, J.C. has suffered delays in needed health care treatment after being

5 diagnosed with PTSD; he has been placed in inappropriate institutional settings; and he has

6 been shuffled through numerous schools. He was also physically abused while in state

7 custody. As a result of these experiences, J.C. has been subjected to emotional and

8 physical harm and/or an ongoing unreasonable risk of harm.

9

108. J.C. was brought into state foster care custody in March 2012. He displayed

10 behaviors that suggested he had been sexually abused, and was placed in an HCTC home.

11 However, in September 2012, he was moved from that home and placed in a non-

12 therapeutic group home. Not surprisingly, his mental health immediately deteriorated.

13 Among other things, he soiled his pants and banged his head against the wall. Despite this,

14 the state kept J.C. in the group home for seven months.

15

109. The state moved J.C. back with his father in March 2013, while retaining

16 legal custody over J.C. J.C.’s father did not take Jacob to his therapy sessions.

17 Nonetheless, the state left J.C. with his father and failed to ensure that J.C. received the

18 care he needed.

19

110. Two months later, nine-year-old J.C. attempted suicide by taking an

20 overdose of his psychotropic medication. He was transported to the emergency room and

21 admitted to a psychiatric hospital for ten days. The state then returned him to his father’s

22 home, still retaining legal custody over J.C.

23

111. In March 2014, J.C. disclosed that his father had been physically abusing

24 him by hitting him with a belt. The state then removed J.C. from his father’s home. The

25 abuse was so severe that the police criminally investigated J.C.’s beating.

26

112. After removing him from his father, the state placed J.C. in a non-therapeutic

27 group home. As a result of this placement change, J.C. had to change schools and has had

28 significant problems adjusting. In July, DCS moved J.C. again, this time to a therapeutic

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Case 2:15-cv-00185-ROS Document 1 Filed 02/03/15 Page 22 of 51

1 group home in another county, resulting in another school disruption. In August 2014,

2 DCS moved J.C. to an HCTC foster home, where he currently lives.

3 B. The Next Friends

4

113. Pursuant to Fed. R. Civ. P. 17(c)(2), Named Plaintiffs A.A., A.C-B, M.C-B,

5 J.C-B, D.C-B, J.M., and J.C. appear through their next friend Susan M. Brandt. Ms. Brandt

6 is Social Work Supervisor at the Office of Children’s Counsel in Tucson, Arizona. She

7 resides in Tucson.

8

114. Pursuant to Fed. R. Civ. P. 17(c)(2), Named Plaintiffs B.T. and C.P. appear

9 through their next friend Jennifer L. Kupiszewski. Ms. Kupiszewski is an attorney in

10 private practice in Scottsdale who has previously represented children and parents in

11 dependency matters. She resides in Scottsdale, Arizona.

12

115. Pursuant to Fed. R. Civ. P. 17(c)(2), Named Plaintiff B.K. appears through

13 her next friend Margaret R. Tinsley, a retired attorney who has previously represented

14 children and parents in dependency matters. Ms. Tinsley resides in Tempe, AZ.

15 C. The Defendants

16

116. Defendant Charles Flanagan is the Director of DCS and is being sued in his

17 official capacity. Director Flanagan maintains his principal office at the Department of

18 Child Safety, 1717 West Jefferson S/C005A, Phoenix, Arizona 85007. Director Flanagan

19 is mandated under state law to carry out the purposes of DCS, including the formulation of

20 policies, plans and programs to effectuate DCS’s missions and purposes.

21

117. Defendant William Humble is the Director of DHS and is being sued in his

22 official capacity. Director Humble maintains his principal office at the Department of

23 Health Services, 150 North 18th Avenue, Phoenix, Arizona 85007. Director Humble is

24 mandated under state law to administer DHS, including the formulation of policies, plans

25 and programs to provide mental and behavioral health services to children in DCS foster

26 care custody.

27

28

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Case 2:15-cv-00185-ROS Document 1 Filed 02/03/15 Page 23 of 51

1 FIRST CAUSE OF ACTION – VIOLATION OF PLAINTIFFS’ SUBSTANTIVE DUE PROCESS RIGHTS UNDER THE U.S. CONSTITUTION
2

3

118. Paragraphs 1-117 above are repeated and re-alleged as if fully set forth

4 herein.

5

119. This claim is asserted against defendants Flanagan and Humble in their

6 official capacities on behalf of a class of children who are or will be in the legal custody of

7 the Arizona Department of Child Safety due to a report or suspicion of abuse or neglect

8 (the “General Class”).

9

120. DCS provides and is legally obligated to provide members of the General

10 Class with physical and dental health care services through the state Comprehensive

11 Medical and Dental Program (“CMDP”). DCS administers the CMDP.

12

121. DHS provides and is legally obligated to provide members of the General

13 Class with mental and behavioral health services through ADHS Behavioral Health

14 Services (“BHS”). BHS delivers these services through contracts with Regional

15 Behavioral Health Authorities (“RBHAs”) across the state.

16

122. DCS is also responsible for monitoring the physical, behavioral and

17 emotional health status and needs of all members of the General Class and coordinating the

18 physical, behavioral and mental health services provided to those children to ensure that

19 they receive the health care services they need while in state care.

20

123. Many children in state foster care need such services to help them cope with

21 the significant trauma to which they were exposed before being removed from their homes.

22 For example, according to the Arizona Office of the Auditor General, “as of September

23 2013, approximately 31 percent of the children in out-of-home care aged 13 or older were

24 clinically diagnosed as emotionally disturbed.”

25

124. DCS and DHS are failing to fulfill their obligations to provide, coordinate

26 and monitor medical, dental, mental and behavioral health services to members of the

27 General Class. As a result, members of the General Class are being harmed and subjected

28 to an unreasonable risk of harm and deterioration while in DCS state foster care custody.

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Case 2:15-cv-00185-ROS Document 1 Filed 02/03/15 Page 24 of 51

1

125. In both its 2011 and 2012 annual reports, Arizona’s state-wide Citizen

2 Review Panel (“CRP”) found that many children in state foster care were not receiving

3 adequate mental and behavioral health assessments and services. The CRP “repeatedly

4 observed untreated mental health problems” among children in state foster care. It also

5 found that a “lack of access to comprehensive and timely mental health assessments and

6 services exacerbated the problems of the children” and resulted in, among other things,

7 “multiple disrupted foster and adoptive placements, delays in children obtaining

8 permanency, and CPS involvement in the next generation of children.”

9

126. Moreover, according to the CRP’s 2012 report, “[w]hen services were

10 provided, they were observed to be brief and limited with cases being closed without

11 observation of sustained behavior changes and few aftercare services in place. When

12 children were removed, delays between the time of referral and assessment were observed

13 to cause even longer delays before intervention was provided.”

14

127. Similarly, in its 2013 Report, the CRP found that “the continuum of services

15 . . . for families is limited.” According to the report, “comprehensive services were lacking

16 and existing services are unable to maintain long term change in these families.”

17

128. The CRP is not alone in noting unacceptable shortages and delays in the

18 provision of needed services. According to a 2012 report issued by DES’s own consultant,

19 “[a]s much as half of the time a child spends in [foster care] is spent waiting on services.”

20 More recently, the Office of the Auditor General’s report on DCS policy and practice

21 recognized the “[i]nadequate access to behavioral health services” for youth in foster care.

22

129. The Arizona Chapter of the Foster Family-Based Treatment Association

23 (“FFTA”) has also noted the severe shortage of mental health services delivered by

24 professional foster homes (also known as “therapeutic foster homes”) to children in state

25 foster care. These services, referred to in Arizona as “Home Care Training to Home Care

26 Client Services” (“HCTC”), are supposed to be available to children in state care who need

27 therapeutic family-based intervention. These therapeutic foster homes are administered by

28

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Case 2:15-cv-00185-ROS Document 1 Filed 02/03/15 Page 25 of 51

1 DHS through RBHAs. DCS pays room and board for children in state foster care placed in

2 HCTC homes.

3

130. There are currently only about 400 HCTC homes for more than 16,500

4 children in state foster care. Moreover, most of these homes are only licensed for 1 or 2

5 placements, severely limiting the number of children for whom these homes are available.

6 The severe shortage of HCTC homes places members of the General Class at an

7 unreasonable risk of deteriorating while in state care.

8

131. The shortage of HCTC providers, coupled with the short-term nature of

9 HCTC services (DHS has a practice of requiring such services to be re-authorized every 90

10 days), also subjects children in state care to emotionally harmful placement instability, as

11 children are moved out of HCTC homes far too soon after being placed there. The CRP’s

12 2013 Report specifically found that the HCTC placement structure “causes disruption

13 when a specialized placement is required to meet a child’s needs.” This placement

14 disruption causes children with higher needs to “yo-yo” up and down in terms of their

15 behaviors, thereby driving additional placement moves, which results in even further

16 unnecessary re-traumatization.

17

132. The Arizona Auditor General has also recognized the state’s practice of

18 failing to provide “long-term solutions for children in need of continued support” for their

19 mental health needs. According to the Auditor General’s Report, “[c]hildren whose

20 behavioral health improves in therapeutic foster homes may be moved to less restrictive

21 family settings, but without the same continued support, their behaviors may worsen,

22 resulting in placement disruptions and subsequent placement in congregate care.”

23

133. DCS and DHS further abdicate their legal duty to provide care for members

24 of the General Class by leaving the decision whether children should be placed in HCTC

25 homes to the six RBHAs that operate throughout the state, rather than allowing that

26 decision to be made by the children’s Child and Family Teams (“CFTs”). Making matters

27 worse, the RBHAs have different processes for determining whether HCTC should be

28 provided to the children in their geographic regions. As a result, the availability of HCTC

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Case 2:15-cv-00185-ROS Document 1 Filed 02/03/15 Page 26 of 51

1 turns in part on the fortuitous circumstance of where the member of the General Class

2 happens to live at the time HCTC is requested.

3

134. DCS caseworkers also fail to meet their obligation under agency policy to

4 participate in CFT meetings, including inter-agency meetings with DHS, that are a

5 prerequisite to members of the General Class receiving behavioral health services. When

6 DCS caseworkers do not join CFT meetings, essential information about a child’s needs is

7 not shared, treatment planning and referrals are held up, and services are delayed. These

8 deficiencies expose members of the General Class to an undue risk that they will not

9 receive the behavioral services they require, leading to a deterioration of the child’s

10 condition while in state custody.

11

135. Remarkably, even former DES Director Carter acknowledged at an

12 October 17, 2013 meeting of the CPS Oversight Committee that DES does not collect data

13 in a way that enables the child welfare agency to show that a particular set of family

14 interventions is effective. At the same meeting, Ms. Sotomayor, then Assistant Director

15 for the former DES Division of Children, Youth and Families, agreed that it is unclear

16 whether a number of services provided by DES “are appropriate or adequate” for families.

17

136. In addition to the lack of adequate mental health services, far too many

18 children in state foster care fail to receive needed physical health care services. According

19 to the state’s Practice Improvement Case Review (“PICR”) for 2013, DCS failed to

20 properly assess and address the children’s physical health needs in a third (34%) of the

21 cases reviewed. The same review found that 22% of children who had been in foster care

22 for more than 12 months had not received a comprehensive physical health examination.

23 In addition, more than 40% of children who had been in care for less than a year did not

24 receive an examination within 30 days as required by agency policy. Based on the same

25 2013 PICR, DCS had failed to assess and provide necessary services to address the

26 children’s mental health needs in nearly one in five cases reviewed.

27

137. Based on the 2012 PICR, the state failed to meet the physical health care

28 needs of children in state foster care in 49% of the cases reviewed.

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Case 2:15-cv-00185-ROS Document 1 Filed 02/03/15 Page 27 of 51

1

138. Moreover, according to the state’s own data, during federal fiscal year 2012,

2 36% of children in state foster care ages three to six did not receive well-care visits

3 required under the periodicity schedule that the state is required to establish under the

4 EPSDT provisions of the federal Medicaid Act. A nearly identical percentage of

5 adolescents in foster care likewise failed to receive such required health care visits.

6 Similar failures in providing such services to these age groups were reported for federal

7 fiscal years 2009, 2010 and 2011.

8

139. In addition, according to the state’s PICR for 2013, 34% of children who had

9 been in state care for more than six months were found not to have had a dental

10 examination within the most recent six months. During 2012, the number of children who

11 had missed required dentist visits was nearly four in ten.

12

140. The inadequacy of the health care services provided to the General Class

13 subjects these children to harm and/or an unreasonable risk of suffering ongoing physical

14 and emotional harm and deterioration while in state care.

15

141. A state assumes an affirmative duty under the Fourteenth Amendment to the

16 United States Constitution to protect a child from an unreasonable risk of harm once it

17 takes that child into its legal foster care custody.

18

142. Defendant Flanagan directly and indirectly controls and is responsible for the

19 child welfare policies and practices of DCS. The foregoing DCS policies and practices fail

20 to satisfy its affirmative duty to protect the General Class, including the Named Plaintiffs,

21 from an unreasonable risk of physical and emotional harm. These failures are a substantial

22 factor leading to, and proximate cause of, the ongoing violation of the General Class’s

23 constitutionally protected liberty and privacy rights.

24

143. Defendant Humble directly and indirectly controls and is responsible for the

25 policies and practices regarding the provision of mental and behavioral health services by

26 DHS. The foregoing DHS policies and practices fail to satisfy its affirmative duty to

27 protect the General Class, including the Named Plaintiffs, from an unreasonable risk of

28 emotional harm. These failures are a substantial factor leading to, and proximate cause of,

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Case 2:15-cv-00185-ROS Document 1 Filed 02/03/15 Page 28 of 51

1 the ongoing violation of the General Class’s constitutionally protected liberty and privacy

2 rights.

3

144. The foregoing policies and practices of DCS and DHS described herein

4 constitute a policy, pattern, custom and/or practice that shocks the conscience, is outside

5 the exercise of any professional judgment, and amounts to deliberate indifference to the

6 constitutionally protected rights and liberty and privacy interests of the Named Plaintiffs

7 and other members of the General Class. As a result, all members of the General Class

8 have been harmed or are being subjected to an ongoing unreasonable risk of harm, in

9 deprivation of their substantive due process rights guaranteed by the Fourteenth

10 Amendment to the United States Constitution.

11

145. These substantive due process rights include, but are not limited to: the right

12 of members of the General Class to protection from harm and unreasonable risk of harm

13 while in state foster care custody; the right to a living environment that protects the

14 physical, mental and emotional safety and well-being of the General Class; the right to

15 necessary treatment, care and services to prevent members of the General Class from

16 deteriorating or being harmed physically, psychologically or otherwise while in state care;

17 and the right to adequate caseworker supervision and monitoring of the General Class’s

18 safety and well-being.

19

146. As of September 30, 2014, there were 16,990 members of the General Class.

20 The General Class is sufficiently numerous to make individual joinder impracticable.

21

147. Named Plaintiffs’ First Cause of Action raises questions of fact and law that

22 are common to, and typical of, all members of the General Class. Such common questions

23 of fact include:

24

a. Whether DCS has a practice of failing to provide members of the

25

General Class with legally required medical and dental services necessary to keep

26

the General Class safe and properly cared for, and to prevent them from

27

deteriorating physically while in state custody;

28

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1

b. Whether DHS has a practice of failing to provide members of the

2

General Class with legally required mental and behavioral health services necessary

3

to keep the General Class safe and properly cared for, and to prevent them from

4

deteriorating emotionally and psychologically while in state custody; and

5

c. Whether DCS has a practice of failing to coordinate and ensure that

6

the General Class are provided with the legally required mental and behavioral

7

health services to keep the General Class safe and properly cared for, and to prevent

8

them from deteriorating emotionally and psychologically while in state custody.

9

148. Such common questions of law include whether DCS’s and DHS’s actions

10 and inactions violate the General Class’s substantive due process rights to be free from

11 harm and an unreasonable risk of harm while in state custody.

12

149. Named Plaintiffs will fairly and adequately protect the interests of the

13 General Class they seek to represent.

14

150. Named Plaintiffs and the putative General Class are represented by:

15

a. Attorneys employed by Coppersmith Brockelman PLC, a private law

16

firm based in Arizona with extensive experience in complex civil and public interest

17

litigation, including class action litigation;

18

b. Attorneys employed by the Arizona Center for Law in the Public

19

Interest, a nonprofit legal organization based in Phoenix whose attorneys also have

20

extensive experience in complex civil and public interest litigation, including class

21

action litigation; and

22

c. Attorneys employed by Children’s Rights, Inc., a nonprofit legal

23

organization whose attorneys have substantial experience and expertise in child

24

welfare class actions nationally.

25

151. The attorneys and organizations listed above have investigated all claims in

26 this action and have committed sufficient resources to represent the General Class.

27

28

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1

152. Each Named Plaintiff appears by a next friend, and each next friend is

2 sufficiently familiar with the facts of the child’s situation to fairly and adequately represent

3 the child’s interests in this litigation.

4

153. Defendants Flanagan and Humble have acted or failed to act on grounds

5 generally applicable to the General Class, necessitating declaratory and injunctive relief.

6 Plaintiffs’ counsel know of no conflicts between or among members of the General Class.

7

SECOND CAUSE OF ACTION – VIOLATION OF PLAINTIFFS’ RIGHTS

8

UNDER THE EPSDT PROVISIONS OF THE MEDICAID ACT

9

154. Paragraphs 1-153 above are repeated and re-alleged as if fully set forth

10 herein.

11

155. This claim is asserted against defendants Flanagan and Humble in their

12 official capacities on behalf of all members of the General Class who are eligible for

13 Medicaid (the “Medicaid Subclass”).

14

156. Medicaid is a joint federal-state program under Title XIX of the Social

15 Security Act, 42 U.S.C. § 1396, et seq., designed to provide medically necessary physical

16 and mental health care to, among others, eligible children.

17

157. States that choose to participate in the Medicaid program are reimbursed by

18 the federal government for a portion of the cost of providing Medicaid benefits. To

19 receive federal funds, states must comply with the requirements set forth in Title XIX of

20 the Social Security Act and its implementing regulations. Among those requirements,

21 states are required to develop state plans that identify the medical services available to

22 eligible beneficiaries.

23

158. Children in state foster care are eligible beneficiaries of Medicaid services

24 under 42 U.S.C. § 1396a(a)(10)(A)(i)(I).

25

159. Under 42 U.S.C. § 1396a(a)(10)(A) and 42 U.S.C. § 1396d(a)(4)(B), states are

26 required to provide EPSDT services to eligible children in state foster care. The required

27 screening services are set forth in 42 U.S.C. § 1396d(r)(1), while §§ 1396a(a)(43)(C) and

28 1396d(r)(5) require states to provide necessary health care, diagnostic services and treatment

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1 to correct or ameliorate defects or physical and mental illnesses and conditions discovered

2 by those screening services.

3

160. Under 42 U.S.C. § 1396d(r)(1)(A)(i) and 42 C.F.R. § 441.58, states are

4 required to establish periodicity schedules setting forth when the screening services

5 required under the Medicaid Act must be provided.

6

161. Moreover, under 42 U.S.C. § 1396a(a)(8) and 42 C.F.R. § 435.930(a), states

7 must provide EPSDT services with reasonable promptness.

8

162. The policy underlying the EPSDT mandate is to prevent illness, as well as to

9 ensure that health problems are comprehensively diagnosed and then treated as soon as

10 they are detected, before they become more complex and their treatment more costly.

11

163. Pursuant to a contract with the Arizona Health Care Cost Containment

12 System (“AHCCCS”), DCS serves as the statewide administrator responsible for the

13 provision of physical, dental, vision and hearing health care services, including screening,

14 diagnostic and treatment services, to members of the Medicaid Subclass. In that capacity,

15 DCS is legally obligated to ensure that members of the Medicaid Subclass receive such

16 medical services. DCS provides such medical services through CMDP.

17

164. DCS also determines the Medicaid eligibility of every child in state foster

18 care custody.

19

165. Pursuant to a contract with AHCCCS, DHS serves as the statewide

20 administrator responsible for the provision of mental and behavioral health care services,

21 including screening, diagnostic and treatment services, to members of the Medicaid

22 Subclass. In that capacity, DHS is legally obligated to ensure that members of the

23 Medicaid Subclass receive such medical services. DHS provides such services through

24 BHS, which, in turn, delivers these services through contracts with RBHAs across the

25 state.

26

166. Under Arizona’s EPSDT Periodicity Schedule, DCS is required to provide

27 annual physical examinations to members of the Medicaid Subclass who are age three and

28 older, and more frequent physical examinations to members of the Medicaid Subclass

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1 under age three. The state’s Periodicity Schedule further requires DCS to provide annual

2 vision screenings to members of the Medicaid Subclass ages 4-6, 8, 10 and 12 years old,

3 and semi-annual dental examinations to members of the Medicaid Subclass who are six

4 months of age or older.

5

167. DCS’s Policy and Procedure Manual further provides that it is the

6 responsibility of the DCS foster care caseworker to ensure that a child entering foster care

7 be given a complete medical examination that meets EPSDT requirements within 30 days

8 after initial placement in out-of-home care.

9

168. As for mental and behavioral health services, DHS is required under

10 Arizona’s EPSDT Periodicity Schedule to provide members of the Medicaid Subclass age

11 three and older with annual psychosocial/behavioral assessments. For members of the

12 Medicaid Subclass under the age of three, the Periodicity Schedule requires DHS to

13 provide more frequent psychosocial/behavioral assessments.

14

169. Under DHS policy, DHS is also responsible for conducting an Urgent

15 Response assessment of every child within 24 hours of removal from his or her home to

16 detect both initial and delayed effects of trauma.

17

170. Defendants have a practice of failing to provide members of the Medicaid

18 Subclass with the screening, diagnostic and treatment services required under the EPSDT

19 provisions of the Medicaid Act, in violation of 42 U.S.C. §§ 1396a(a)(10)(A)(i)(I),

20 1396a(a)(43)(C), 1396d(a)(4)(B) and 1396d(r).

21

171. Defendants also have a practice of failing to provide such services with

22 reasonable promptness, in violation of 42 U.S.C. § 1396a(a)(8) and 42 C.F.R. § 435.930(a).

23

172. The foregoing policies and practices of defendant Flanagan, who directly and

24 indirectly controls and is responsible for the policies and practices of DCS, and defendant

25 Humble, who directly and indirectly controls and is responsible for the policies and

26 practices of DHS, violate the rights of Named Plaintiffs and the Medicaid Subclass under

27 the Medicaid Act.

28

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1

173. As of September 30, 2014, there were over 10,000 members of the Medicaid

2 Subclass. The Medicaid Subclass is sufficiently numerous to make individual joinder

3 impracticable.

4

174. Named Plaintiffs’ Second Cause of Action raises questions of fact and law

5 that are common to, and typical of, all members of the Medicaid Subclass. Such common

6 questions of fact include:

7

a. Whether DCS has a practice of failing to provide members of the

8

Medicaid Subclass with screening services that comply with the state’s Periodicity

9

Schedule;

10

b. Whether DCS has a practice of failing to provide members of the

11

Medicaid Subclass with medically necessary diagnostic and treatment services;

12

c. Whether DHS has a practice of failing to provide members of the

13

Medicaid Class with screening services that comply with the state’s Periodicity

14

Schedule; and

15

d. Whether DHS has a practice of failing to provide members of the

16

Medicaid Subclass with medically necessary diagnostic and treatment services.

17

175. Such common questions of law include whether DCS’s and DHS’s actions

18 and inactions violate the Medicaid Subclass’s rights under the EPSDT provisions of the

19 federal Medicaid Act.

20

176. Named Plaintiffs will fairly and adequately protect the interests of the

21 Medicaid Subclass they seek to represent.

22

177. Named Plaintiffs and the putative Medicaid Subclass are represented by:

23

a. Attorneys employed by Coppersmith Brockelman PLC, a private law

24

firm based in Arizona with extensive experience in complex civil and public interest

25

litigation, including class action litigation;

26

b. Attorneys employed by the Arizona Center for Law in the Public

27

Interest, a nonprofit legal organization based in Phoenix whose attorneys also have

28

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1

extensive experience in complex civil and public interest litigation, including class

2

action litigation; and

3

c. Attorneys employed by Children’s Rights, Inc., a nonprofit legal

4

organization whose attorneys have substantial experience and expertise in child

5

welfare class actions nationally.

6

178. The attorneys and organizations listed above have investigated all claims in

7 this action and have committed sufficient resources to represent the Medicaid Subclass.

8

179. Each Named Plaintiff appears by a next friend, and each next friend is

9 sufficiently familiar with the facts of the child’s situation to fairly and adequately represent

10 the child’s interests in this litigation.

11

180. Defendants Flanagan and Humble have acted or failed to act on grounds

12 generally applicable to the Medicaid Subclass, necessitating declaratory and injunctive

13 relief. Plaintiffs’ counsel know of no conflicts between or among members of the

14 Medicaid Subclass.

15 THIRD CAUSE OF ACTION – VIOLATION OF PLAINTIFFS’ SUBSTANTIVE

16

DUE PROCESS RIGHTS UNDER THE U.S. CONSTITUTION

17

181. Paragraphs 1-180 above are repeated and re-alleged as if fully set forth

18 herein.

19

182. This claim is asserted on behalf of the General Class against defendant

20 Flanagan in his official capacity.

21

Members of the General Class Are Not Receiving Timely Investigations of

22

Reports That They Have Been Maltreated in State Custody.

23

183. In late 2013, it was publicly disclosed for the first time that the State had

24 failed to investigate 6,600 reports of alleged child abuse and neglect between 2009 and

25 2013, choosing instead to simply set those reports aside. In July 2014, it was disclosed

26 that in another 14,000 cases, no documentation had been entered in the child’s or family’s

27 case file for 60 days or more through April 2014.

28

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1

184. While the legislation passed on May 29, 2014 attempts to address those

2 enormous backlogs, DCS’s failure to complete child maltreatment investigations in a

3 timely manner is not limited to those 20,600 reports and cases. In fact, DCS is also failing

4 to initiate and complete investigations in a timely manner of reports that children have

5 been abused or neglected while in state care. DES’s own consultants acknowledged in

6 2012 that foster care workers “often have a backlog” of new maltreatment reports

7 involving children in state custody.

8

185. According to the state’s own data, during federal fiscal year 2012, the state

9 failed to initiate investigations into 36% of all reports that children in state foster care

10 custody had been abused or neglected, within the time frames required under state policy.

11 During the six-month period from October 1, 2012 through March 31, 2013, 54% of all

12 investigations involving children in state care were initiated late.

13

186. State law and agency policy further requires that the outcomes of child

14 maltreatment investigations be entered into the State’s child welfare information database

15 within 45 days and that investigations be closed within 60 days. However, according to

16 state data, during the six-month period from October 1, 2012 to March 31, 2013, the State

17 failed to meet this 60-day deadline in the large majority of investigations involving

18 children already in state care, regardless of the level of risk to which members of the

19 General Class were exposed. In fact, 72% of investigations into high risk reports involving

20 a present danger to children in state care were still not closed after 60 days; 73% of

21 investigations into reports involving an impending danger to children in care were not

22 closed in a timely manner; 72% of investigations into reports that children in care had been

23 abused or neglected within the past 30 days were not closed within the required period;

24 and 78% of investigations were not closed within the required timeframe where the reports

25 involved children in state care who had been abused or neglected more than 30 days prior,

26 the date of the last occurrence of abuse or neglect was unknown, or the child was exposed

27 to an unreasonable risk of harm.

28

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1

187. These widespread delays in initiating and completing investigations into

2 reported child abuse and neglect subject members of the General Class to an unreasonable

3 risk of physical and emotional harm while in state care.

4

188. A state assumes an affirmative duty under the Fourteenth Amendment to the

5 United States Constitution to protect a child from an unreasonable risk of harm once it

6 takes that child into its legal foster care custody.

7

189. Defendant Flanagan directly and indirectly controls and is responsible for the

8 child welfare policies and practices of DCS. The foregoing DCS policies and practices fail

9 to satisfy its affirmative duty to protect the General Class, including the Named Plaintiffs,

10 from an unreasonable risk of physical and emotional harm. These failures are a substantial

11 factor leading to, and proximate cause of, the ongoing violation of the General Class’s

12 constitutionally protected liberty and privacy rights.

13

190. The foregoing policies and practices of DCS described herein constitute a

14 policy, pattern, custom and/or practice that shocks the conscience, is outside the exercise

15 of any professional judgment, and amounts to deliberate indifference to the constitutionally

16 protected rights and liberty and privacy interests of the Named Plaintiffs and other

17 members of the General Class. As a result, all members of the General Class have been

18 harmed or are being subjected to an ongoing unreasonable risk of harm, in deprivation of

19 their substantive due process rights guaranteed by the Fourteenth Amendment to the

20 United States Constitution.

21

191. These substantive due process rights include, but are not limited to: the right

22 of members of the General Class to protection from harm and unreasonable risk of harm

23 while in state foster care custody; the right to a living environment that protects the

24 physical, mental and emotional safety and well-being of the General Class; the right to

25 necessary treatment, care and services to prevent members of the General Class from

26 deteriorating or being harmed physically, psychologically or otherwise while in state care;

27 and the right to adequate caseworker supervision and monitoring of the General Class’s

28 safety and well-being.

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1

192. As of September 30, 2014, there were 16,990 members of the General Class.

2 The General Class is sufficiently numerous to make individual joinder impracticable.

3

193. Named Plaintiffs’ Third Cause of Action raises questions of fact and law that

4 are common to, and typical of, all members of the General Class. Such common questions

5 of fact include whether DCS has a practice of failing to conduct timely investigations into

6 reports that members of the General Class have been abused or neglected while in state

7 foster care custody.

8

194. Such common questions of law include whether DCS’s actions and inactions

9 violate the General Class’s substantive due process rights to be free from harm and an

10 unreasonable risk of harm while in state custody.

11

195. Named Plaintiffs will fairly and adequately protect the interests of the

12 General Class they seek to represent.

13

196. Named Plaintiffs and the putative General Class are represented by:

14

a. Attorneys employed by Coppersmith Brockelman PLC, a private law

15

firm based in Arizona with extensive experience in complex civil and public interest

16

litigation, including class action litigation;

17

b. Attorneys employed by the Arizona Center for Law in the Public

18

Interest, a nonprofit legal organization based in Phoenix whose attorneys also have

19

extensive experience in complex civil and public interest litigation, including class

20

action litigation; and

21

c. Attorneys employed by Children’s Rights, Inc., a nonprofit legal

22

organization whose attorneys have substantial experience and expertise in child

23

welfare class actions nationally.

24

197. The attorneys and organizations listed above have investigated all claims in

25 this action and have committed sufficient resources to represent the General Class.

26

198. Each Named Plaintiff appears by a next friend, and each next friend is

27 sufficiently familiar with the facts of the child’s situation to fairly and adequately represent

28 the child’s interests in this litigation.

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1

199. Defendant Flanagan has acted or failed to act on grounds generally

2 applicable to the General Class, necessitating declaratory and injunctive relief. Plaintiffs’

3 counsel know of no conflicts between or among members of the General Class.

4

FOURTH CAUSE OF ACTION – VIOLATION OF PLAINTIFFS’

5 SUBSTANTIVE DUE PROCESS RIGHTS UNDER THE U.S. CONSTITUTION

6

200. Paragraphs 1-199 above are repeated and re-alleged as if fully set forth

7 herein.

8

201. This claim is asserted against Defendant Flanagan in his official capacity on

9 behalf of all members of the General Class, except those children who are or will be in a

10 kinship placement (the “Non-Kinship Subclass”).

11

A. The Non-Kinship Subclass Suffers from a Severe Shortage of Foster

12

Homes.

13

202. The State has failed to provide members of the Non-Kinship Subclass with an

14 adequate number and array of foster care placements. The severe shortage of foster care

15 placements frequently results in the State placing members of the Non-Kinship Subclass in

16 the first available bed, rather than selecting placements based on the children’s needs.

17

203. While Arizona’s population of children in out-of-home care has grown by

18 56% from September 2009 to March 2014, the number of Arizona foster families has only

19 increased by 9%, and the percentage of children placed in licensed foster homes has

20 decreased by 9%, during the same time period.

21

204. As of September 30, 2014, there were 9,418 children in state foster care who

22 were not placed with relatives or in trial home reunification settings. Nevertheless, the

23 State reported that it had licensed only 4,397 foster homes to accept children in state care.

24 Moreover, these foster homes provided only 5,669 available spaces that could potentially

25 match the needs of the children in DCS’s custody. Even assuming that each of these

26 spaces matched the needs of the Non-Kinship Class, 3,749 class members would still be

27 without a foster home.

28

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Case 2:15-cv-00185-ROS Document 1 Filed 02/03/15 Page 39 of 51

1

205. A spokeswoman for DCS acknowledged in July 2014 that the department

2 “desperately needs more foster families to care for the increased number of children in out-

3 of-home care.”

4

206. A recent DCS report stated that “[h]omes are needed for children of all ages,

5 however the most significant shortages of homes are for teens, sibling groups, and children

6 who have complex medical needs.” The agency admits that “[t]here is a significant need

7 for additional foster and adoptive homes in all areas of Arizona.”

8

207. According to a recent audit by the Arizona Auditor General, the state “has not

9 adequately implemented” performance-based contracting in the contracts it has entered into

10 with private child placing agencies to recruit foster parents, identify and arrange child

11 placement options, and supervise and monitor licensed foster parents. The audit also found

12 that the state has not developed policies and procedures for monitoring the performance

13 measures in its contracts, has not used performance measure data to assess contractor

14 performance, and has not adequately designed the contracts to incentivize performance.

15

208. In addition to the inadequate recruiting of new foster homes, a 2012 survey

16 conducted by Arizona State University noted that programs and financial benefits available

17 to foster families have been drastically cut in recent years due to severe budget constraints.

18 For example, in 2009, the state cut foster family reimbursement rates and allowances for

19 clothing.

20

209. The scarcity of foster homes in Arizona is a well-known problem. In 2012,

21 The Arizona Republic reported that “[t]he state is in dire need of families to care for

22 children removed from their homes because of suspected abuse or neglect. But families

23 leave the foster care system faster than new ones come in. Many who leave say it’s not

24 necessarily the children who have caused them to turn in their license but their frustration

25 with the system’s inability to help them.”

26

210. Defendant Flanagan has also acknowledged to members of the state

27 legislature that there are many instances when children have slept in agency offices

28 because the agency did not have a placement for them.

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1

211. In fact, according to a recent press account, over just a six-day span from

2 September 28 to October 4, 2014, 36 members of the Non-Kinship Subclass spent at least

3 one night in DCS office buildings in Maricopa and Pima counties. Of those 36 children,

4 10 were between 2 and 5 years old, 11 were between 6 and 12 years old, and 15 were

5 between 13 and 18 years old. According to Gene Burns, who supervises DCS after-hours

6 units, “[i]n the 17 years [he has] been here, the biggest shock to [him] is when [DCS]

7 bought cribs” for the young children sleeping at DCS’s offices. As he acknowledged,

8 “[t]his is not the place to put a kid.”

9

B. Because of the Shortage of Foster Homes, Members of the Non-Kinship

10

Subclass Are Frequently Placed Far from Their Home Communities.

11

212. DCS’s failure to maintain an adequate array of foster homes harms members

12 of the Non-Kinship Subclass by causing them to be placed, or putting them at an

13 unreasonable risk of being placed, far from their home communities. Such placements

14 disconnect members of the Non-Kinship Subclass from family, friends and neighbors, and

15 frequently lead to highly disruptive changes in schooling.

16

213. Only 31% of all children in foster care as of September 30, 2012, for whom

17 removal and current zip code information was available, were placed within the same zip

18 code as their homes. Moreover, nearly half of these children were placed outside their

19 home city.

20

214. Consultants retained by DES reported that in 2011, almost 60% of children

21 in state care were placed over an hour from their homes. As the consultant recognized,

22 “[t]his makes parent visits and services difficult and contributes to Ongoing staff driving

23 more hours and spending more time away from their other cases.”

24

C. Because of the Shortage of Foster Homes, Members of the Non-Kinship

25

Subclass Are Frequently Separated from Their Siblings.

26

215. For children entering state foster care, siblings can serve as a crucial buffer

27 against the emotional upheaval of being separated from their parents. Sibling relationships

28 can also promote resilience as children navigate the trauma of removal. In recognition of

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Case 2:15-cv-00185-ROS Document 1 Filed 02/03/15 Page 41 of 51

1 the importance of maintaining sibling relationships, federal law requires states to make

2 reasonable efforts to place siblings together, unless contrary to a sibling’s safety or well-

3 being – a requirement echoed in Arizona state policy.

4

216. DCS’s failure to maintain an adequate array of foster homes harms members

5 of the Non-Kinship Subclass by causing them to be separated, or putting them at an

6 unreasonable risk of being separated, from their siblings. As of September 30, 2013, the

7 State failed to place all siblings together in 35% of cases, and failed to place at least two

8 siblings together in 24% of cases. Based on information the state submitted to the federal

9 government in 2012, in nearly 40% of cases when at least two siblings entered out-of-

10 home care, the State failed to place them together. The State’s performance was nearly as

11 bad every year from 2008 through 2011. A DES official acknowledged in 2012 that it had

12 become more difficult to place siblings in the same home because of the shortage of foster

13 families and because more children stay in care longer.

14

217. A state assumes an affirmative duty under the Fourteenth Amendment to the

15 United States Constitution to protect a child from an unreasonable risk of harm once it

16 takes that child into its legal foster care custody.

17

218. Defendant Flanagan directly and indirectly controls and is responsible for the

18 child welfare policies and practices of DCS. The foregoing DCS policies and practices fail

19 to satisfy its affirmative duty to protect the Non-Kinship Subclass, including the Named

20 Plaintiffs, from an unreasonable risk of physical and emotional harm. These failures are a

21 substantial factor leading to, and proximate cause of, the ongoing violation of the Non-

22 Kinship Subclass’s constitutionally protected liberty and privacy rights.

23

219. The foregoing policies and practices of DCS described herein constitute a

24 policy, pattern, custom and/or practice that shocks the conscience, is outside the exercise

25 of any professional judgment, and amounts to deliberate indifference to the constitutionally

26 protected rights and liberty and privacy interests of the Named Plaintiffs and other

27 members of the Non-Kinship Subclass. As a result, all members of the Non-Kinship

28 Subclass have been harmed or are being subjected to an ongoing unreasonable risk of

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1 harm, in deprivation of their substantive due process rights guaranteed by the Fourteenth

2 Amendment to the United States Constitution.

3

220. These substantive due process rights include, but are not limited to: the right

4 of members of the Non-Kinship Subclass to protection from harm and unreasonable risk of

5 harm while in state foster care custody; the right to a living environment that protects the

6 physical, mental and emotional safety and well-being of the Non-Kinship Subclass; the

7 right to necessary treatment, care and services to prevent members of the Non-Kinship

8 Subclass from deteriorating or being harmed physically, psychologically or otherwise

9 while in state care; and the right to adequate caseworker supervision and monitoring of the

10 Non-Kinship Subclass’s safety and well-being.

11

221. As of September 30, 2014, there were 9,454 members of the Non-Kinship

12 Subclass. The Non-Kinship Subclass is sufficiently numerous to make individual joinder

13 impracticable.

14

222. Named Plaintiffs’ Fourth Cause of Action raises questions of fact and law

15 that are common to, and typical of, all members of the Non-Kinship Subclass. Such

16 common questions of fact include:

17

a. Whether DCS maintains an adequate number and array of foster home

18

placements for members of the Non-Kinship Subclass; and

19

b. Whether a shortage of foster homes subjects members of the Non-

20

Kinship Subclass to an unreasonable risk of being placed far from their families,

21

schools and home communities.

22

223. Such common questions of law include whether DCS’s actions and inactions

23 violate the Non-Kinship Subclass’s substantive due process rights to be free from harm

24 and an unreasonable risk of harm while in state custody.

25

224. Named Plaintiffs will fairly and adequately protect the interests of the Non-

26 Kinship Subclass they seek to represent.

27

225. Named Plaintiffs and the putative Non-Kinship Subclass are represented by:

28

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1

a. Attorneys employed by Coppersmith Brockelman PLC, a private law

2

firm based in Arizona with extensive experience in complex civil and public interest

3

litigation, including class action litigation;

4

b. Attorneys employed by the Arizona Center for Law in the Public

5

Interest, a nonprofit legal organization based in Phoenix whose attorneys also have

6

extensive experience in complex civil and public interest litigation, including class

7

action litigation; and

8

c. Attorneys employed by Children’s Rights, Inc., a nonprofit legal

9

organization whose attorneys have substantial experience and expertise in child

10

welfare class actions nationally.

11

226. The attorneys and organizations listed above have investigated all claims in

12 this action and have committed sufficient resources to represent the Non-Kinship Subclass.

13

227. Each Named Plaintiff appears by a next friend, and each next friend is

14 sufficiently familiar with the facts of the child’s situation to fairly and adequately represent

15 the child’s interests in this litigation.

16

228. Defendant Flanagan has acted or failed to act on grounds generally

17 applicable to the Non-Kinship Subclass, necessitating declaratory and injunctive relief.

18 Plaintiffs’ counsel know of no conflicts between or among members of the Non-Kinship

19 Subclass.

20

FIFTH CAUSE OF ACTION – VIOLATION OF PLAINTIFFS’ RIGHTS TO

21

FAMILY INTEGRITY UNDER THE U.S. CONSTITUTION

22

229. Paragraphs 1-228 above are repeated and re-alleged as if fully set forth herein.

23

230. This claim is asserted against Defendant Flanagan in his official capacity on

24 behalf of all members of the General Class who have been assigned a permanency goal of

25 family reunification (the “Reunification Subclass”).

26

231. Despite the fact that over 50% of children in state care have a permanency

27 goal of family reunification, the State is failing to preserve family relationships after

28 children are removed from their homes.

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1

232. One of the principal ways that states preserve the family relationships of

2 children in foster care is to place siblings together when they are removed from their

3 homes, as required under federal and state law. In 2012, however, Arizona failed to place

4 siblings together in nearly 40% of cases when at least two siblings entered out-of-home

5 care. As of September 30, 2013, the state failed to place all siblings together in 35% of

6 cases, and failed to place at least two siblings together in 24% of cases.

7

233. Moreover, as alleged in paragraphs 212-214 above, the state routinely places

8 children in its care far from their home communities, knowingly interfering with their

9 ability to maintain connections with their families.

10

234. Another way that states preserve the family relationships of children in foster

11 care is to place such children, when appropriate, with one or both biological parents on a

12 “trial reunification” basis, while maintaining legal custody over the child. Arizona,

13 however, systematically fails to do so. As of September 30, 2014, only 0.21% of children

14 in state custody (36 out of 16,990 children) were placed with their parents on a trial

15 reunification basis.

16

235. As of September 30, 2013, only 0.29% of children in out-of-home care (23

17 of the 7,875 children) who had a permanency goal of family reunification were in a trial

18 reunification placement.

19

236. Similarly, only 1.6% of the children in care who exited to reunification

20 during federal fiscal year 2012 (60 out of 3,684) were in a trial home visit placement at the

21 time of exit. The national average was 37.5%. Moreover, only 0.5% of children in

22 custody during federal fiscal year 2012 (97 out of 21,267) had a most recent placement

23 type of trial home visit. The national average was 11.0%.

24

237. When children in state custody are not placed with their families on a trial

25 reunification basis, DCS is under a legal duty to coordinate contact between these children

26 and their biological parents, as well as any siblings from whom the child may have been

27 separated when taken into custody. The state has recognized that “there is a strong

28 correlation between consistent and timely visitation and positive outcomes for children

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44

Case 2:15-cv-00185-ROS Document 1 Filed 02/03/15 Page 45 of 51

1 who have been removed from their home. Regular parent-child visitation, along with CPS

2 Specialists’ visits with the child, are both associated with achieving permanency and other

3 indicators of child well-being.”

4

238. For 2012, however, the state reported that barely half (51%) of children in

5 out-of-home care whose cases were reviewed as part of the child welfare agency’s PICR

6 had visits with their parents and siblings at a frequency consistent with the child’s safety

7 and best interests. During calendar year 2013, a similarly low percentage of children

8 (56%) whose cases were reviewed in connection with the PICR had adequate visits with

9 parents and siblings.

10

239. The State’s poor performance in coordinating family visits is no surprise

11 given the long wait lists that children in foster care face before being provided with

12 transportation to and from, and supervision of, family visits. As of October 2013, there

13 were 475 families waiting for such visitation services. Remarkably, the State does not

14 even track how long families have been waiting for those services.

15

240. The State further impairs family relationships by routinely failing to comply

16 with its obligation to make monthly contact with the biological parents of children in state

17 foster care. During the six-month period from April 1, 2014 through September 30, 2014,

18 1,213 out of 2,528 (48.0% of) parents of children in foster care with a case plan goal of

19 reunification did not receive required visits from a state child welfare caseworker.

20

241. Likewise, during the six-month period from October 1, 2013 through

21 March 31, 2014, 1,152 out of 2,496 (46.2% of) parents of children in foster care with a

22 case plan goal of reunification did not receive required visits from a state caseworker.

23

242. DCS recently reported that during 2013, caseworkers made concerted efforts

24 to have adequate contact with mothers in only 36% of cases reviewed, and with fathers in

25 only 18% of cases reviewed.

26

243. Not surprisingly, given the state’s failure to make adequate contact with the

27 biological parents of children in foster care, the agency also systematically fails to involve

28 those parents in their children’s case planning. During 2013, the state made concerted

{00152017.2 }

45

Case 2:15-cv-00185-ROS Document 1 Filed 02/03/15 Page 46 of 51

1 efforts to actively involve the child’s mother in case planning in only slightly more than

2 half (54%) of cases reviewed, and to involve the father in little more than a third (36%) of

3 cases. According to DCS, “[c]ase plans are not consistently developed and reassessed

4 within required timeframes.”

5

244. An all too predictable result of the state’s failure to preserve family

6 relationships is that far too few members of the Reunification Subclass are reunified with

7 their families. Moreover, when reunification does occur, it takes far too long.

8

245. The amount of time that members of the Reunification Class spend in out-of-

9 home care before being reunified with their families has also increased over time.

10 According to data prepared for the state, the percentage of children who reunified within

11 90 days decreased from 30% for children who entered state foster care in 2008 to 18% for

12 children who entered such care in 2012; the percentage of children who reunified within

13 six months fell from 35% for the 2008 entry group to 23% for the 2012 entry group; and

14 the percentage of children who reunified within one year fell from 44% for the 2008 entry

15 group to 37% for the 2012 entry group.

16

246. DCS is aware of its poor performance. According to a 2014 agency report,

17 “[c]ompared to prior years, children are now less likely to exit to reunification, and they

18 experience longer lengths of stay before reunifying.”

19

247. The foregoing DCS practices interfere with the right to family integrity held

20 by members of the Reunification Subclass, and subject them to emotional harm and an

21 unreasonable risk of emotional harm.

22

248. Defendant Flanagan directly and indirectly controls and is responsible for the

23 policies and practices of DCS. The foregoing policies and practices fail to satisfy DCS’s

24 affirmative duty to protect the welfare of the Reunification Subclass, which failure is a

25 substantial factor leading to, and a proximate cause of, the violation of the constitutionally

26 protected liberty interests, privacy interests and associational rights of all members of the

27 Reunification Subclass.

28

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Case 2:15-cv-00185-ROS Document 1 Filed 02/03/15 Page 47 of 51

1

249. The foregoing policies and practices of DCS amount to a policy, pattern,

2 custom and/or practice that is outside the exercise of any professional judgment and

3 amounts to deliberate indifference to the Reunification Subclass’s constitutional rights.

4 As a result, all members of the Reunification Subclass are being deprived, or are at

5 unreasonable risk of being deprived, of their liberty interests, privacy interests and

6 associational rights conferred on them by the First, Ninth, and Fourteenth Amendment to

7 the United States Constitution not to be deprived of child-parent or child-sibling family

8 relationships.

9

250. The Reunification Subclass has thousands of members and is therefore

10 sufficiently numerous to make individual joinder impracticable.

11

251. Named Plaintiffs’ Fifth Cause of Action raises questions of fact and law that

12 are common to, and typical of, all members of the Reunification Subclass. Such common

13 questions of fact include:

14

a. Whether DCS engages in a practice of placing members of the

15

Reunification Subclass far from their home communities;

16

b. Whether DCS engages in a practice of failing to place members of the

17

Reunification Subclass in trial home reunification settings;

18

c. Whether DCS engages in a practice of failing to coordinate contact

19

between members of the Reunification Class and their biological families;

20

d. Whether DCS engages in a practice of failing to make required

21

monthly contact with the biological parents of members of the Reunification

22

Subclass; and

23

e. Whether DCS engages in a practice of failing to involve the biological

24

parents of members of the Reunification Subclass in the case planning of those

25

children.

26

252. Such common questions of law include whether DCS’s actions and inactions

27 violate the Reunification Subclass’s rights to family integrity, guaranteed by the First,

28 Ninth, and Fourteenth Amendments to the United States Constitution.

{00152017.2 }

47

Case 2:15-cv-00185-ROS Document 1 Filed 02/03/15 Page 48 of 51

1

253. Named Plaintiffs will fairly and adequately protect the interests of the

2 Reunification Subclass they seek to represent.

3

254. Named Plaintiffs and the putative Reunification Subclass are represented by:

4

a. Attorneys employed by Coppersmith Brockelman PLC, a private law

5

firm based in Arizona with extensive experience in complex civil and public interest

6

litigation, including class action litigation;

7

b. Attorneys employed by the Arizona Center for Law in the Public

8

Interest, a nonprofit legal organization based in Phoenix whose attorneys also have

9

extensive experience in complex civil and public interest litigation, including class

10

action litigation; and

11

c. Attorneys employed by Children’s Rights, Inc., a nonprofit legal

12

organization whose attorneys have substantial experience and expertise in child

13

welfare class actions nationally.

14

255. The attorneys and organizations listed above have investigated all claims in

15 this action and have committed sufficient resources to represent the Reunification

16 Subclass.

17

256. Each Named Plaintiff appears by a next friend, and each next friend is

18 sufficiently familiar with the facts of the child’s situation to fairly and adequately represent

19 the child’s interests in this litigation.

20

257. Defendant Flanagan has acted or failed to act on grounds generally

21 applicable to the Reunification Subclass, necessitating declaratory and injunctive relief.

22 Plaintiffs’ counsel know of no conflicts between or among members of the Reunification

23 Subclass.

24

PRAYER FOR RELIEF

25

WHEREFORE, the Named Plaintiffs respectfully request that this Court:

26

A. Assert jurisdiction over this action;

27

B. Order that this action be maintained as a class action pursuant to Rule 23(b)(2),

28 Fed. R. Civ. P.;

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Case 2:15-cv-00185-ROS Document 1 Filed 02/03/15 Page 49 of 51

1

C. Declare unconstitutional and unlawful pursuant to Rule 57, Fed. R. Civ. P.:

2

1. DCS’s and DHS’s violation of plaintiffs’ substantive rights to be free

3

from harm and unreasonable risk of harm under the Due Process Clause of the

4

Fourteenth Amendment to the United States Constitution;

5

2. DCS’s violation of the Reunification Subclass’s rights to family

6

integrity under the First, Ninth, and Fourteenth Amendments to the United States

7

Constitution;

8

3. DCS’s and DHS’s violation of plaintiffs’ rights under 42 U.S.C.

9

§§ 1396a(a)(8), 1396a(a)(10)(A)(i)(I), 1396a(a)(43)(C), 1396d(a)(4)(B) and

10

1396d(r);

11

D. Permanently enjoin DCS and DHS from subjecting plaintiffs to practices that

12 violate their rights;

13

E. Order appropriate remedial relief to ensure DCS’s and DHS’s future

14 compliance with their legal obligations to plaintiffs, including, but not limited to, the

15 following:

16

1. Health Care Services Provided to Children in State Care. DCS

17

and DHS shall establish and implement practices to ensure that all members of the

18

General Class receive the physical, mental and behavioral health services to which

19

they are entitled under the federal substantive Due Process Clause. Likewise, DCS

20

and DHS shall establish and implement practices to ensure that all members of the

21

Medicaid Subclass receive the physical, mental and behavioral health services to

22

which they are entitled under the EPSDT provisions of the federal Medicaid Act.

23

2. Availability of Necessary Resources for the Placement of

24

Children. DCS shall establish and implement practices to ensure a minimally

25

adequate capacity and array of placements to meet the placement needs of the Non-

26

Kinship Class, including foster and HCTC homes.

27

3. Family Contact and Visitation. DCS shall establish and implement

28

practices providing for minimally adequate visitation between members of the

{00152017.2 }

49

Case 2:15-cv-00185-ROS Document 1 Filed 02/03/15 Page 50 of 51

1

Reunification Subclass and their biological parents and siblings. DCS shall also

2

establish and implement practices to adequately provide for siblings in the

3

Reunification Subclass to be placed together in foster care.

4

4. Caseworker Investigations. DCS shall establish and implement

5

practices providing for minimally adequate investigations into reports that members

6

of the General Class have been abused or neglected.

7

5. Parent-Caseworker Contacts. DCS shall establish and implement

8

practices providing for minimally adequate caseworker visits with the biological

9

parents of members of the Reunification Subclass and for the involvement of such

10

parents in the case planning of members of the Reunification Subclass.

11

6. Monitoring/Enforcement. The provisions of the Court order entered

12

pursuant to Fed. R. Civ. P. 65(d) shall be monitored by a neutral expert monitor

13

appointed by the Court. In addition, the Court shall have continuing jurisdiction to

14

oversee compliance with that order;

15

F. Award to the Named Plaintiffs the reasonable costs and expenses incurred in

16 the prosecution of this action, including reasonable attorneys’ fees, pursuant to 28 U.S.C.

17 § 1920 and 42 U.S.C. § 1988, and Fed. R. of Civ. P. 23(e) and (h); and

18

G. Grant such other and further equitable relief as the Court deems just,

19 necessary and proper to protect Named Plaintiffs, the General Class, the Medicaid

20 Subclass, the Non-Kinship Subclass and the Reunification Subclass from further harm and

21 unreasonable risk of harm by DCS and DHS.

22

23

Respectfully submitted this 3rd day of February, 2015.

24

COPPERSMITH BROCKELMAN PLC

25

By s/ Roopali H. Desai

26

Keith Beauchamp

Roopali H. Desai

27

Shelley Tolman

28

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Case 2:15-cv-00185-ROS Document 1 Filed 02/03/15 Page 51 of 51

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
{00152017.2 }

ARIZONA CENTER FOR LAW IN THE PUBLIC INTEREST
Anne C. Ronan Timothy M. Hogan 514 West Roosevelt Street Phoenix, Arizona 85003 CHILDREN’S RIGHTS, INC. William Kapell Julia L. Davis 330 Seventh Avenue, Fourth Floor New York, New York 10001 Attorneys for Plaintiffs
51

 
 Case 2:15-cv-00185-ROS Document 51 Filed 09/29/15 Page 1 of 30

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8 Margaret Tinsley, et al.,

No. CV-15-00185-PHX-ROS

9

Plaintiffs,

ORDER

10 v.

11 Gregory McKay, et al.,

12

Defendants.

13

14

Plaintiffs, minors in the custody of the Arizona foster care system, allege

15 widespread systemic failures in state child welfare agencies “expos[e] them to . . .

16 physical and emotional harm and unreasonable risk of harm” in violation of their

17 constitutional rights. (Doc. 37 at 2). Defendants moved the Court abstain and dismiss the

18 second amended complaint (the “complaint”) pursuant to Federal Rule of Civil Procedure

19 12(b)(1) and the Younger and O’Shea abstention doctrines. (Doc. 41).

20

BACKGROUND

21

According to the complaint, the number of children involved in foster care in

22 Arizona has substantially increased since 2003. Consequently, as of September 30, 2014,

23 16,990 children were receiving out-of-home care through Arizona’s foster care system.

24 The complaint alleges the increases were precipitated by budget cuts affecting programs

25 which provide in-home services to children and support services for families.

26

The complaint recounts in detail the experiences of the ten named Plaintiffs,

27 children ranging from three to fourteen years of age in foster care custody. There are

28 several common threads in their statements. All named Plaintiffs allegedly failed to

Case 2:15-cv-00185-ROS Document 51 Filed 09/29/15 Page 2 of 30

1 receive necessary physical and/or mental healthcare, were separated from siblings who

2 were also in the foster care system, and experienced frequent relocations and school

3 transfers. Many allegedly suffered ill-prepared, neglectful, and abusive foster parents and

4 inattentive caseworkers. As a result, Plaintiffs allegedly became suicidal, including a 9-

5 year-old child, suffered physical and mental trauma, and experienced significant

6 educational disruption.

7

Plaintiffs claim their experiences were caused by a number of “structural and

8 operational failures [which] continue to plague the state’s child welfare system.” (Doc.

9 37). These failures include: 1) a shortage of and inaccessibility to physical, mental, and

10 behavioral health services; 2) widespread failure to conduct timely investigations of

11 reports that children have been maltreated while in state foster care; 3) a shortage of

12 family foster homes; and 4) widespread failure to engage in basic child welfare practices

13 aimed at maintaining family relationships, such as placing siblings together, placing

14 children with their biological parents on a trial reunification basis, coordinating visits

15 between children in state foster care and their biological families, and having

16 caseworkers make regular visits with the biological parents of children to monitor

17 progress toward family reunification.

18

Defendants are the directors of three state agencies: Defendant Gregory McKay is

19 Director of the Department of Child Safety (“DCS”), which is responsible for managing

20 the state’s child welfare system; Defendant Cara M. Christ is Director of the Department

21 of Health Services (“DHS”), which provides mental and behavioral health services to

22 children in the state foster care system; and Defendant Thomas J. Betlach is Director of

23 the Arizona Health Care Cost Containment System (“AHCCCS”), which administers and

24 supervises the state’s Medicaid program. Plaintiffs maintain these individuals are

25 responsible for administering the foster care system and they have been aware of but have

26 failed to address the problems outlined in the complaint. Plaintiffs seek declaratory and

27 injunctive relief for alleged violations of substantive due process rights under the

28

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Case 2:15-cv-00185-ROS Document 51 Filed 09/29/15 Page 3 of 30

1 Fourteenth Amendment;1 rights under the Medicaid Act;2 and the right to family integrity 2 under the First, Ninth, and Fourteenth Amendments.3 The prayer for relief requests a

3 permanent injunction barring Defendants from violating their rights, the establishment

4 and implementation of policies and practices addressing each of the alleged violations,

5 and appointment of a neutral expert to monitor progress and compliance.

6

Defendants move to dismiss the complaint because the Court allegedly lacks

7 subject matter jurisdiction under Rule 12(b)(1), arguing the Younger and O’Shea

8 abstention doctrines apply. Defendants maintain the foster children’s ongoing

9 dependency proceedings in the Arizona juvenile courts preclude the relief sought by

10 Plaintiffs. However, Plaintiffs argue their claims rest solely on actions of the child

11 welfare agencies and they are not challenging any aspect of any particular dependency

12 proceeding. Preliminary background regarding Arizona juvenile courts and agencies is

13 required.

14 I. Role of Juvenile Courts

15

In Arizona, “[a]ny interested party may file a petition to commence proceedings in

16 the juvenile court alleging that a child is dependent.” A.R.S. § 8-841. Typically, such a

17 petition is filed by DCS after an investigation into the child’s living conditions and

18 removal of the child from the home. See A.R.S. §§ 8-222; 8-223. After a child is

19 removed, the juvenile court holds a preliminary protective hearing to decide whether the

20 child should remain in DCS’s temporary custody pending a determination of dependency.

21 A.R.S. § 8-824. The juvenile court then holds a dependency hearing to determine whether

22 the child is in need of assistance or placement either because the child has no guardian

23

24

1 Including, but not limited to, the right to protection from harm and unreasonable

25

risk of harm while in state custody as a result of lack of medical care, failure to investigate mistreatment, and failure to provide adequate foster homes. (See Doc. 37 at

26 29).

27

2 Specifically, the early and periodic screening, diagnostic, and treatment provisions. 42 U.S.C. § 1396a, et seq.

28

3 Plaintiffs define the right to family integrity as including Plaintiffs’ liberty

interests, privacy interests, and associational rights under these amendments.

- 3 -

Case 2:15-cv-00185-ROS Document 51 Filed 09/29/15 Page 4 of 30

1 responsible for care or the guardian is unable to provide the necessary care. See A.R.S. §

2 8-844. If the child is determined dependent, the juvenile court “may enter orders

3 awarding a dependent child,” subject to the supervision of DCS, to the care of the parents

4 or to another member of the child’s family, or to an institution, association, agency (such

5 as DCS), a school, an independent living program, or to a “reputable citizen of good

6 moral character.” A.R.S. § 8-845(A). In deciding where to place the child, the juvenile

7 court must consider the goals of the placement and appropriateness of the case plan.

8 A.R.S. § 8-845(B). The juvenile court is required to seek to reunite families, where

9 possible, and order a permanency plan that maximizes the child’s contact with siblings,

10 either through co-placement or frequent visitation, unless doing so would not be in the 11 child’s best interest. A.R.S. § 8-845(C).4 “[I]f the child has been removed from the home,

12 the court shall order [DCS] to make reasonable efforts to provide services to the child and

13 the child’s parent.” A.R.S. § 8-846(A).

14

After the dependency hearing, the juvenile court reviews the child’s case every six

15 months. A.R.S. § 8-447(A). The periodic review hearings are an opportunity for the

16 juvenile court to reassess the well-being of the child, monitor progress toward the child’s

17 goals, and determine if the child continues to be dependent. A.R.S. § 8-847(D)-(E) (“At

18 [the] periodic review hearing, the [juvenile] court shall consider the health and safety of

19 the child as a paramount concern. . . . [and] shall determine[] [w]hether [DCS] has

20 identified and assessed placement of the child with a relative or person who has a

21 significant relationship with the child. . . . [and] [w]hether the [child’s] guardian has

22 complied with the court order . . . ”).

23

At each six-month review, the court also determines whether the child’s guardian

24 has complied with court orders and whether the child is still dependent. A.R.S. § 8-

25 447(D), (E). And the court has the authority to “punish a person for contempt of court

26 for wilfully [sic] violating, neglecting or refusing to obey or perform any lawful order of

27

28

4 Although the juvenile court ultimately approves and issues the permanency plan in the form of a court order, it appears the plan is created and presented to the court by

DCS. See A.R.S. § 8-845(C).

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Case 2:15-cv-00185-ROS Document 51 Filed 09/29/15 Page 5 of 30

1 the juvenile court or for obstructing or interfering with the proceedings of the juvenile

2 court or the enforcement of its orders.” A.R.S. § 8-247. Within twelve months of removal

3 of a child older than three years, the juvenile court must hold a permanency hearing to

4 determine the “most appropriate plan” for the child’s permanent guardianship. A.R.S. §

5 8-862.

6

The six-month reviews are based on progress reports prepared and submitted by

7 DCS, which must include:

8 1. An assessment of the extent to which the division or agency is

9

accomplishing the purpose of foster care for the child as described in the

10

case plan. 2. An assessment of the appropriateness of the case plan.

11

3. The length of time the child has been in foster care.

4. The number of foster home placements the child has experienced while

12

in foster care and the length of each placement.

13 A.R.S. § 8-516(E). At each six-month review, the juvenile court also receives findings

14 and recommendations from a local foster care review board; and the court must address

15 these findings and recommendations on the record.5 A.R.S. § 8-515.03.

16 II. Role of Child Welfare Agencies

17

DCS’s “primary purpose . . . is to protect children.” A.R.S. § 8-451(B). It is

18 charged with placing children in safe living environments and coordinating with DHS,

19 AHCCCS, and others to provide children with court-ordered healthcare and other

20 services aimed at promoting the safety and well-being of all children. See A.R.S. §§ 8-

21 451(B)(2), (4); 8-457; 8-512.

22

If the juvenile court assigns custody of a removed child to DCS, the agency may

23

24

25

5 The local foster care review board consists of at least five members appointed by the presiding judge of the juvenile court in each county. A.R.S. § 8-515.01(A) (“Each

26

board shall, to the maximum extent feasible, represent the various socioeconomic, racial and ethnic groups of the county in which it serves.”). These boards also report to the

27

court the progress of DCS and child welfare agencies in carrying out orders of the court and “[p]romote and encourage” the agencies to “maximize stability and family continuity

28

for children in foster care by discouraging unnecessary changes in the placement of foster children and by recruiting foster parents who may be suitable and eligible as adoptive

parents.” A.R.S. § 8-515.03.

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Case 2:15-cv-00185-ROS Document 51 Filed 09/29/15 Page 6 of 30

1 subsequently place the child with a parent or relative, in a licensed foster home,

2 therapeutic foster care, group home, or a residential treatment facility. A.R.S. § 8-514(A),

3 (B). DCS and its subdivisions determine the eligibility and licensing procedures for foster

4 parents and foster homes and maintain responsibility for providing training and

5 supervision of such homes. A.R.S. §§ 8-503(4)(b)-(h); 8-509; 8-516. DCS is responsible

6 for investigating all allegations and risks of harm involving children, including those in

7 foster homes. See A.R.S. §§ 8-503(4)(h)(i); 8-453(A)(19); 8-456. And DCS may deny an

8 application, suspend, or revoke a foster parent’s license for violations of state statutes

9 governing child welfare. A.R.S. § 8-506. If the agency decides to extend a child’s stay in

10 a foster home for more than three weeks, it must obtain the approval of the juvenile court.

11 A.R.S. § 8-515(A).

12

DCS may remove a child from a foster home without prior court approval. A.R.S.

13 § 8-515.05(A). See also A.R.S. § 8-517 (“The division or agency that placed the child

14 may withdraw a child from a foster home [] when the division or agency determines that

15 withdrawal is according to written, specific standards and is clearly necessary for the

16 child’s interests and welfare.”). If a foster parent disagrees with the removal, the parent

17 can challenge it at a case conference before the juvenile court and members of a foster

18 care review board. A.R.S. § 8-515.05(B), (C). If, at the conclusion of the case conference,

19 both sides still disagree and the child is currently in the physical custody of the foster

20 parent, a member of the foster care review board is required to make a recommendation

21 to the court and the court then decides whether the physical custody should change.

22 A.R.S. § 8-515.05(D).

23

If a child has been removed from the home, DCS must “make reasonable efforts to

24 place that child with the child’s siblings or, if that is not possible, to maintain frequent

25 visitation or other ongoing contact between the child and the child’s siblings unless a

26 court determines . . . [either] would be contrary to the child’s or a sibling’s safety or well-

27 being.” A.R.S. § 8-513(D). A child in foster care also has a “right to maintain contact

28 with friends and other relatives unless the court has determined that contact is not in the

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Case 2:15-cv-00185-ROS Document 51 Filed 09/29/15 Page 7 of 30

1 child’s best interests.” A.R.S. § 8-513(C).

2

For all children in voluntary placement, DCS custody, or custody of the probation

3 department, DCS collaborates with DHS and AHCCCS to “provide comprehensive

4 medical and dental care,” A.R.S. § 8-512(A), and to “determine the most efficient and

5 effective way to provide [that care].” A.R.S. § 8-512(B).

6

ANALYSIS

7 I. Legal Standard for Rule 12(b)(1) Motion and Request to Abstain

8

Plaintiffs describe Defendants’ motion as presenting a “facial” rather than

9 “factual” challenge to the Court’s jurisdiction. Courthouse News Serv. v. Planet, 750 F.3d

10 776, 780 (9th Cir. 2014). Defendants do not contest this characterization. Assuming it is

11 accurate, the Court must accept the allegations in the complaint “as true and draw[] all

12 reasonable inferences in [Plaintiffs’] favor.” Leite v. Crane Co., 749 F.d 1117, 1121 (9th

13 Cir. 2014). “Once challenged, the party asserting subject matter jurisdiction has the

14 burden of proving its existence.” Rattlesnake Coal. v. E.P.A., 509 F.3d 1095, 1102 n. 1

15 (9th Cir. 2007). Therefore, accepting Defendants’ motion as framed by Plaintiffs, it is

16 Plaintiffs’ burden to establish abstention is not required or should not be granted.

17

Though not raised by the parties, the Court notes that there is debate about

18 whether invoking abstention is a challenge to federal jurisdiction.6 Typically this matters

19 because the party bearing the burden may differ depending on how the challenge is

20 categorized. For example, unlike a challenge to jurisdiction, the Second Circuit has noted

21

22

6 The Ninth Circuit, like the Supreme Court, has alternatively described abstention

23

as jurisdictional and not jurisdictional. Compare Canatella v. California, 404 F.3d 1106, 1113 (9th Cir. 2005) (“Younger abstention is essentially a jurisdictional doctrine.”) with

24

Benavidez v. Eu, 34 F.3d 825, 829 (9th Cir. 1994) (“Younger abstention is not jurisdictional, but reflects a court’s prudential decision not to exercise jurisdiction which

25

it in fact possesses . . . .”). Compare Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619, 626 (1986) (explaining Younger abstention “does not arise from lack

26

of jurisdiction in the District Court, but from strong policies counseling against the exercise of such jurisdiction where particular kinds of state proceedings have already

27

been commenced”) with Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 100 n.3 (1998) (noting Supreme Court has treated Younger abstention as “jurisdictional”). See

28

also Erwin Chemerinsky, Federal Jurisdiction § 13.2, at 828-829 (5th ed. 2007) (noting lack of clarity regarding whether Younger “announce[d] a constitutional bar to federal

court relief” or a prudential one).

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Case 2:15-cv-00185-ROS Document 51 Filed 09/29/15 Page 8 of 30

1 a defendant bears the burden of establishing one of the prerequisites for abstention.

2 Philip Morris, Inc. v. Blumenthal, 123 F.3d 103, 106 (2d Cir. 1997) (placing burden on

3 the state to establish Younger abstention). In this case, however, determining precisely

4 who bears the burden of proof is unnecessary because the result is the same even

5 assuming the burden of proof rests solely with Plaintiffs.

6 II. Younger and O’Shea Abstentions

7

The motion to dismiss invokes two closely related abstention doctrines: abstention

8 under Younger v. Harris, 401 U.S. 37 (1971), and abstention under O’Shea v. Littleton,

9 414 U.S. 488 (1974). These two doctrines will be analyzed separately, but the

10 background for both begins with the recognition that federal courts have a “virtually

11 unflagging” obligation to exercise the jurisdiction given to them by Congress and the

12 Constitution. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800,

13 817 (1976) (“Abstention from the exercise of federal jurisdiction is the exception, not the

14 rule.”). Only in unusual instances do principles of comity in relation to state courts

15 warrant federal court abstention. See generally Younger v. Harris, 401 U.S. 37 (1971).

16

A. Background of Younger and Its Progeny

17

In Younger v. Harris, the Supreme Court held a federal court could not enjoin a

18 pending state court criminal prosecution absent extraordinary circumstances, namely bad

19 faith or harassment. 401 U.S. 37, 41, 54 (1971) (“[N]ational policy forbid[s] federal

20 courts [from] stay[ing] or enjoin[ing] pending state court proceedings except under

21 special circumstances.”) (emphasis added). The “underlying reason” for the ruling was:

22

[T]he notion of “comity,” that is, a proper respect for state functions, a

23

recognition of the fact that the entire country is made up of a Union of

24

separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are

25

left free to perform their separate functions in their separate ways.

26 Id. at 44.

27

Younger doctrine has both expanded and contracted over the years. In Huffman v.

28 Pursue, Ltd., the Supreme Court extended Younger doctrine to a state civil enforcement

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Case 2:15-cv-00185-ROS Document 51 Filed 09/29/15 Page 9 of 30

1 proceeding. 420 U.S. 592 (1975). The decision was based, in part, on the Court’s finding

2 that the state proceedings were “in important respects [] more akin to a criminal

3 prosecution than are most civil cases” because the state was a party to the action and the 4 nuisance statute involved was closely related to criminal statutes on obscenity.7 Id. at

5 604-605 (“[W]hile in this case the District Court’s injunction has not directly disrupted

6 Ohio’s criminal justice system, it has disrupted that State’s efforts to protect the very

7 interests which underlie its criminal laws and to obtain compliance with precisely the 8 standards which are embodied in its criminal laws.”).8

9

The Supreme Court has also classified “the temporary removal of a child in a

10 child-abuse context” as a state proceeding “in aid of and closely related to criminal

11 statutes.” Moore v. Sims, 442 U.S. 415, 423 (1979) (citing Huffman, 420 U.S. at 604)

12 (emphasis added). In Moore, the Court characterized Huffman as standing for the

13 proposition that Younger applied to “civil proceedings in which important state interests

14 are involved.” Id. at 423. The importance of a state’s interest in a particular proceeding

15 may be due to the state’s presence as a party; the statute or executive action involved is

16 “in aid of and closely related to [state] criminal statutes”; “the presence of such other

17 vital concerns as enforcement of contempt proceedings”; “or the vindication of

18 ‘important state policies such as safeguarding the fiscal integrity of [public assistance]

19 programs.’” Id. Even if one of these factors applies, however, the Supreme Court held

20 abstention is only proper if the plaintiff will be able “to press his claim in the state

21 courts.” Id. at 432.

22

In Juidice v. Vail, the Supreme Court once again clarified and expanded Younger,

23

24

7 The civil statute in question provided for the closure of any place which

25

exhibited obscene films pursuant to nuisance law, while other state criminal statutes prohibited the dissemination of obscene materials. Id. at 596, 604.

26

8 The Supreme Court clarified that Younger abstention applies both to pre- and

27

post-trial state court proceedings where a litigant has not yet exhausted state appellate remedies. Id. at 609 (“Federal post-trial intervention, in a fashion designed to annul the

28

results of a state trial, also deprives the States of a function which quite legitimately is left to them, that of overseeing trial court dispositions of constitutional issues which arise

in civil litigation over which they have jurisdiction.”).

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Case 2:15-cv-00185-ROS Document 51 Filed 09/29/15 Page 10 of 30

1 holding the “principles . . . [were] not confined solely to the types of state actions which

2 were sought to be enjoined in [Younger and Huffman], . . . [but that] the ‘more vital

3 consideration’ . . . [lay] in ‘the notion of ‘comity,’ . . . [and that] [t]hese principles apply

4 to a case in which the State’s contempt process is involved.” 430 U.S. 327, 334-335

5 (1977). The plaintiffs in Juidice had been held in contempt by state court judges for

6 disobeying subpoenas to appear at proceedings brought by their creditors in an attempt to

7 collect a judgment. The debtors brought a class action in federal court seeking to enjoin

8 enforcement of the statutes granting state courts the power of contempt, arguing the

9 statutes violated the Fourteenth Amendment. Id. at 329-330. In holding Younger

10 precluded the injunction, the Court reasoned:

11 A State’s interest in the contempt process, through which it vindicates the

12

regular operation of its judicial system, so long as that system itself affords

13

the opportunity to pursue federal claims within it, is surely an important interest. Perhaps it is not quite as important as is the State’s interest in the

14

enforcement of its criminal laws, Younger, [] or even its interest in the

maintenance of a quasi-criminal proceeding such as was involved in

15

Huffman[]. But we think it is of sufficiently great import to require

16

application of the principles of those cases. The contempt power lies at the

core of the administration of a State’s judicial system. 17

18 Id. at 335.

19

The Supreme Court later summarized Younger jurisprudence as applying to three

20 types of cases: 1) criminal proceedings; 2) quasi-criminal proceedings; and 3)

21 “proceedings involving certain orders that are uniquely in furtherance of the state courts’

22 ability to perform their judicial functions.” New Orleans Pub. Serv., Inc. v. Council of

23 City of New Orleans, 491 U.S. 350, 368 (1989) (NOPSI).

24

But in NOPSI, the Supreme Court emphasized a limitation of the Younger doctrine

25 material to this case: It does not “require[] abstention in deference to a state judicial

26 proceeding reviewing legislative or executive action. [As] [s]uch a broad abstention

27 requirement would make a mockery of the rule that only exceptional circumstances

28 justify a federal court’s refusal to decide a case in deference to the States.” Id.

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Case 2:15-cv-00185-ROS Document 51 Filed 09/29/15 Page 11 of 30

1

Not long after NOPSI, in Middlesex County Ethics Committee v. Garden State Bar

2 Association, the Court further identified three factors that together warrant abstention: 1)

3 “an ongoing state judicial proceeding”; 2) which “implicate[s] important state interests”;

4 and 3) in which “there [is] an adequate opportunity . . . to raise constitutional challenges.”

5 457 U.S. 423, 432 (1982). For many years, lower courts treated these factors as the

6 established test for Younger abstention. However very recently, in Sprint

7 Communications Inc. v. Jacobs, the Supreme Court made clear that the three factors

8 enumerated in Middlesex are actually additional factors to be considered once a court

9 establishes the ongoing state proceeding is quasi-criminal in nature. 134 S. Ct. 584, 593

10 (2013) (“Divorced from their quasi-criminal context, the three Middlesex conditions

11 would extend Younger to virtually all parallel state and federal proceedings, at least

12 where a party could identify a plausibly important state interest.”).

13

Thus, Sprint arguably narrowed the application of Younger abstention. In doing so,

14 the Supreme Court emphasized Younger is “exceptional,” that federal courts have an

15 overarching duty to “entertain and resolve on the merits [actions] within the scope of a

16 jurisdictional grant,” and the “general rule” that “[t]he pendency of an action in [a] state

17 court is no bar to proceedings concerning the same matter in the Federal court having

18 jurisdiction.” 134 S. Ct. 584, 588 (2013) (citations and internal quotation marks omitted).

19 Once again, the Supreme Court established “Younger extends [only] to [] three

20 ‘exceptional circumstances’”: 1) ongoing state criminal prosecutions; 2) ongoing state

21 civil enforcement proceedings; and 3) ongoing state civil proceedings involving certain

22 orders uniquely in furtherance of state courts’ ability to perform judicial functions. Id. at

23 594.

24

Following Sprint, the Ninth Circuit held Younger abstention is appropriate in civil

25 cases “only when the state proceedings: (1) are ongoing, (2) are quasi-criminal

26 enforcement actions or involve a state’s interest in enforcing the orders and judgments of

27 its courts, (3) implicate an important state interest, and (4) allow litigants to raise federal

28 challenges.” ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 759

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Case 2:15-cv-00185-ROS Document 51 Filed 09/29/15 Page 12 of 30

1 (9th Cir. 2014). Once these threshold requirements are met, the Ninth Circuit considers a

2 fifth issue involving abstention; that is, whether “[t]he requested relief [] seek[s] to

3 enjoin—or ha[s] the practical effect of enjoining—ongoing state proceedings.” Id. at 758.

4 Accordingly, while the test for invoking Younger abstention has varied over time, it is

5 now clearly established that analysis of each factor in relation to the facts alleged in the

6 complaint is required.

7

B. Whether Younger Applies to the Present Case

8

Defendants contend Younger requires abstention in this case pursuant to the two

9 categories of civil cases to which the doctrine applies. They argue the injunctive relief

10 Plaintiffs seek would interfere with the state juvenile court’s ability to perform its judicial

11 functions and that the case is related to ongoing proceedings in the state juvenile court

12 which are quasi-criminal in nature. Plaintiffs maintain Younger abstention is not required

13 because the relief sought is “systemic” in nature and targets state agencies, not the

14 juvenile court.

15

i. There are ongoing state court proceedings.

16

In order for Younger to apply, Plaintiffs must be involved in an ongoing state court

17 proceeding. Defendants argue each named Plaintiff and putative class member is

18 presently involved in an ongoing, individual juvenile court proceeding. Plaintiffs do not

19 appear to dispute they are subject to the ongoing oversight of the juvenile courts. This

20 Court then will assume the juvenile courts ongoing jurisdiction over dependent children

21 and case-by-case periodic review hearings satisfy the first prong of Younger. See A.R.S.

22 §§ 8-202(G); 8-447.

23

ii. The ongoing state court proceedings are not quasi-criminal nor do

24

they involve Arizona’s interest in enforcing orders of its courts.

25

The next step is to determine whether the proceedings are either quasi-criminal or

26 involve the state’s interest in enforcing the orders of its courts. If the state court

27 proceedings do not fall into either one of these two categories, Younger abstention is not

28 appropriate. Defendants argue the juvenile court proceedings satisfy both categories

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Case 2:15-cv-00185-ROS Document 51 Filed 09/29/15 Page 13 of 30

1 while Plaintiffs argue they satisfy neither.

2

a. Quasi-Criminal

3

Defendants argue the proceedings are quasi-criminal because the juvenile court

4 has “substantial and continuous exclusive authority in all aspects of child dependency

5 cases,” including those involving child abuse. (Doc 49 at 5). Plaintiffs argue the ongoing

6 state court proceedings are not quasi-criminal because their purpose is to review

7 executive action and not enforce criminal laws.

8

Defendants primarily rely on Moore v. Sims, in which the Supreme Court held

9 proceedings ordering the temporary removal of children in the context of alleged child-

10 abuse were quasi-criminal. 442 U.S. 415, 423 (1979). The Moore Court did not clarify

11 the reasoning behind this decision other than to state: “the State [] was a party . . . [and]

12 the temporary removal of a child in the child-abuse context is, like the public nuisance

13 statute involved in Huffman, ‘in aid of and closely related to criminal statutes.’” Id.

14

But in a class action on behalf of Massachusetts’ foster children, Connor B. ex rel.

15 Vigurs v. Patrick, a district court distinguished Moore, holding:

16

Defendants’ argument fails to appreciate that Plaintiffs’ claims relate only

17

to alleged injuries suffered while in [Massachusetts’ Department of Children and Families (“DCF”)] custody. [P]roceedings [whereby juvenile

18

courts place children in state custody due to abuse or neglect by their

parents] are the means by which Plaintiffs enter DCF custody, and

19

Plaintiffs expressly state that they are not challenging any aspect of those

20

proceedings in this case.

21 771 F. Supp. 2d 142, 154 (D. Mass. 2011).

22

Like the Massachusetts case, this case does not concern temporary removal

23 proceedings but rather involves, to some extent, periodic review hearings which take

24 place once a child is determined dependent and placed in state custody. In Arizona,

25 proceedings to remove a child from the familial home and periodic reviews while in state 26 custody are distinct. They are governed by different provisions of state law.9 And the

27

28

9 Removal proceedings are governed by Chapter 9 and periodic reviews by

Chapter 10 of Title 8, Article 4 of the Arizona Revised Statutes.

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Case 2:15-cv-00185-ROS Document 51 Filed 09/29/15 Page 14 of 30

1 procedures for affecting the temporary removal of a child in Arizona do not involve a 2 finding of dependency.10 See A.R.S. § 8-821. While the six-month status reviews only

3 take place if a child has been determined dependent by the juvenile court. See A.R.S. § 8-

4 841 et seq.

5

Although many of the children in the putative class may have entered the foster

6 care system amid circumstances of abuse and neglect prohibited by the criminal law, as

7 in the Massachusetts case, the complaint addresses the experiences children have after

8 they are determined dependent and placed in state custody, not the proceedings which led

9 to that custody. In Moore, by contrast, the state court proceeding was an emergency

10 removal of children due to allegations of abuse. The proceedings had been and were

11 ongoing because the children had only been removed on a temporary basis, pending

12 further findings. The state court proceedings in Moore were not those described here.

13

The animating purpose of the ongoing dependency proceedings in this case is to

14 plan for and monitor the development and well-being of children, not to investigate or

15 penalize those who might have contributed to their dependency. A.R.S. § 8-847(D) (“At
16 any periodic review hearing, the court shall consider the health and safety of the child as
17 a paramount concern”). The type of proceedings here employs a conciliatory approach. In 18 addition to representatives from state child welfare agencies, parents,11 relatives, foster 19 parents, shelter care facility personnel, and others are invited to participate in the review 20 proceedings and share their views on the child’s best interest. A.R.S. § 8-847(B).

21

22

10 In Arizona, the temporary removal of a child may be affected in one of two ways. First, an interested person may petition the juvenile court for an order by stating,

23

under oath, “reasonable grounds exist to believe that temporary custody is clearly necessary to protect the child from suffering abuse or neglect.” A.R.S. § 8-821(A).

24

Second, a peace officer, a child welfare investigator, or a child safety worker may take a child into temporary custody without an order from the juvenile court “if temporary

25

custody is clearly necessary to protect the child because probable cause exists to believe that the child is: 1. A victim or will imminently become a victim of abuse or neglect[; or]

26

2. Suffering serious physical or emotional injury that can only be diagnosed by a medical doctor or psychologist[; or] 3. Physically injured as a result of living on premises where

27

dangerous drugs or narcotic drugs are being manufactured[;] . . . [or] 4. Reported by the department to be a missing child at risk of serious harm.” A.R.S. § 8-821(B). Children

28 may not remain in temporary custody for more than 72 hours. A.R.S. § 8-821(F).

11 As long as they have not relinquished or had their parental rights terminated.

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Case 2:15-cv-00185-ROS Document 51 Filed 09/29/15 Page 15 of 30

1 Although the state is a party in the proceedings and is responsible for investigating

2 children’s circumstances and is required to produce a report for the court, the state’s

3 investigations and reports are not prepared for the primary or secondary purpose of

4 enforcing criminal laws. See A.R.S. § 8-516(E). In sum, periodic reviews differ from

5 emergency removals like the one at issue in Moore, where an immediate threat of

6 criminal harm warranted the removal of children from the custody of the parents without

7 a hearing. Rather, the juvenile court reviews here have an indirect relationship to the

8 enforcement of criminal laws. They do not qualify as quasi-criminal for purposes of

9 Younger.

10

b. State Interest in Enforcing State Court Orders and

Judgments

11

12

Even if the state court proceedings satisfactorily establish they are not quasi-

13 criminal in nature, Younger abstention may apply if the proceedings involve the state’s

14 interest in enforcing the orders and judgments of its courts. Defendants argue the

15 equitable relief Plaintiffs seek would interfere with the juvenile courts’ determinations of

16 foster children’s placements, visitation, and health care services, as well as its power to

17 enforce its own orders through contempt proceedings. Defendants cite references in the

18 complaint to instances in which state agencies have allegedly failed to comply with

19 juvenile court orders and Defendants maintain: “[T]he remedy for non-compliance with a

20 state court judgment is contempt of state court, not a statewide class action in federal

21 court.” (Doc. 41 at 21) (emphasis in original). Plaintiffs argue this suit does not implicate

22 orders uniquely in furtherance of the state court’s ability to perform its judicial functions

23 because reversal or challenge of court orders is not sought here.

24

In order to determine whether this action implicates or would interfere with the

25 ability of state courts to perform judicial functions, the Court looks to the specific relief

26 sought in the complaint. See generally Gilbertson v. Albright, 381 F.3d 965 (9th Cir.

27 2004) (discussing development of Younger from suits involving equitable relief to those

28 involving declaratory and monetary relief). Plaintiffs seek an order directing Defendants

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Case 2:15-cv-00185-ROS Document 51 Filed 09/29/15 Page 16 of 30

1 to establish and implement broad and comprehensive practices to ensure:

2

1. “[Foster children] receive the physical, mental and behavioral health services to

3

which they are entitled” pursuant to substantive due process and the Medicaid Act;

4

2. “[A] minimally adequate capacity and array of [foster care] placements”;

5

3. “[M]inimally adequate visitation between [family] members”;

6

4. “[M]inimally adequate investigation into reports . . . [of] abuse[] or neglect[]”;

7

5. “[M]inimally adequate caseworker visits with the biological parents . . . and for

8

involvement of such parents in the case planning. . . .”

9 (Doc. 37 at 51-52). Plaintiffs also seek the appointment of a neutral monitor and the

10 Court’s continued oversight over compliance with its order of enforcement.

11

Plaintiffs argue the complaint targets only executive functions of Defendants’

12 agencies, not the judicial functions of the juvenile courts. Therefore, abstention is not

13 required relying on NOPSI. In NOPSI, the Supreme Court held Younger does not

14 “require[] abstention in deference to a state judicial proceeding reviewing legislative or

15 executive action.” New Orleans Pub. Serv., Inc. v. Council of City of New Orleans

16 (NOPSI), 491 U.S. 350, 368 (1989). Several district courts addressing the issue of

17 whether a federal foster care class action interferes with ongoing state court dependency

18 proceedings have similarly relied on NOPSI. See, e.g., M.D. v. Perry, 799 F. Supp. 2d

19 712, 718 (S.D. Tex. 2011). Those courts have generally held complaints seeking relief

20 from systemic problems in state foster care agencies “aid the ongoing state proceedings

21 [in juvenile court], [and do] not interfere with them.” Id. at 720. See also Kenny A. ex rel.

22 Winn v. Perdue, 218 F.R.D. 277, 286 (N.D. Ga. 2003) (“Although plaintiffs all have

23 periodic reviews before the state juvenile courts, the declaratory and injunctive relief

24 plaintiffs seek is not directed at their review hearings, or at Georgia’s juvenile courts,

25 juvenile court judges, or juvenile court personnel. Rather, plaintiffs seek relief directed

26 solely at executive branch defendants to remedy their alleged failures as plaintiffs’

27 custodians.”) (emphasis in original); Dwayne B. v. Granholm, No. 06-13548, 2007 WL

28 1140920, at *6 (E.D. Mich. Apr. 17, 2007) (“While it is true that Michigan has in place a

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Case 2:15-cv-00185-ROS Document 51 Filed 09/29/15 Page 17 of 30

1 juvenile court system that sets out procedures for bringing and maintaining a child under

2 that court’s jurisdiction and there may be some ongoing juvenile court proceedings for

3 individual foster care children, this lawsuit does not seek to interfere with any such

4 proceedings. The relief sought here is not directed at the juvenile courts. It is directed at 5 the executive branch.”).12

6

In fact, the Ninth Circuit has specifically recognized the absence of inherent

7 interference from a federal class action brought against the director of Arizona’s

8 executive agency in charge of foster care and proceedings before the Arizona juvenile

9 court. In L. H. v. Jamieson, a class of juveniles “adjudged dependent, neglected or

10 delinquent by Arizona state courts . . . [and] placed in private, child-caring facilities”

11 sought declaratory and injunctive relief seeking additional funding for the private

12 agencies caring for them while in state custody. 643 F.2d 1351 (9th Cir. 1981). Reversing

13 the district court’s decision to abstain under Younger, the court held “an order that would

14 require Arizona to spend more money to fund dispositional alternatives for juveniles in

15 state custody” may “affect pending and ongoing state juvenile proceedings” to the extent

16 of “enrich[ing the variety of dispositional alternatives available to a juvenile court judge”

17 but it would not “have the wholly disruptive consequences associated with enjoining a 18 state judicial proceeding.” Id. at 1354.13

19

Defendants also claim the prayer for relief is “artful pleading.” They insist the

20 allegations in the complaint tell a different story about the aims of the requested relief

21

22

12 Although these cases were decided before Sprint, in applying the Middlesex

23

factors, the courts essentially addressed the question the Supreme Court articulated in Sprint: whether the federal suit would interfere “with pending civil proceedings involving

24

certain orders . . . uniquely in furtherance of the state courts’ ability to perform their judicial functions.” Id. at 586 (internal quotation marks and citation omitted). These

25

rulings are relevant and consistent with Sprint because their analysis of interference involves many of the same factors considered in determining whether state court

26 proceedings involve the state’s interest in and ability to enforce the orders of courts.

27

13 The Court is cognizant the question under this prong of Younger is not whether the federal case would “have the wholly disruptive consequences associated with

28

enjoining [the] state judicial proceeding” but whether the federal suit would interfere with the functioning of the state court.

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Case 2:15-cv-00185-ROS Document 51 Filed 09/29/15 Page 18 of 30

1 and ask the Court to use those allegations as the basis for an examination under Younger.

2 Defendants argue Plaintiffs claims of harm coupled with allegations of frequent transfers

3 between foster homes, placements far from family members, lack of visitation between

4 children and family members, and more demonstrate the ultimate goal of interfering with

5 the juvenile courts’ power over placements, visitation, and health services through a

6 federal court order. But this argument ignores the standard articulated in 31 Foster

7 Children v. Bush, a case Defendants otherwise cite as authority. 329 F.3d 1255 (11th Cir.

8 2003). Again, there the court held a court must “look to the relief requested and the effect

9 it would have on the state proceedings,” not the allegations in the complaint, to determine

10 whether the federal action would interfere with the state court’s proceedings. Id. at 1276

11 (citing O’Shea v. Littleton, 414 U.S. 488, 499–502 (1974)) (plaintiffs in Foster Children

12 sought a district court-appointed panel with “authority to implement a systemwide plan to

13 revamp and reform dependency proceedings in Florida, as well as the appointment of a

14 permanent children’s advocate to oversee that plan.”). Furthermore, although the

15 complaint includes anecdotal evidence from individual children’s cases, these are

16 examples of the alleged broader phenomena the complaint describes and for which its

17 relief is requested.

18

Defendants also argue the juvenile court system of today bears no resemblance to

19 the system in 1981, the year Jamieson was decided. It is alleged the legislature has since

20 greatly expanded the juvenile courts’ role in deciding children’s placement, visitation,

21 and health services. But even under today’s statutes, although the juvenile courts can and

22 do order DCS, its subdivisions, and related agencies to provide children with placements,

23 visitation, and healthcare services, they do not have jurisdiction to monitor, or, more

24 important, control how the agencies are organized to provide these services. In other

25 words, the juvenile courts rule on individual cases, not how to remedy deficiencies in the

26 overall administration of foster care. As such, the requested relief would not interfere

27 with the functioning of the juvenile courts. See M.D. v. Perry, 799 F. Supp. 2d 712, 719

28 (S.D. Tex. 2011) (“Plaintiffs seek broad injunctive and declaratory relief aimed at

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Case 2:15-cv-00185-ROS Document 51 Filed 09/29/15 Page 19 of 30

1 improving the Texas foster care system as a whole, not to interrupt, alter, or in any other

2 manner change a particular state court placement review decision.”).

3

The Court will examine each aspect of Plaintiffs’ requested relief to ensure it

4 concerns systemic problems not individual cases.14

5

Placement: Defendants claim “Arizona law mandates that juvenile courts make all

6 placement decisions for dependent children.” (Doc. 41 at 8, 16). However, though the

7 juvenile court “may” order the placement of a child following a determination of

8 dependency, Arizona law permits DCS under some circumstances to place children in

9 foster homes subject only to ratification by the juvenile court. See A.R.S. § 8-514

10 (“[DCS] or a licensed child welfare agency if so authorized in its license may place a

11 child in a licensed foster home for care or for adoption.”); Antonio P. v. Arizona Dep’t of

12 Econ. Sec., 218 Ariz. 402, 404 (Ct. App. 2008) (discussing the authority of the juvenile

13 court to ratify or alter a foster placement). DCS does not need prior court approval to

14 change a placement unless the change is challenged by a third party. See A.R.S. § 8-

15 515.05 (statute governing challenges by foster parents to removal of foster children from

16 their care). DCS also determines the eligibility and licensing procedures for foster homes

17 and is responsible for supervising those homes. A.R.S. §§ 8-503(4)(b)-(h); 8-509; 8-516.

18 DCS may deny an application, suspend, or revoke a foster parent’s license for violations

19 of state statutes governing child welfare. A.R.S. § 8-506.

20

The request by Plaintiffs for “practices to ensure a minimally adequate capacity

21 and array of placements” by DCS does not interfere with the juvenile courts’ authority or

22

23

14 Defendants’ reliance on Peterson v. Babbitt, decided two years after Jamieson, is misplaced. 708 F.2d 465 (9th Cir. 1983). In Peterson, a father brought suit in federal

24

court alleging state child welfare agencies violated his constitutional rights by depriving him of visitation with his children. Id. Thus, the father was requesting relief from a single

25

decision of the child welfare agencies expressly subject to the juvenile court’s jurisdiction and review. By contrast, Plaintiffs are not challenging particular decisions directly

26

applicable in the juvenile court. The executive practices Plaintiffs challenge, for example, include not having effective systems in place to provide children with necessary care.

27

Although one could, in the course of a dependency proceeding, ask a juvenile court to review a specific agency decision regarding an individual child, the role of the court in

28

that specific instance would be to evaluate the constitutionality of the decision but not the constitutionality of the agency’s overall operating procedures, which affect all children in

state custody.

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Case 2:15-cv-00185-ROS Document 51 Filed 09/29/15 Page 20 of 30

1 ability to order initial child placements or to review the adequacy of placements. (Doc.

2 37). As such, the requested injunctive relief is not aimed at controlling the ultimate

3 placement of individual children in a foster home. Those individual decisions are within

4 the sole purview and oversight of the juvenile courts. This case focuses on DCS’s

5 processes for acquiring, screening, and licensing foster homes and its provision of enough

6 foster homes to house children entrusted to its care. The decision of the Court will not

7 disrupt individual placements or specific foster homes. See Sam M. ex rel. Elliott v.

8 Chafee, 800 F. Supp. 2d 363, 380 (D.R.I. 2011) (holding “increase[ing] the array and

9 types of available placements, are not within the province of the Family Court, although

10 they would assist in implementing the Family Court’s orders. [And] [w]ith respect to

11 those measures, ‘the mere possibility of inconsistent results in the future is insufficient to

12 justify Younger abstention.’”).

13

Visitation: Defendants argue because the juvenile courts have “broad discretion”

14 to hear and decide issues of visitation, abstention is required. (Doc. 41 at 9, 17). The

15 relief requested by Plaintiffs is for “DCS [to] establish . . . practices providing for

16 minimally adequate visitation between [family] members.” (Doc. 37).

17

DCS has an obligation to facilitate visitation between children, their siblings, and

18 other family members, as long as the juvenile court has not declared it against the best

19 interest of the child. A.R.S. § 8-613(C)-(D). In keeping with this obligation, the

20 permanency plan ordered or approved by the juvenile court at the disposition hearing

21 must “take[] into consideration the placement of the child with siblings or [] provide[] for

22 frequent visitation or contact between siblings unless the court determines that either . . .

23 would be contrary to the child’s or a sibling’s safety or well-being.” A.R.S. § 8-845(C).

24

The complaint does not allege Defendants or the juvenile courts fail to include

25 family visits in case plans. Rather, it discusses “poor performance in coordinating family

26 visits” and the “475 families waiting for such visitation services.” (Doc. 37 at 46)

27 (emphasis added). Like systems for ensuring the availability of enough quality

28 placements for foster children, creating systems for effectively coordinating visitation for

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Case 2:15-cv-00185-ROS Document 51 Filed 09/29/15 Page 21 of 30

1 foster children and their families does not require ordering visitation in individual cases.

2 An injunctive order addressing the broad-based issues described in the complaint would

3 focus on the resources available for facilitating visitation already deemed appropriate by

4 DCS and the juvenile courts.

5

Healthcare Services: Defendants likewise argue the juvenile courts have “day-to-

6 day oversight” over the health care of foster children and, as such, the request for relief

7 concerning health care services requires abstention. (Doc. 41 at 9, 17-18). Plaintiffs seek

8 an order directing DCS, DHS, and AHCCCS to “establish and implement practices to

9 ensure that all members of the [putative class] receive the physical, mental and behavioral

10 health services to which they are entitled” under substantive due process and the

11 Medicaid Act. (Doc. 37).

12

Defendants are presently obligated to provide foster children with a variety of

13 healthcare services. And the juvenile courts may order additional services not specifically

14 required by law, but which address the unique needs of a child serve the purpose of

15 providing for the safety and best interest of the child. Juvenile courts may, in their

16 discretion, order the parent, guardian or custodian of a child who “appears to be in need

17 of medical or surgical care” to provide treatment for a child. A.R.S. § 8-245(A). “If the

18 parent, guardian or custodian fails to provide the care as ordered, the juvenile court may

19 enter an order therefor.” A.R.S. § 8-245(A). The juvenile courts are also responsible for

20 approving motions for psychiatric assessments and residential treatment services. A.R.S.

21 § 8-272(F), (D); A.R.S. § 8-273(A). DCS, DHS, and AHCCCS are also responsible not

22 only for complying with orders from the juvenile courts, but also for independently

23 planning and providing programs and services to protect the health and safety of Arizona

24 children. See A.R.S. § 8-457. Specifically, DCS is obligated to provide “comprehensive

25 medical and dental care” for foster children and to collaborate with DHS and AHCCCS

26 to find the most effective way of delivering that care as well as behavioral health

27 services. A.R.S. § 8-512(A)-(C). The agencies are also responsible for creating a system

28 for identifying, licensing, and paying healthcare providers. A.R.S. § 8-512(D)-(K).

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Case 2:15-cv-00185-ROS Document 51 Filed 09/29/15 Page 22 of 30

1

The requested relief concerns the systems for facilitating the provision of care

2 already deemed necessary by Defendants and the juvenile courts. DCS and its related

3 agencies are responsible for creating a system for effectively delivering care. This

4 includes licensing and funding quality healthcare providers in a way that is similar to

5 DCS’s responsibilities regarding provision of foster homes. Defendants have presented

6 no evidence the juvenile courts play a specific role in directing or monitoring those

7 functions. An injunction directed towards the establishment and implementation of

8 practices to ensure children receive healthcare services to which they are entitled does not

9 require deciding an entitlement, but rather the delivering of entitled services.

10

Investigating Abuse and Caseworker Contact: Defendants make no claims

11 regarding the request for relief aimed at investigating abuse and neglect or providing

12 greater contact between caseworkers and biological parents, and these provisions involve

13 no clear conflict or interference with the juvenile courts.

14

Power of Contempt: Defendants claim the relief sought targets compliance with

15 juvenile court orders and as such interferes with the power of contempt and the ability of

16 the court to enforce its orders. Defendants refer to instances in the complaint in which a

17 juvenile court found lack of reasonable efforts to comply with orders as evidence that the

18 requested relief would impose oversight over compliance with juvenile court orders. But

19 the relief sought does not involve monitoring compliance with individual orders of the

20 juvenile courts. Rather, the goal of the proposed relief is to oversee macro-level systems,

21 which may involve overall rates of placement, visitation, and services. Furthermore, the

22 purpose of the oversight is not to pinpoint individual cases of noncompliance for federal

23 court intervention, but rather to implement system-wide remedial measures to help cure

24 alleged chronic, widespread failures.

25

Defendants have not pointed to instances in which the juvenile courts have been

26 involved with rooting out systemic causes of repeated agency failures. Nor do Defendants

27 cite statutes imposing a duty on the courts to engage in such agency intervention. This

28 type of federal oversight would not interfere with the functioning of the juvenile courts,

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Case 2:15-cv-00185-ROS Document 51 Filed 09/29/15 Page 23 of 30

1 including the power of contempt. See M.D. v. Perry, 799 F. Supp. 2d 712, 720 (S.D. Tex.

2 2011) (“As this lawsuit focuses on systemic problems and seeks systemic solutions, it

3 would not ‘duplicate’ the individualized reviews that occur in the state courts.”).

4

It is worth noting Juidice v. Vail, the case in which the Supreme Court first spoke

5 of the contempt power of a state court as grounds for Younger abstention, was a direct

6 challenge to the power of contempt. 430 U.S. 327 (1977). The plaintiffs in Juidice sought

7 specifically to invalidate a state statute which gave the state court the power of contempt.

8 The plaintiffs also sought to enjoin pending contempt proceedings. Id. In contrast to

9 Juidice, the potential interference Defendants posit with respect to the present lawsuit is 10 hypothetical.15

11

Retroactive Effect: Defendants express concern that any finding of past

12 constitutional violations by DCS, DHS, or AHCCCS could result in demands for

13 reversals or modifications of specific juvenile court orders in 16,990 pending dependency

14 proceedings. (Doc. 49 at 11). Defendants rely on E.T. v. George, 681 F. Supp. 2d 1151,

15 1172 (E.D. Cal. 2010). In E.T., a class of dependent children brought an action alleging

16 attorney and judicial caseloads in dependency courts were excessive and violated federal

17 and state constitutional and statutory provisions by frustrating “the ability of the courts to

18 adjudicate and provide children with a meaningful opportunity to be heard and the

19 effective, adequate, and competent assistance of counsel.” Id. The court concluded, “[t]he

20 requested declaratory relief call[ed] into question the validity of every decision made in

21 pending and future dependency court cases before the resolution of this litigation” and

22 stated it “[could not] overlook the practical impact of the proposed declaratory relief on

23 the 5,100 active dependency court cases” in which the court predicted parties would seek

24

25

26

15 In those instances in the complaint in which a juvenile court found noncompliance with an order, there is no indication the court exercised its power of

27

contempt. (See, e.g., Doc. 37 at 16-17). Rather, the complaint states, in some instances, the juvenile court merely re-ordered the same relief previously directed. (Doc. 37 at 16-

28

17). The Court “cannot overlook the practical impact of the proposed [] relief,” which, here, would not interfere with the functioning of the juvenile court. Cf. E.T. v. George,

681 F. Supp. 2d 1151, 1172 (E.D. Cal. 2010).

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Case 2:15-cv-00185-ROS Document 51 Filed 09/29/15 Page 24 of 30

1 to invalidate prior decisions by the juvenile court. Id.16

2

Unlike E.T., the complaint and requested relief here do not call into question the

3 validity of orders previously issued by the juvenile courts, nor the fairness of past

4 juvenile court proceedings. Plaintiffs do not claim, nor do Defendants argue, the alleged

5 constitutional violations resulted from adherence to certain juvenile court orders.

6 Defendants have not shown how findings against them would have the effect of

7 retroactively invalidating past orders of the juvenile courts.

8

In sum, the relief sought in each of the areas outlined in the complaint does not

9 involve or interfere with the interest of the state in enforcing the orders and judgments of

10 state courts. The Court does note that although the suit clearly involves an important state 11 interest,17 it does not appear Plaintiffs could raise their classwide claims or pursue the

12 systemic reforms they seek within the framework of the periodic review hearings in the

13

14

15

16 The “practical impact” of such a declaration was not the primary reason for the

16

decision to abstain under Younger. The decision primarily rested on a finding that “[the proposed] injunction directed to remedying [violations based upon the amount of time or

17

resources spent on juvenile dependency court cases] would require the [federal] court to ensure that in each case the child was receiving certain services or procedures that the

18 court has declared constitutional.” Id. (emphasis added).

19

17 See Santosky v. Kramer, 455 U.S. 745, 766 (1982) (“the State has an urgent interest in the welfare of [its resident children]”). See also Moore v. Sims, 442 U.S. 415,

20

435, 99 S. Ct. 2371, 2383, 60 L. Ed. 2d 994 (1979) (“Family relations are a traditional area of state concern.”); Ginsberg v. State of New York, 390 U.S. 629 (1968) (“State . . .

21

has an independent interest in the well-being of its youth.”); Prince v. Commonwealth of Massachusetts, 321 U.S. 158 (1944) (state acting to guard the interest in youth’s well-

22

being); H.C. ex rel. Gordon v. Koppel, 203 F.3d 610, 613 (9th Cir. 2000) (citing Moore on state’s interest in family relations). Some courts have held a state’s voluntary

23

agreement to federal oversight of its foster care system under the Act reduces the comity concerns out of which this requirement of Younger arose. M.D. v. Perry, 799 F. Supp. 2d

24

712, 725 (S.D. Tex. 2011) (“[G]eneral concerns about comity and federalism underlying Younger are lessened in light of the state’s submission to federal oversight under the Title

25

IV-E foster care program. . . . The voluntary submission to such federal oversight greatly lessens the force of any complaints regarding unwarranted federal intrusion on state

26

sovereignty.”). But the cases do not hold federal oversight negates the state’s interest entirely. Id. at 721 (“The mere fact that federal oversight also exists does not lessen the

27

importance of this state interest.”). Cf. Hudson v. Campbell, 663 F.3d 985, 988 (8th Cir. 2011) (holding state had important interest in administering Medicaid program because

28

“[t]he Act ‘confers broad discretion on the States to adopt standards for determining the extent of medical assistance, requiring only that such standards be “reasonable” and

“consistent with the objectives” of the Act’” and program was partially funded by state).

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Case 2:15-cv-00185-ROS Document 51 Filed 09/29/15 Page 25 of 30

1 juvenile courts.18 Therefore, even if the relief sought could be construed to interfere with

2 some ongoing proceedings, Younger abstention is inappropriate given the inadequacy of

3 those proceedings to adjudicate the relief sought here.

4

C. O’Shea Abstention

5

In addition to Younger abstention, Defendants invoke O’Shea abstention. O’Shea

6 abstention is an outgrowth of Younger. Under O’Shea v. Littleton, a federal court may not

7 issue an injunction which would result in “an ongoing federal audit of state [court]

8 proceedings which would indirectly accomplish the kind of interference that Younger v.

9 Harris . . . and related cases sought to prevent.” 414 U.S. 488, 500 (1974).

10

O’Shea involved an action by a group of residents against a county magistrate and

11 associate judge of the county circuit court in which the residents alleged a pattern and

12 practice of illegal bond setting, sentencing, and jury fee practices in criminal cases. 414

13 U.S. 488 (1974). The Supreme Court dismissed the case for lack of standing and want of

14 an actual case or controversy. The Court held none of the named plaintiffs had suffered

15 the injury specified and the claimed injury was outlined in far too general terms to be

16 cognizable. As an alternative holding, the Court stated that even if the complaint

17 presented a case or controversy,

18 [The requested] injunction [was] aimed at controlling or preventing the

19

occurrence of specific events that might take place in the course of future

20

state criminal trials[,] . . . would contemplate interruption of state proceedings to adjudicate assertions of noncompliance by petitioners[, and

21

would result in] an ongoing federal audit of state criminal proceedings

which would indirectly accomplish the kind of interference that Younger v. 22

23

24

18 As discussed in the previous section, everything about dependency proceedings is tailored to the specific facts and circumstances of a particular child’s life. Nothing in

25

the statutes governing the authority or procedures of the juvenile court envisions or authorizes the court’s adjudication of class action cases. See A.R.S. §§ 8-841 et seq.; 8-

26

221. In fact, Defendants do not argue the class claims this case presents could be brought in the context of an ongoing juvenile dependency proceeding. Rather they argue the

27

Court does not need to analyze this case as a class action because no class has yet been certified. Crucially, Defendants and the cases on which they rely, 31 Foster Children v.

28

Bush, 329 F.3d 1255, 1281 (11th Cir. 2003) and Joseph A. ex rel. Corrine Wolfe v. Ingram, 275 F.3d 1253, 1274 (10th Cir. 2002), do not embrace the unique and important

functions of class actions and the relief they can afford.

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Case 2:15-cv-00185-ROS Document 51 Filed 09/29/15 Page 26 of 30

1

Harris . . . and related cases sought to prevent. [And a] federal court should

2

not intervene to establish the basis for future intervention that would be so

intrusive and unworkable.

3 Id. at 500.

4

5

O’Shea abstention is an equitable abstention related to Younger. “If the equitable

6 relief requested requires intrusive follow-up into state court proceedings, it constitutes ‘a

7 form of the monitoring of the operation of state court functions that is antipathetic to

8 established principles of comity.’” E.T. v. George, 681 F. Supp. 2d 1151, 1162 (E.D. Cal.

9 2010) aff’d sub nom. E.T. v. Cantil-Sakauye, 682 F.3d 1121 (9th Cir. 2012) (quoting

10 O’Shea, 441 U.S. at 500).

11

“[I]nstitutional reform injunctions often raise sensitive federalism concerns.”

12 Horne v. Flores, 557 U.S. 433, 448 (2009). Those concerns are “heightened when . . . a

13 federal-court decree has the effect of dictating state or local budget priorities.” Id. To

14 fulfill their obligation of enforcing federal law without overly hamstringing state and

15 local officials with “overbroad or outdated [federal injunctive orders]” the Supreme Court

16 directed federal courts to take a “flexible approach” to such orders, ensuring the orders

17 are “limited to reasonable and necessary implementations of federal law” and

18 “responsibility for discharging the State’s obligations is returned promptly to the State

19 and its officials when the circumstances warrant.” Id. at 450 (internal quotation marks

20 and citation omitted).

21

Defendants claim the injunctive relief Plaintiffs seek “necessarily requires this

22 Court to create and then monitor, for purposes of enforcement, measurable criteria for

23 placements, visitation, permanency, health care, and other facets of foster care that

24 juvenile court judges adjudicate,” and would thus constitute an ongoing federal audit of

25 juvenile court proceedings. (Doc. 49 at 18). Plaintiffs insist “Defendants can be ordered

26 to address their harmful practices ‘without an ongoing intrusion into the state’s

27 administration of justice,’” and “O’Shea does not give federal courts license to turn away

28 from claims like those asserted in this action.” (Doc. 42 at 28).

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Case 2:15-cv-00185-ROS Document 51 Filed 09/29/15 Page 27 of 30

1

In E.T. v. Cantil-Sakauye, the Ninth Circuit affirmed an abstention decision under

2 O’Shea. 682 F.3d 1121 (9th Cir. 2012). There, the district court was asked to declare

3 attorney caseloads in juvenile courts unconstitutional and issue accompanying injunctive

4 relief. The court concluded:

5

[T]he court would [] have to consider a myriad of administrative matters

6

that affect the efficiency of the system. Further, in order to enforce any method of injunctive relief, the court would be required to act as a receiver

7

for the Sacramento dependency court system, ensuring that judges were

giving adequate time to each individualized case pursuant to the

8

constitutional and/or statutory dictates established through this proceeding.

9

Such involvement in any state institutional system is daunting, but the

problems accompanying plaintiffs’ requested relief is increased

10

exponentially when applied to a state judicial system.

11 E.T. v. George, 681 F. Supp. 2d 1151, 1165 (E.D. Cal. 2010) (emphasis added).

12

The Ninth Circuit distinguished Los Angeles County Bar Association v. Eu, 979

13 F.2d 697 (9th Cir. 1992), which involved a challenge to a California statute prescribing 14 the number of judges in Los Angeles Superior Court. The plaintiffs in that case claimed

15 the statute led to a shortage of state court judges, which in turn, caused inordinate delays

16 in civil litigation and deprived litigants of access to the courts. The E.T. court held the 17 question in Los Angeles County Bar Association was “whether the average time to

18 resolution in a case violated [the plaintiff’s] rights.” E.T., 681 F. Sup. 2d at 1166. By

19 contrast, the court held the question presented in E.T. was whether each individual 20 plaintiff’s rights had been violated “based upon their specific, individual circumstances.”

21 Id.

22

But in Melendres v. Maricopa County, a district court did not abstain in a class

23 action seeking federal monitoring and sweeping reforms of a state executive agency, the

24 Maricopa County Sheriff’s Office. No. CV-07-2513-PHX-GMS, 2009 WL 2707241, at

25 *5 (D. Ariz. Aug. 24, 2009). The defendants moved for judgment on the pleadings, 26 arguing in part, that the principles of comity and federalism made adjudication of the

27 claims in federal court improper. The court referenced O’Shea but held:

28

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Case 2:15-cv-00185-ROS Document 51 Filed 09/29/15 Page 28 of 30

1

[P]rinciples of federalism counsel restraint in the granting of injunctive

2

relief against state agencies. At this early stage in the litigation, however,

principles of federalism do not dictate that the Court should terminate this

3

case. Just as it is emphatically the province and duty of the judiciary to say

4

what the law is, . . . so too is it emphatically the province and duty of the judiciary to vindicate the law where it has been violated. This principle

5

requires enjoining constitutional violations that are likely to reoccur, even if

6

the subject of the injunction is a state agency entitled to respect, deference, and latitude in conducting its own affairs. . . . Principles of federalism are

7

not offended by a court performing this essential function—“to conclude

otherwise would be to suggest that federal courts never ought to be

8

concerned with the activities of state agencies under any circumstances.”

9

10 Id. at *5 (citations omitted). Melendres did not involve ongoing state court proceedings,

11 but the holding is relevant because it clearly outlines the tension between Supreme Court

12 precedents which, on the one hand, impose a duty on federal courts to adjudicate claims

13 arising under federal laws, and on the other hand, warn against excessive intrusion into

14 the operation of state government. The Supreme Court also addressed that tension in

15 Horne when it discussed the “flexible approach” federal courts should take to address

16 widespread violations of federal law by state institutions. 557 U.S. at 450.

17

The primary question under O’Shea is whether the proposed injunctive relief

18 would result in an ongoing federal audit of state court proceedings. The complaint here

19 does not. It is directed towards state agencies. Defendants express concern the obligation

20 of juvenile courts to oversee these agencies will result in a federal injunction which will

21 indirectly accomplish the interference Younger aims to avoid. But as discussed, although

22 the juvenile courts play a significant role in overseeing the care of children within the

23 custody and care of the Arizona child welfare agencies, the courts are not involved in

24 adjudicating and remedying the types of claims raised here.

25

The complaint and proposed relief are distinguishable from E.T. because they are

26 not directly aimed at the functioning of the juvenile courts.19 Plaintiffs here do not allege

27

28

19 For this reason, the case is also distinguishable from Laurie Q. v. Contra Costa County, another case on which Defendants rely. In Laurie Q., a class of special needs

foster children sued the county for violations of the Adoption Assistance and Child

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Case 2:15-cv-00185-ROS Document 51 Filed 09/29/15 Page 29 of 30

1 any statutory or constitutional violations in the procedure or administration of the

2 juvenile courts. Nor is Plaintiffs’ suit an indictment of the juvenile courts for failing to

3 address these constitutional issues.

4

Further, the failures of child welfare agencies to comply with juvenile court orders

5 are the result of the broader problems Plaintiffs wish to address. Plaintiffs contend the

6 absence of proper agency organization and resources results in constitutional violations,

7 signified by insufficient delivery of services to foster children, including instances of

8 direct violations of juvenile court orders, and those children’s mental and physical health

9 problems. If appropriate, the success of the injunctive relief Plaintiffs seek in this case

10 will be measured by composite statistics showing rates of placements and services,

11 including those ordered by juvenile courts.

12

As the Melendres court held, principles of federalism and comity warrant restraint

13 and respect when the target of a federal court injunction is a state agency. But this Court,

14 like that one, is fully capable of practicing such restraint and hewing to the direction

15 provided by the Supreme Court in Horne for managing the competing requirements of

16 federal jurisdiction and state sovereignty.

17 III. Pullman Abstention

18

Defendants also claim abstention is appropriate because Plaintiffs’ claims could be

19 resolved on state law grounds, thus avoiding unwarranted determinations of federal law.

20 Plaintiffs argue there are no state grounds upon which to decide the issues they raise

21 since they do not challenge the constitutionality or appropriateness of a state law or

22 policy.

23

In Railroad Commission of Texas v. Pullman Company, the Supreme Court held

24

25 Welfare Act (“AACWA”), including failing to prepare compliant case plans. 304 F.

26

Supp. 2d 1185 (N.D. Cal. 2004). Because the juvenile court held “ultimate authority over the formulation of the case plans . . . [at] which plaintiffs’ prayer for injunctive relief

27

[was] directed” . . . the court held Younger applied. Id. at 1203-08 (“[T]he allegations at issue here reach to the very heart of the Juvenile Court’s responsibility and core

28

competency, viz., determining the best program of services and placement for each individual child.”). As discussed at length in this order, the relief Plaintiffs’ seek is not

aimed at a core competency of the juvenile court.

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Case 2:15-cv-00185-ROS Document 51 Filed 09/29/15 Page 30 of 30

1 that when an unsettled question of state law could be dispositive of a federal

2 constitutional claim, the federal court should abstain in order to give the state courts an

3 opportunity to decide the underlying state law question, thus avoiding unnecessary

4 adjudication of constitutional questions. 312 U.S. 496 (1941).

5

Plaintiffs do not raise state law claims in their complaint. Although it is not

6 necessary for them to raise a state law claim in order to be subject to abstention under

7 Pullman, Defendants have not provided the Court with a state law basis under which

8 Plaintiffs’ constitutional claims might be resolved. Cf. Harris Cnty. Comm’rs Court v.

9 Moore, 420 U.S. 77, 81 (1975). Therefore, the Court cannot conclude Pullman abstention

10 is appropriate.

11 IV. Summary

12

Obviously, as this Order demonstrates, the discussion and final decision of

13 whether a federal court should entertain suits related to state judicial proceedings can

14 never be marginalized. But in the end, if the Court abstained here, the effect would be

15 that Plaintiffs would not be allowed to seek relief in federal court for alleged egregious

16 broad and systemic federal constitutional violations. That would be a wrong result

17 because based on the allegations in the complaint, this Court could fashion a remedy that

18 would not impinge upon the decisions made by juvenile courts in specific individual

19 cases. And of course, this Court will always eschew forays into state judicial proceedings.

20

Accordingly,

21

IT IS ORDERED the motion to abstain and dismiss, (Doc. 41), is DENIED.

22

Dated this 29th day of September, 2015.

23

24

25

Honorable Roslyn O. Silver

26

Senior United States District Judge

27

28

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 Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 1 of 53

1 Joseph Mais (005470)

Shane Swindle (011738) 2 PERKINS COIE LLP

3

2901 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012-2788

4 T: (602) 351-8000 F: (602) 648-7000

5 jmais@perkinscoie.com

sswindle@perkinscoie.com 6

7 Anne C. Ronan (006041) Timothy M. Hogan (004567)
8 ARIZONA CENTER FOR LAW IN THE

9

PUBLIC INTEREST 514 West Roosevelt Street

10 Phoenix, Arizona 85003

T: (602) 258-8850 11 F: (602) 258-8757

12 aronan@aclpi.org thogan@aclpi.org
13

William Kapell (admitted pro hac vice) Julia L. Davis (admitted pro hac vice) Rachel B. Nili (admitted pro hac vice) Adriana T. Luciano (admitted pro hac vice) CHILDREN’S RIGHTS, INC. 330 Seventh Avenue, Fourth Floor New York, New York 10001 T: (212) 683-2210 F: (212) 683-4015 wkapell@childrensrights.org jdavis@childrensrights.org rnili@childrensrights.org aluciano@childrensrighs.org

14 Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT 15

DISTRICT OF ARIZONA 16

B.K. by her next friend Margaret Tinsley; 17 C.P. and B.T. by their next friend Jennifer

) No. 2:15-cv-00185-PHX-ROS )

Kupiszewski; A.T.; A.C-B; M.C-B; J.C-B; 18 D.C-B; J.M. and J.C. by their next friend

) ) SECOND AMENDED COMPLAINT

19

Susan Brandt, for themselves and those similarly situated,

) FOR INJUNCTIVE AND ) DECLARATORY RELIEF AND

20 v.

Plaintiffs,

) REQUEST FOR CLASS ACTION )

21 Gregory McKay, in his official capacity as

) ) (Assigned to the Honorable Roslyn

22 Director of the Arizona Department of Child ) O. Silver) Safety; Cara M. Christ, in her official capacity )

23 as Director of the Arizona Department of

)

Health Services; and Thomas J. Betlach, in his )

24 official capacity as Director of the Arizona

)

25 Health Care Cost Containment System,

) )

26

)

Defendants.

)

27

)

)

28

)

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 2 of 53

1 Plaintiffs, by their undersigned attorneys, bring this civil action for declaratory and

2 injunctive relief, and allege as follows:

3

INTRODUCTION

4

1. This is a civil rights class action brought by the Named Plaintiffs, children in

5 Arizona state foster care custody, on behalf of themselves, a general class of children who

6 are or will be placed in such custody following reports that they have suffered child abuse

7 or neglect, and certain subclasses of these children.

8

2. Plaintiffs are among the State’s most vulnerable citizens. Through no fault of

9 their own, they find themselves in the legal custody of the State after having already

10 suffered the trauma of being abused or neglected by their own families. Plaintiffs seek

11 declaratory and injunctive relief to end certain child welfare policies and practices

12 described herein exposing them to yet further physical and emotional harm and

13 unreasonable risk of harm while in the State’s care.

14

3. On May 29, 2014, legislation was enacted giving responsibility for the state’s

15 child welfare operations to the state Department of Child Safety (“DCS”) and removing

16 such responsibility from the state Department of Economic Security (“DES”). As of May

17 29, 2014, DCS, which was established as an independent agency, is legally responsible for

18 managing the state’s child welfare system.

19

4. Plaintiffs name Gregory McKay, the Director of DCS, as a defendant. Defendant

20 McKay, who is sued solely in his official capacity, directly and indirectly controls and is

21 responsible for the policies and practices of DCS, including those set forth herein.

22

5. Plaintiffs also name Cara M. Christ, M.D., the Director of the state Department

23 of Health Services (“DHS”), as a defendant. DHS is responsible for providing mental and

24 behavioral health services to children in Arizona state foster care custody. Defendant

25 Christ, who is sued solely in her official capacity, directly and indirectly controls and is

26 responsible for the policies and practices of DHS, including those set forth herein.

27

6. Plaintiffs also name Thomas J. Betlach, the Director of the Arizona Health Care

28 Cost Containment System (“AHCCCS”), as a defendant. AHCCCS is responsible for

2

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 3 of 53

1 administering and supervising the Medicaid program in Arizona. Defendant Betlach, who

2 is sued solely in his official capacity, directly and indirectly controls and is responsible for

3 the state’s compliance with Medicaid’s statutory and regulatory requirements.

4

7. Over the past several years, while foster care rates across the nation have been on

5 the decline, Arizona has experienced a dramatic increase in the number of children in state

6 foster care. From 2003 to 2012, the number of children in the State’s foster care custody

7 nearly doubled. More recently, Arizona’s foster care population grew from 10,207 as of

8 March 31, 2010 to 15,037 as of September 2013, a 47.3% increase. The number of

9 children in out-of-home care grew by another 10% from February 2013 to February 2014.

10 As of September 30, 2014, there are 16,990 children in state foster care custody who have

11 been placed in out-of-home care.

12

8. This huge growth in the state’s foster care population has been fueled by

13 extensive state budget cuts to important support services that had previously helped keep

14 families together. In particular, state funding for DES’s contracts with community-based

15 providers who offered in-home services to children, aimed at making removal of children

16 into foster care unnecessary, was cut in half in recent years, from $43 million in fiscal year

17 2008 to under $22 million in fiscal year 2012.

18

9. These cuts followed the state’s termination of its Family Builders program in

19 2004, which had provided family-centered assessments, case management, and services for

20 families with children deemed to be at low or only potential risk of being abused or

21 neglected.

22

10. According to the Arizona Chapter of the American Academy of Pediatrics

23 “[c]uts to DES family support services including child care assistance, housing assistance,

24 substance-abuse treatment and job training for families has resulted in a 40% increase in

25 the number of children who needed to be placed in foster care since 2009 and these

26 children are staying in foster care longer because their parents are not provided with the

27 services they need.”

28

3

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 4 of 53

1

11. As former Governor Brewer publicly acknowledged in 2014, the Arizona “child

2 welfare system is broken, impeded by years of structural and operational failures.”

3 Defendants DCS and DHS (collectively the “Defendants”) are legally responsible for

4 overseeing this “broken” system.

5

12. Defendants are well aware that the following structural and operational failures

6 continue to plague the state’s child welfare system:

7

 A severe shortage i n and i naccessi bi lity of physi cal , mental and

behavioral health services available to children in state care. As a result,

8

far too many children in state foster care custody do not receive the health

care services they desperately need and all children in state care are subject

9

to an unreasonable risk that they will suffer physical and emotional harm and

10

deterioration while in the state’s care.

 A widespread failure to conduct timely investigations of reports that

11

children have been maltreated while in state foster care custody. As a

12

result of the state’s deficient investigation practices, children in state foster care custody are placed at an undue risk of suffering physical and emotional

13

harm while in state care.

 A severe and sustained shortage of family foster homes. As a result of

14

this shortage, children in state foster care are emotionally harmed and

15

subjected to an unreasonable risk of harm by being placed far from their families and communities, separated from their siblings, and forced to

16

experience disruptive school changes.

17

 A widespread failure to engage in basic child welfare practices aimed at maintaining family relationships, such as placing siblings together,

18

placing children with their biological parents on a trial reunification basis, coordinating visits between children in state foster care and their

19

biological families, and having caseworkers make regular visits with the

children’s biological parents to monitor progress toward family

20

reunification. These failures subject children in state foster care to an

unreasonable risk of suffering emotional harm while in state care. Moreover,

21

as a result of these deficiencies, children are subjected to unreasonable

delays in being reunified with their families, causing them to suffer further

22

emotional harm.

23

13. The state child welfare agency and DHS have failed to remedy these ongoing

24 failures.

25

14. Moreover, Arizona officials have long been aware of these deficiencies and

26 harms. As far back as 2003, the Maricopa County Attorney’s Office released a report on

27 the state’s child welfare system, In Harm’s Way, detailing the system’s deficiencies.

28 Among its findings, the report identified a shortage of foster homes and stated that “[p]art

4

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 5 of 53

1 of the reason many feel that children stay in a ‘risky’ situation is the inability to place them

2 elsewhere.” The report concluded that the state’s child welfare system was “overloaded

3 without the proper resources to ensure the safety of all children.”

4

15. That same year, then Governor Janet Napolitano acknowledged that “[t]he

5 system for protecting Arizona’s children from abuse and neglect, which has been falling

6 apart for years due to poor design and chronic under-funding, is in critical need of repair.”

7 Governor Napolitano convened an “Advisory Commission on CPS Reform” that issued an

8 Action Plan for Reform of Arizona’s Child Protection System in September 2003 (the

9 “Action Plan”). The Action Plan noted several systemic deficiencies in the state’s child

10 welfare system, including a shortage of foster homes and limited access to services for

11 foster children.

12

16. In the years since In Harm’s Way and the Action Plan were released, the child

13 welfare system has continued to suffer from a vast shortage of foster homes and inadequate

14 access to child services, despite the known harm that these structural impairments have

15 caused children in state foster care to suffer.

16

17. As a result of the state’s failure to remedy these problems, plaintiffs have been,

17 and continue to be, exposed to harm and an unreasonable risk of harm, in violation of their

18 federal constitutional and statutory rights.

19

JURISDICTION AND VENUE

20

18. This action is brought pursuant to 42 U.S.C. § 1983 to redress violations of the

21 United States Constitution and the provisions of the federal Medicaid Act, including

22 42 U.S.C. §§ 1396a(a)(10)(A)(i)(I), 1396a(a)(43)(C), 1396d(a)(4)(B) and 1396d(r), that

23 require states to provide early and periodic screening, diagnostic and treatment (“EPSDT”)

24 services. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3), and

25 authority to grant declaratory relief under 28 U.S.C. §§ 2201 and 2202.

26

19. Venue is proper here pursuant to 28 U.S.C. § 1391(b) because the claims arise

27 in this district.

28

5

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 6 of 53

1

PARTIES

2 A. The Named Plaintiffs

3

B.K.

4

20. As of February 3, 2015, B.K. is a ten-year-old girl in state foster care with a

5 permanency goal of permanent foster care, meaning that DCS has concluded that she has

6 little, if any, chance of leaving foster care over the next eight years. She has spent more

7 than half of her life in state foster care. During her time in state foster care, B.K. has been

8 deprived of needed physical and mental health care, separated from her siblings, deprived

9 of contact with her mother and siblings, and placed in institutional settings on two different

10 occasions. As a result of these experiences, B.K. has been subjected to emotional harm

11 and/or an ongoing unreasonable risk of harm.

12

21. B.K. first entered voluntary state custody in 2005 when she was five months

13 old. At that time, B.K.’s mother had a substance abuse problem and could not care for her.

14 B.K. remained in the legal custody of the state child welfare agency until September 2006

15 when she was returned to her mother.

16

22. In 2008, then three-year-old B.K. and her three siblings were removed from

17 their mother’s home. Upon assuming their care, the state child welfare agency

18 immediately separated the four siblings, placing B.K. and her brother in a licensed foster

19 home, and their two sisters in a second foster home. In late 2009, the state child welfare

20 agency returned B.K. and her siblings to their mother’s care.

21

23. In 2012, B.K. and her three siblings were again removed from their mother’s

22 home and placed in state foster care custody. Upon coming into state care for the third

23 time, B.K. was diagnosed with Posttraumatic Stress Disorder (“PTSD”), a mood disorder,

24 psychosis and anxiety. An investigation showed that B.K. had been physically abused by

25 her mother, and had bumps and bruises on her head and behind her ears.

26

24. Despite her fragile emotional state, the state child welfare agency separated

27 B.K. from all of her siblings, placing her in a group home on “emergency shelter” status.

28

6

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 7 of 53

1 Though such placements are supposed to be short-term, B.K. remained at the group home

2 for more than two years.

3

25. While at the group home, the state child welfare agency failed to ensure that

4 B.K. obtained the glasses she needed to see properly. The state child welfare agency also

5 failed to discover that B.K. was walking with a limp, and failed to make sure that she

6 received the orthopedic shoes she needed. Despite months of complaints from B.K. about

7 a toothache, the state child welfare agency failed to make sure she saw a dentist while she

8 was living at the group home.

9

26. From the time B.K. was placed at the group home in 2012 until early 2014, the

10 state child welfare agency and DHS also failed to ensure that B.K. received consistent

11 counseling and needed mental health services. During this time, B.K. was saying that she

12 was hearing voices that were telling her to hurt other people or that someone would die.

13 One time she was so scared by the voices that she called the police. The state child

14 welfare agency knew that the group home was failing to arrange for B.K.’s transportation

15 to appointments with health care providers, but failed to see to it that B.K. received

16 undisrupted services. The group home also enrolled B.K. in a specialized school where

17 she was the only girl.

18

27. In May 2014, the state child welfare agency finally placed B.K. in a foster home

19 after she had spent 25 months in the group home. The state child welfare agency placed

20 her with a man and his great-nephew who went to the same specialized school as B.K.

21 The man told the state child welfare agency that he was concerned about B.K.’s mental

22 health and asked the state to make sure she received an updated psychological evaluation.

23 The last complete evaluation had been conducted five years earlier when B.K. was four.

24 The updated assessment was never performed. After only eight weeks, B.K. was moved to

25 a second foster home with neighbors of the man and his great-nephew. After two weeks at

26 this second home, the foster parents packed up B.K.’s things and dropped her off at a DCS

27 office.

28

7

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 8 of 53

1

28. In August 2014, DCS moved B.K. to a shelter. The move to shelter care caused

2 B.K. to have to change schools, resulting in educational and social disruption. Moreover,

3 the counselor who had been treating B.K. at the group home refused to drive to see B.K. at

4 the shelter because of the distance involved, and DCS again failed to ensure that B.K.

5 received transportation to her counseling sessions.

6

29. During August 2014, B.K.’s behavioral health coordinator concluded that B.K.

7 should be placed in a “Home Care Training to Home Care Client Services” (“HCTC”)

8 therapeutic foster home. No such placement was made and B.K. remained in a shelter

9 until September. While at the shelter, B.K. had no contact with her mother or three older

10 siblings, even though her siblings have been returned to their mother’s care. B.K.’s mental

11 health deteriorated at the shelter and she threatened to hurt herself and others. She was

12 admitted to a psychiatric hospital for a week to be stabilized.

13

30. In late September 2014, DCS moved B.K. from the hospital to a non-therapeutic

14 foster home. This resulted in another change in schools. DCS did not ensure that she had

15 regular contact with her mother or siblings.

16

31. In December 2014, still waiting to be placed in an HCTC home, B.K. had

17 another psychiatric crisis and threatened suicide. The state child welfare agency moved

18 her out of the foster home and DHS admitted her to another psychiatric hospital. She

19 stayed in the hospital for a week and a half.

20

32. In late December, months after her providers agreed she needed a therapeutic

21 foster home, B.K. was finally discharged from the hospital to an HCTC placement. This

22 resulted in yet another change in schools.

23

C.P.

24

33. As of February 3, 2015, C.P. is a seven-year-old boy who has been in state

25 foster care custody since June 2013, with a permanency goal of adoption. During his time

26 in state foster care, he has attended at least eight different schools and has had to live in at

27 least 11 different placements, including two stays in shelters and a placement in a foster

28 home where he was physically abused. While in state foster care, he has been separated

8

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 9 of 53

1 from his siblings, deprived of visits with them, and has been deprived of access to both the

2 mental health services and placements he desperately needs. As a result of these

3 experiences, C.P. has been subjected to physical and emotional harm and/or an ongoing

4 unreasonable risk of harm.

5

34. C.P. and his two sisters were taken into state foster care custody after being

6 exposed to neglect and domestic violence. They were initially placed in an unlicensed

7 foster home for four days before being moved to their grandmother’s home. During the

8 two-month period that C.P. was with his grandmother, she repeatedly asked the state child

9 welfare agency for help with C.P.’s mental health needs, but C.P. did not receive any

10 mental health care services. Ultimately, his grandmother asked the state child welfare

11 agency to remove C.P. and his siblings from her home.

12

35. The state child welfare agency then separated C.P. and his older sister from their

13 younger sister. C.P. and his older sister were placed in a Spanish-speaking foster home,

14 even though the children do not speak Spanish. The home was almost an hour away from

15 C.P.’s grandmother and the foster home where C.P.’s younger sister was placed. Within

16 ten days of arriving at the Spanish-speaking foster home, C.P. and his older sister were

17 separated and placed in two different foster homes.

18

36. In early September 2013, the state child welfare agency moved C.P. to yet

19 another foster home. After months in foster care, C.P. was belatedly assigned a therapist.

20 Even then, however, C.P.’s foster mother refused to take C.P. to his appointments and the

21 state child welfare agency and DHS failed to arrange for other transportation. As a result,

22 C.P. did not have a single therapy session during the four months he lived at the foster

23 home.

24

37. The foster mother was also reported to the state Child Abuse Hotline, to C.P.’s

25 DES case manager and to the state licensing office, after she placed C.P. in the front seat

26 of her car without a car seat or booster seat. DCS did not conduct an investigation of these

27 reports. Moreover, the case manager acknowledged that she had made an earlier report to

28

9

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 10 of 53

1 the Child Abuse Hotline herself when it was discovered that the foster mothe r had left C.P.

2 unsupervised with another foster child. DCS did not investigate that report either.

3

38. In January 2014, C.P. began visiting at another home where his older sister was

4 living. When his foster mother failed to pick him up from a visit, the state child welfare

5 agency simply told the family whom C.P. was visiting to keep him. C.P. subsequently

6 disclosed that his former foster mother had hit him with a spoon. Though the state child

7 welfare agency investigated the reported abuse, DCS never entered any investigation

8 findings into the agency’s Children’s Information Library and Data Source (“CHILDS”)

9 system, nor did the state child welfare agency close the investigation.

10

39. C.P. started living at the new foster home with his older sister in January 2014.

11 Shortly thereafter, he became suicidal. Though he had a crisis stabilization team in place,

12 it failed to promptly respond to this crisis, and the foster mother called the police who took

13 C.P. to the hospital. C.P. did not see his older sister again for nearly a year.

14

40. C.P. was admitted to a psychiatric hospital for a week. He was diagnosed with

15 PTSD and his doctors indicated that he needed immediate intensive trauma therapy and

16 specialized therapy at a therapeutic HCTC home. C.P.’s stabilization team agreed that

17 C.P. needed to be placed in a foster home equipped to respond to his needs. Nevertheless,

18 when C.P. left the hospital, the state child welfare agency took him directly to a shelter.

19 He spent ten days in that shelter before being moved to a second shelter, a move that also

20 resulted in C.P. having to change schools.

21

41. In February 2014, three weeks after arriving at the second shelter, C.P. became

22 suicidal again, telling staff about his plan to get a knife and hurt himself. He was

23 hospitalized for a second time and prescribed psychotropic medication. He remained in

24 the hospital for two weeks before being discharged in March 2014. Again, the doctors at

25 the psychiatric hospital recommended that C.P. be released to a therapeutic HCTC home.

26

42. Instead, the state child welfare agency placed C.P. in a non-therapeutic foster

27 home. C.P. had to switch schools again and was inappropriately placed in first grade

28 instead of kindergarten, where he should have been enrolled based on his age and school

10

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 11 of 53

1 experience. He stayed in first grade for a month before anyone realized he was in the

2 wrong grade.

3

43. In April 2014, the state child welfare agency finally placed C.P. in an HCTC

4 home. Unfortunately, he was required to switch schools again as a result of this latest

5 placement.

6

44. In December 2014, both of C.P.’s two sisters were adopted. During the year

7 before they were adopted, C.P. had only one sibling visit with one of his sisters, even

8 though his mental health assessments indicate that his sisters are the only people with

9 whom he has meaningful attachments. Moreover, as of February 3, 2015, not only has he

10 had no contact with either of them since they were adopted, but he has not received the

11 intensive trauma therapy that was recommended for him in January 2 014, and because his

12 HCTC placement is temporary, his providers have decided that he should not receive

13 intensive trauma therapy until he is in a more stable home.

14

B.T.

15

45. As of February 3, 2015, B.T. is a fourteen-year-old boy diagnosed with PTSD

16 who has a permanency goal of adoption. During his many years in state foster care

17 custody, he has been shuffled through numerous institutional settings despite his young

18 age, separated from his siblings, denied sibling visitation, deprived of much needed mental

19 health care, and has had to endure repeated educational disruptions. As a result of these

20 experiences, B.T. has been subjected to emotional harm and/or an ongoing unreasonable

21 risk of harm.

22

46. In January 2005, B.T. was taken into foster care for the first time, along with his

23 two older brothers. B.T. and one of his older brothers were placed together in a group

24 home, and the other brother was separated and placed in a different group home.

25

47. A month after being taken into state foster care, B.T. had a psychological

26 evaluation, which indicated that he needed therapeutic treatment. He had to wait six

27 months before his first therapy session.

28

11

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 12 of 53

1

48. In June 2005, B.T. was removed from the group home and separated from the

2 brother with whom he was placed there. He was moved to a kinship foster home with a

3 paternal aunt. By December 2005, B.T. had spent six months in his new home without any

4 visits with his older brothers. He did not see his brothers again until January 2006.

5

49. In August 2006, B.T.’s aunt told the state child welfare agency that B.T. was not

6 receiving the counseling that he needed. She requested that B.T. have an updated

7 psychological evaluation, but no such evaluation was conducted. During this same time

8 period, the state child welfare agency was again failing to provide B.T. with regular visits

9 with one of his brothers.

10

50. In September 2006, B.T.’s aunt told the state child welfare agency that she

11 could no longer care for B.T. since the state was not providing him with the mental health

12 services he needed. Rather than DHS providing those services, the state child welfare

13 agency moved B.T. to an emergency receiving foster home.

14

51. In October 2006, B.T. threatened to kill himself and the foster family with

15 whom he was temporarily placed. Despite his mounting mental health issues, B.T. still

16 was not receiving regular therapy. The state child welfare agency responded to this latest

17 crisis by removing B.T. from the home. B.T., then six years old, was again placed in a

18 group home.

19

52. Shortly thereafter, the state child welfare agency received reports that B.T. was

20 struggling emotionally in the group home. Again, an updated psychological evaluation for

21 B.T. was requested, but the evaluation was not scheduled until December 2006. The state

22 child welfare agency and DHS also failed during this time to ensure that B.T. received

23 needed counseling.

24

53. B.T.’s evaluation indicated that he needed individual therapy every other week.

25 He was also prescribed psychotropic medication. A psycho-educational evaluation was

26 recommended, but never conducted.

27

28

12

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 13 of 53

1

54. In January 2008, B.T. was placed in a pre-adoptive home with one of his

2 brothers. A month later, the family told the state child welfare agency that B.T. needed

3 more intensive counseling and a different counselor who could better meet B.T.’s needs.

4

55. In August 2008, both B.T. and his brother were adopted. In March 2011,

5 however, they were both taken back into state foster care. Shortly after this occurred, B.T.

6 reported that his adoptive father had been beating him with a belt.

7

56. The state child welfare agency immediately separated B.T. from his brother,

8 placing the two boys in different non-therapeutic group homes. The group home where

9 B.T. was placed told the state child welfare agency that B.T. desperately needed

10 counseling. Despite this, B.T. did not receive any counseling while at the group home.

11

57. A month after being brought back into state foster care, B.T. was hospitalized in

12 an acute care mental health facility for two weeks. After leaving the hospital, the state

13 child welfare agency returned B.T. to the group home.

14

58. Once back at the group home in May 2011, B.T.’s mental health worsened.

15 DHS approved B.T. for a therapeutic HCTC placement, but did not have one available for

16 him.

17

59. Stuck in the group home, B.T. responded by trying to run away. B.T. spent the

18 night at a juvenile detention center. In that one night, his group home filled his open bed

19 with another child. As a consequence, the state child welfare agency moved B.T. to a new

20 group home hours away from his prior placement.

21

60. In July 2011, B.T. was moved to an HCTC home, but he was still not receiving

22 trauma therapy and no psycho-sexual evaluation had been completed, despite one having

23 been recommended months earlier. It was not until October 2011 that a psycho -sexual

24 evaluation was conducted.

25

61. During April 2012, the state child welfare agency and DHS began looking for

26 another HCTC placement to better meet B.T.’s needs. Unable to find one, the state child

27 welfare agency instead moved him to a non-therapeutic group home/shelter in August

28 2012. By October 2012, B.T. reported “I feel like I get tossed around like a bag of chips.”

13

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 14 of 53

1 He threatened to kill himself three times while in this non-therapeutic congregate care

2 placement.

3

62. In November 2012, the shelter told the state child welfare agency that B.T.

4 needed a higher level of care. The next month he was moved again, this time to a

5 therapeutic group home. While placed there, B.T. continued to express suicidal thoughts.

6

63. In January 2013, B.T. was returned to the same non-therapeutic group

7 home/shelter that had told the state just two months earlier that B.T. needed a higher level

8 of care. B.T. remained at that shelter for a few more weeks before the state child welfare

9 agency moved him again to a therapeutic group home two hours from his home

10 community. In May 2013, the brother with whom B.T. was adopted in 2008 was placed in

11 a pre-adoptive placement with a family that ultimately adopted him. B.T. felt defeated and

12 said he thought he would never get out of the group home. The following month, B.T.

13 grabbed the steering wheel of a van driven by group home staff, saying, “I want us all to

14 die.” That same day, the state’s therapeutic team coordinating B.T.’s behavioral health

15 services reported that “with a few exceptions, B.T. is doing well over the last 2 weeks.”

16

64. Following the apparent suicide attempt, B.T.’s treating psychiatrist

17 recommended that B.T. be placed in a residential treatment facility. An application was

18 made the following month. While that request was pending, the state child welfare agency

19 moved B.T. to another therapeutic group home far from his home county. In September

20 2013, the state child welfare agency moved B.T. to yet another therapeutic group home.

21

65. In March 2014, the state child welfare agency moved B.T. to a non-therapeutic

22 family foster home, but this placement disrupted after DHS failed to provide B.T. with any

23 therapy to support his transition to a family home. In July 2014, B.T. was moved to

24 another non-therapeutic foster home. By September, B.T. had only had a single therapy

25 session.

26

66. In October, DCS moved B.T. to a shelter where he stayed for more than a

27 month. B.T. did not receive any therapy sessions in the placement. In early November,

28 his Child and Family Team (“CFT”) recommended and the state child welfare agency and

14

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 15 of 53

1 DHS approved B.T. for a therapeutic HCTC placement. No such placement was made.

2 Instead, DCS placed B.T. in another therapeutic group home.

3

67. Almost every time the state child welfare agency has moved B.T. over the last

4 three and a half years, he had to go to a new school.

5

68. In December 2014, B.T. threatened to commit suicide while living in the

6 therapeutic group home. In January 2015, B.T. was placed in juvenile detention in

7 Maricopa County following an incident in a prior group home.

8

69. Now 14 years old, B.T. has spent half his life in Arizona foster care custody and

9 does not expect to find a permanent family.

10

A.T.

11

70. As of February 3, 2015, A.T. is a ten-year-old boy in state foster care living in a

12 non-therapeutic group home, with a permanency goal of adoption. He was taken into state

13 foster care custody most recently in September 2011 with his nine-year-old brother.

14 During his time in state foster care, A.T. has been placed in institutional care; deprived of

15 necessary physical, dental and mental health care services; separated from his brother and

16 deprived of sibling visitation; and, has been subject to missed visits by his state child

17 welfare caseworker. As a result of these experiences, A.T. has been subjected to emotional

18 harm and/or an ongoing unreasonable risk of harm.

19

71. A.T. and his younger brother were taken into state foster care custody after their

20 father committed suicide in mid-2011. This was their second time in state foster care.

21 They had also been in state foster care custody prior to 2007. Their mother’s parental

22 rights were terminated in January 2007.

23

72. Following their father’s suicide, the state child welfare agency placed A.T. and

24 his brother in an unlicensed kinship home with an uncle, his wife and their young son. In

25 November 2011, A.T.’s brother was removed from the home and placed in a therapeutic

26 group home. A.T. remained with his uncle’s family.

27

73. During the period from November 2012 to March 2013, the state child welfare

28 agency failed to arrange for sibling visits between A.T. and his brother, and A.T.’s state

15

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 16 of 53

1 caseworker failed to make monthly visits, as required under state policy. In February

2 2013, the state child welfare agency was ordered to ensure that the boys had visitation with

3 each other twice weekly. The state child welfare agency was also ordered to transfer

4 A.T.’s case to the adoption unit to begin the process of finding a permanent family. As

5 alleged below, the state child welfare agency failed to comply with that order.

6

74. As of March 2013, A.T. had not had a routine physical or seen a dentist in a

7 year.

8

75. At a status hearing in April 2013, the juvenile court made a finding of “no

9 reasonable efforts” against the state child welfare agency for its failure to arrange for

10 sibling visitation, to help A.T. progress with his schooling, and to transfer A.T.’s case to

11 the adoption unit. Despite this ruling, and despite the fact that A.T. had been free for

12 adoption since he re-entered care in 2011, the state child welfare agency still failed to

13 transfer A.T.’s case to the adoption unit 13 months later, in May 2014.

14

76. In November 2013, a mental health evaluation was scheduled for A.T. and his

15 brother. The appointment could not proceed because the state child welfare agency and

16 DHS failed to arrange transportation for the boys. As a result, the evaluation had to be re-

17 scheduled for the following month.

18

77. The evaluation was not completed until February 2014. The evaluator

19 concluded that more information was needed with regard to A.T.’s response to his father’s

20 suicide before any therapeutic services could be recommended. Nonetheless, the state

21 child welfare agency and DHS failed to request any further assessments.

22

78. In February 2014, A.T. also reported that his aunt and uncle left him for two to

23 three hours at a time to care for his five-year-old cousin while they delivered newspapers

24 in the early mornings. Around the same time, A.T.’s uncle posted a video on YouTube of

25 himself tasering a 15-year-old child living in the house while another child is heard crying

26 in the background. A.T.’s aunt and uncle were also using corporal punishment to

27 discipline A.T. While these facts were known to the state child welfare agency, it never

28 investigated them.

16

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1

79. That same month, A.T.’s uncle and aunt announced that they were leaving the

2 state and would not be taking A.T. with them. A.T. was thereupon removed from the

3 uncle’s home and placed in the same foster/adoptive home as his brother, but no services

4 were put in place for the first three weeks to help A.T. with the transition. Shortly after

5 being placed in the foster/adoptive home, A.T. started saying he wanted to die.

6

80. The state child welfare agency subsequently moved A.T. to an emergency

7 respite foster home. His brother’s foster family told the state child welfare agency it was

8 willing to have A.T. return to live with them, but not until A.T. received the behavioral

9 health services he needed. Nevertheless, in April 2014, the state child welfare agency

10 moved A.T. to a non-therapeutic group home out of his home county and 1½ hours away

11 from his brother. The state child welfare agency did not arrange visits between the two

12 boys.

13

81. In May 2014, the juvenile court directed the state child welfare agency to

14 immediately place A.T. back in his home county. As A.T. was receiving no therapy or

15 counseling at the time, the court also ordered the state child welfare agency to obtain

16 therapy for A.T. immediately, beginning no later than the end of the month. However, in

17 July 2014, DCS and DHS again failed to coordinate A.T.’s transportation and A.T. was

18 unable to go to his scheduled psychological evaluation.

19

82. Despite the May 2014 court order, A.T. remained in a non-therapeutic group

20 home two hours away from his home community for five months. During that time he had

21 to travel nearly two hours each way to obtain needed mental health services. DCS moved

22 A.T. to a non-therapeutic group home in his home county in September 2014.

23

The C-B Siblings

24

83. The C-B siblings include two brothers, A.C-B and M.C-B, and two sisters, J.C-

25 B and D.C-B, all of whom were taken into state foster care custody in January 2014. As of

26 February 3, 2015, A.C-B is six years old, M.C-B is eight years old, J.C-B is three years old

27 and D.C-B is seven years old. Also as of that date, their permanency goal is reunification.

28 During their time in state foster care, they have been unnecessarily separated, deprived of

17

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 18 of 53

1 needed mental health care and parental visitation, and the sisters were placed in an

2 inappropriate institutional setting. As a result of these experiences, they have been

3 subjected to emotional harm and/or an ongoing unreasonable risk of harm.

4

84. Because of the traumatizing circumstances that led to their being taken into

5 foster care, the siblings’ lawyer requested at the first juvenile court hearing of the case in

6 January 2014 that DHS immediately provide the children with trauma therapy. As alleged

7 further below, the state child welfare agency and DHS delayed those services for nine

8 months.

9

85. The state child welfare agency initially placed the four siblings with a relative

10 2½ hours away from the home from which they were removed. Because of this distant

11 placement, their urgent response assessments, required for every child taken into foster

12 care, were delayed, and the children never received any behavioral health services while in

13 this placement.

14

86. In March 2014, the state child welfare agency removed the children from the

15 relative and placed them in separate locations. The state child welfare agency placed

16 eight-year-old M.C-B and five-year-old A.C-B in a licensed family foster home. Six-year-

17 old D.C-B and two-year-old J.C-B were placed in a non-therapeutic group home. None of

18 the siblings received behavioral health services while in these placements.

19

87. That same month, M.C-B and A.C-B’s foster parents requested that M.C-B

20 receive a psychological evaluation. The evaluation was not conducted for eight months.

21

88. In April 2014, the state child welfare agency moved all four of the C-B siblings

22 to their father’s home. The children’s state child welfare case manager never visited them

23 in the home. The state child welfare agency and DHS also failed to ensure that any of the

24 children received behavioral health services or counseling, even though D.C-B and A.C-B

25 were exhibiting sexualized behaviors indicative of possible sexual abuse. Only two weeks

26 after being placed there, the children’s father requested that the state child welfare agency

27 remove them.

28

18

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1

89. In May 2014, the state child welfare agency again split up the siblings, this time

2 into three different foster homes. M.C-B and A.C-B were placed in the same foster home

3 where they had previously been placed. The state child welfare agency placed each of the

4 girls, D.C-B and J.C-B, in separate foster homes.

5

90. From the time they were taken into custody to May 2014, none of the siblings

6 had any visits with their biological mother.

7

91. Following a juvenile court hearing in early June 2014, DCS agreed to ensure

8 that all four children receive therapy – not just an intake or enrollment – with a trauma

9 therapist by June 20. DCS also agreed to pay for the services if DHS would not pay. In

10 addition, the court directed DCS to provide the children with relational therapy with both

11 parents. DCS further agreed to work with the children’s father to help meet his

12 transportation needs in order to facilitate visitation with the children, including providing

13 him with a gas card. DCS failed to provide any of these services or supports.

14

92. Consequently, on July 2, 2014, the juvenile court made a “no reasonable

15 efforts” finding with regard to DCS’s failure to provide services for the siblings. The court

16 called the agency’s conduct “appalling.”

17

93. In late July 2014, D.C-B was placed in the same foster home as M.C-B and

18 A.C-B. As of February 3, 2015, J.C-B remains in a separate foster home.

19

94. In August 2014, eight months after being brought into foster care, the three

20 eldest siblings finally had their behavioral health evaluations completed.

21

95. In mid-September 2014, nine months after being taken into foster care, M.C-B

22 and A.C-B had received only one therapy session. Though their CFT recommended that

23 they receive weekly therapy sessions, the facility where the therapist is located can only

24 accommodate therapy sessions every other week.

25

96. By September 2014, D.C-B had received only two sessions with a therapist.

26 J.C-B had an intake meeting with her therapist, but her therapy sessions had not yet started.

27

28

19

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1

97. In December 2014, DHS had only just begun the psychological evaluation that

2 M.C-B’s foster parents first requested in March 2014. In addition, M.C-B and A.C-B are

3 both struggling in school with attention problems.

4

J.M.

5

98. As of February 3, 2015, J.M. is a nine-year-old boy with a permanency goal of

6 adoption. He was taken into state foster care when he was six years old. During his time

7 in state foster care custody, J.M. has been deprived of needed mental health care, placed in

8 institutions on numerous occasions, and has had his education repeatedly disrupted. As a

9 result of these experiences, J.M. has been subjected to emotional harm and/or an ongoing

10 unreasonable risk of harm.

11

99. J.M. was brought into state foster care in May 2012. The state child welfare

12 agency initially placed him in a shelter for five days, then moved him to live with his

13 grandmother. When she could not care for him, the state child welfare agency moved J.M.

14 to a group home in a different county. J.M. remained there for two months.

15

100. In July 2012, the state child welfare agency moved J.M. to an unlicensed

16 kinship home back in his home community. J.M. entered first grade that summer. The

17 state child welfare agency failed to ensure that J.M. had transportation to and from school.

18 As a consequence, J.M. missed sixty days of schooling.

19

101. In September 2013, J.M. was moved to another kinship placement two hours

20 from his home county. As a result of this placement change, J.M. had to start second grade

21 at a new school. The move also resulted in a change in J.M.’s mental health providers,

22 disrupting his mental health care.

23

102. In October 2013, the state child welfare agency moved J.M. to a licensed

24 family foster home back in his home county, resulting in yet another school change for

25 J.M.

26

103. In February 2014, the state child welfare agency moved J.M. to a non-

27 therapeutic group home in another county two hours away. As a result, he had to enroll at

28 his fourth school in less than two years since being brought into state foster care. His

20

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 21 of 53

1 teachers began developing an Individualized Education Program (“IEP”) for him, but it

2 was not finalized or implemented. He was also diagnosed with ADHD.

3

104. Between February and June 2014, J.M. had to move among four different

4 group homes, all two hours from his home community. During this period, DHS took the

5 position that J.M. could not be placed in an HCTC therapeutic foster home until he had

6 first received, and exhausted, out-patient counseling. But each time J.M. was forced to

7 move to a different group home, he had to start his therapy over again with a new therapist.

8

105. J.M.’s visitation with his mother was also disrupted when he was moved

9 among these various group homes. J.M. has no siblings and his mother is his only intimate

10 family relationship. She had trouble traveling the two hours by bus to see J.M. at his group

11 homes and the state child welfare agency refused to coordinate alternative transportation

12 for her. Instead, the state child welfare agency required eight-year-old J.M. to travel three

13 hours each way in a transport van for a two-hour visit with his mother.

14

106. In June 2014, DCS removed J.M. from his most recent group home and

15 returned him to a shelter. This placement resulted in another disruption in his education

16 and mental health treatment. With each educational disruption, J.M.’s new school has had

17 to re-start the IEP process of assessment and planning. DCS has failed to ensure that his

18 IEP was completed or provided to his new school, which had to be ordered by the juvenile

19 court.

20

107. Later in June 2014, the state child welfare agency and DHS finally approved

21 J.M. for an HCTC placement after counseling proved inadequate. However, at that time,

22 there were no HCTC placements available and J.M. continued to live at the shelter for four

23 months. In late October, DCS moved him to a licensed non-therapeutic foster home. It

24 was not until November 2014 that his current school concluded the necessary evaluations

25 and finalized his IEP.

26

J.C.

27

108. As of February 3, 2015, J.C. is a ten-year-old boy with a permanency goal of

28 adoption. He was taken into state foster care when he was eight. During the 2½ years he

21

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 22 of 53

1 has been in Arizona foster care, J.C. has suffered delays in needed health care treatment

2 after being diagnosed with PTSD; he has been placed in inappropriate institutional

3 settings; and he has been shuffled through numerous schools. He was also physically

4 abused while in state foster care custody. As a result of these experiences, J.C. has been

5 subjected to emotional and physical harm and/or an ongoing unreasonable risk of harm.

6

109. J.C. was brought into state foster care custody in March 2012. He displayed

7 behaviors that suggested he had been sexually abused, and was placed in an HCTC home.

8 However, in September 2012, he was moved from that home and placed in a non-

9 therapeutic group home. Not surprisingly, his mental health immediately deteriorated.

10 Among other things, he soiled his pants and banged his head against the wall. Despite this,

11 the state child welfare agency kept J.C. in the group home for seven months.

12

110. The state child welfare agency moved J.C. back with his father in March 2013,

13 while retaining legal custody over J.C. J.C.’s father did not take J.C. to his therapy

14 sessions. Nonetheless, the state child welfare agency left J.C. with his father and failed to

15 ensure that J.C. received the care he needed.

16

111. Two months later, nine-year-old J.C. attempted suicide by taking an overdose

17 of his psychotropic medication. He was transported to the emergency room and admitted

18 to a psychiatric hospital for ten days. The state child welfare agency then returned him to

19 his father’s home, still retaining legal custody over J.C.

20

112. In March 2014, J.C. disclosed that his father had been physically abusing him

21 by hitting him with a belt. The state child welfare agency then removed J.C. from his

22 father’s home. The abuse was so severe that the police criminally investigated J.C.’s

23 beating.

24

113. After removing him from his father, the state child welfare agency placed J.C.

25 in a non-therapeutic group home. As a result of this placement change, J.C. had to change

26 schools and has had significant problems adjusting. In July, DCS moved J.C. again, this

27 time to a therapeutic group home in another county, resulting in another school disruption.

28

22

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 23 of 53

1 In August 2014, DCS moved J.C. to an HCTC foster home. As of February 3, 2015, he is

2 still living there.

3 B. The Next Friends

4

114. Pursuant to Fed. R. Civ. P. 17(c)(2), Named Plaintiffs A.T., A.C-B, M.C-B,

5 J.C-B, D.C-B, J.M., and J.C. appear through their next friend Susan M. Brandt. Ms. Brandt

6 is Social Work Supervisor at the Office of Children’s Counsel in Tucson, Arizona. She

7 resides in Tucson.

8

115. Pursuant to Fed. R. Civ. P. 17(c)(2), Named Plaintiffs B.T. and C.P. appear

9 through their next friend Jennifer L. Kupiszewski. Ms. Kupiszewski is an attorney in

10 private practice in Scottsdale who has previously represented children and parents in

11 dependency matters. She resides in Scottsdale, Arizona.

12

116. Pursuant to Fed. R. Civ. P. 17(c)(2), Named Plaintiff B.K. appears through her

13 next friend Margaret R. Tinsley, a retired attorney who has previously represented children

14 and parents in dependency matters. Ms. Tinsley resides in Tempe, AZ.

15 C. The Defendants

16

117. Defendant Gregory McKay is the Director of DCS and is being sued in his

17 official capacity. Director McKay maintains his principal office at the Department of

18 Child Safety, 1717 West Jefferson S/C005A, Phoenix, Arizona 85007. Director McKay is

19 mandated under state law to carry out the purposes of DCS, including the formulation of

20 policies, plans and programs to effectuate DCS’s missions and purposes.

21

118. Defendant Cara M. Christ, M.D., is the Director of DHS and is being sued in

22 her official capacity. Director Christ maintains her principal office at the Department of

23 Health Services, 150 North 18th Avenue, Phoenix, Arizona 85007. Director Christ is

24 mandated under state law to administer DHS, including the formulation of policies, plans

25 and programs to provide mental and behavioral health services to children in DCS foster

26 care custody.

27

119. Defendant Thomas J. Betlach is the Director of AHCCCS and is being sued in

28 his official capacity. Director Betlach maintains his principal office at the Arizona Health

23

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 24 of 53

1 Care Cost Containment System, 801 E. Jefferson Street, MD 4100, Phoenix, Arizona

2 85034. AHCCCS is charged with administering and supervising Arizona’s Medicaid

3 program.

4

FIRST CAUSE OF ACTION – VIOLATION OF PLAINTIFFS’ SUBSTANTIVE

5

DUE PROCESS RIGHTS UNDER THE U.S. CONSTITUTION

6

120. Paragraphs 1-119 above are repeated and re-alleged as if fully set forth herein.

7

121. This claim is asserted against defendants McKay and Christ in their official

8 capacities on behalf of a class of children who are or will be in the legal custody of the

9 Arizona Department of Child Safety due to a report or suspicion of abuse or neglect (the

10 “General Class”).

11

122. DCS provides and is legally obligated to provide members of the General

12 Class with physical and dental health care services through the state Comprehensive

13 Medical and Dental Program (“CMDP”). DCS administers the CMDP.

14

123. DHS provides and is legally obligated to provide members of the General

15 Class with mental and behavioral health services through ADHS Behavioral Health

16 Services (“BHS”). BHS delivers these services through contracts with Regional

17 Behavioral Health Authorities (“RBHAs”) across the state.

18

124. DCS is also responsible for monitoring the physical, behavioral and emotional

19 health status and needs of all members of the General Class and coordinating the physical,

20 behavioral and mental health services provided to those children to ensure that they receive

21 the health care services they need while in state foster care.

22

125. Many children in state foster care need such services to help them cope with

23 the significant trauma to which they were exposed before being removed from their homes.

24 For example, according to the Arizona Office of the Auditor General, “as of September

25 2013, approximately 31 percent of the children in out-of-home care aged 13 or older were

26 clinically diagnosed as emotionally disturbed.”

27

126. DCS and DHS are failing to fulfill their obligations to provide, coordinate and

28 monitor medical, dental, mental and behavioral health services to members of the General

24

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 25 of 53

1 Class. As a result, members of the General Class are being harmed and subjected to an

2 unreasonable risk of harm and deterioration while in DCS state foster care custody.

3

127. In both its 2011 and 2012 annual reports, Arizona’s state -wide Citizen Review

4 Panel (“CRP”) found that many children in state foster care were not receiving adequate

5 mental and behavioral health assessments and services. The CRP “repeatedly observed

6 untreated mental health problems” among children in state foster care. It also found that a

7 “lack of access to comprehensive and timely mental health assessments and services

8 exacerbated the problems of the children” and resulted in, among other things, “multiple

9 disrupted foster and adoptive placements, delays in children obtaining permanency, and

10 CPS involvement in the next generation of children.”

11

128. Moreover, according to the CRP’s 2012 report, “[w]hen services were

12 provided, they were observed to be brief and limited with cases being closed without

13 observation of sustained behavior changes and few aftercare services in place. When

14 children were removed, delays between the time of referral and assessment were observed

15 to cause even longer delays before intervention was provided.”

16

129. Similarly, in its 2013 Report, the CRP found that “the continuum of services . .

17 . for families is limited.” According to the report, “comprehensive services were lacking

18 and existing services are unable to maintain long term change in these families.”

19

130. The CRP is not alone in noting unacceptable shortages and delays in the

20 provision of needed services. According to a 2012 report issued by DES’s own consultant,

21 “[a]s much as half of the time a child spends in [foster care] is spent waiting on services.”

22 More recently, the Office of the Auditor General’s report on DCS policy and practice

23 recognized the “[i]nadequate access to behavioral health services” for youth in foster care .

24

131. The Arizona Chapter of the Foster Family-Based Treatment Association

25 (“FFTA”) has also noted the severe shortage of mental health services delivered by

26 professional foster homes (also known as “therapeutic foster homes”) to children in state

27 foster care. These services, referred to in Arizona as “Home Care Training to Home Care

28 Client Services” (“HCTC”), are supposed to be available to children in state foster care

25

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 26 of 53

1 who need therapeutic family-based intervention. These therapeutic foster homes are

2 administered by DHS through RBHAs. DCS pays room and board for children in state

3 foster care placed in HCTC homes.

4

132. There are currently only about 400 HCTC homes for more than 16,500

5 children in state foster care. Moreover, most of these homes are only licensed for 1 or 2

6 placements, severely limiting the number of children for whom these homes are available.

7 The severe shortage of HCTC homes places members of the General Class at an

8 unreasonable risk of deteriorating while in state foster care.

9

133. The shortage of HCTC providers, coupled with the short-term nature of HCTC

10 services (DHS has a practice of requiring such services to be re-authorized every 90 days),

11 also subjects children in state foster care to emotionally harmful placement instability, as

12 children are moved out of HCTC homes far too soon after being placed there. The CRP’s

13 2013 Report specifically found that the HCTC placement structure “causes disruption

14 when a specialized placement is required to meet a child’s needs.” This placement

15 disruption causes children with higher needs to “yo-yo” up and down in terms of their

16 behaviors, thereby driving additional placement moves, which results in even further

17 unnecessary re-traumatization.

18

134. The Arizona Auditor General has also recognized the state child welfare

19 agency’s and DHS’s practice of failing to provide “long-term solutions for children in need

20 of continued support” for their mental health needs. According to the Auditor General’s

21 Report, “[c]hildren whose behavioral health improves in therapeutic foster homes may be

22 moved to less restrictive family settings, but without the same continued support, their

23 behaviors may worsen, resulting in placement disruptions and subsequent placement in

24 congregate care.”

25

135. DCS and DHS further abdicate their legal duty to provide care for members of

26 the General Class by leaving the decision whether children should be placed in HCTC

27 homes to the six RBHAs that operate throughout the state, rather than allowing that

28 decision to be made by the children’s Child and Family Teams (“CFTs”). Making matters

26

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 27 of 53

1 worse, the RBHAs have different processes for determining whether HCTC should be

2 provided to the children in their geographic regions. As a result, the availability of HCTC

3 turns in part on the fortuitous circumstance of where the member of the General Class

4 happens to live at the time HCTC is requested.

5

136. DCS caseworkers also fail to meet their obligation under agency policy to

6 participate in CFT meetings, including inter-agency meetings with DHS, that are a

7 prerequisite to members of the General Class receiving behavioral health services. When

8 DCS caseworkers do not join CFT meetings, essential information about a child’s needs is

9 not shared, treatment planning and referrals are held up, and services are delayed. These

10 deficiencies expose members of the General Class to an undue risk that they will not

11 receive the behavioral services they require, leading to a deterioration of the child’s

12 condition while in state foster care custody.

13

137. Remarkably, even former DES Director Carter acknowledged at an

14 October 17, 2013 meeting of the CPS Oversight Committee that DES does not collect data

15 in a way that enables the child welfare agency to show that a particular set of family

16 interventions is effective. At the same meeting, Ms. Sotomayor, then Assistant Director

17 for the former DES Division of Children, Youth and Families, agreed that it is unclear

18 whether a number of services provided by DES “are appropriate or adequate” for families.

19

138. In addition to the lack of adequate mental health services, far too many

20 children in state foster care fail to receive needed physical health care services. According

21 to the state’s Practice Improvement Case Review (“PICR”) for 2013, DCS failed to

22 properly assess and address the children’s physical health needs in a third (34%) of the

23 cases reviewed. The same review found that 22% of children who had been in foster care

24 for more than 12 months had not received a comprehensive physical health examination.

25 In addition, more than 40% of children who had been in care for less than a year did not

26 receive an examination within 30 days as required by agency policy. Based on the same

27 2013 PICR, DCS had failed to assess and provide necessary services to address the

28 children’s mental health needs in nearly one in five cases reviewed.

27

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 28 of 53

1

139. Based on the 2012 PICR, the state child welfare agency failed to meet the

2 physical health care needs of children in state foster care in 49% of the cases reviewed.

3

140. Moreover, according to the state child welfare agency’s own data, during

4 federal fiscal year 2012, 36% of children in state foster care ages three to six did not

5 receive well-care visits required under the periodicity schedule that the state is required to

6 establish under the EPSDT provisions of the federal Medicaid Act. A nearly identical

7 percentage of adolescents in foster care likewise failed to receive such required health care

8 visits. Similar failures in providing such services to these age groups were reported for

9 federal fiscal years 2009, 2010 and 2011.

10

141. In addition, according to the state’s PICR for 2013, 34% of children who had

11 been in state foster care for more than six months were found not to have had a dental

12 examination within the most recent six months. During 2012, the number of children who

13 had missed required dentist visits was nearly four in ten.

14

142. The inadequacy of the health care services provided to the General Class

15 subjects these children to harm and/or an unreasonable risk of suffering ongoing physical

16 and emotional harm and deterioration while in state foster care.

17

143. A state assumes an affirmative duty under the Fourteenth Amendment to the

18 United States Constitution to protect a child from an unreasonable risk of harm once it

19 takes that child into its legal foster care custody.

20

144. Defendant McKay directly and indirectly controls and is responsible for the

21 child welfare policies and practices of DCS. The foregoing DCS policies and practices fail

22 to satisfy its affirmative duty to protect the General Class, including the Named Plaintiffs,

23 from an unreasonable risk of physical and emotional harm. These failures are a substantial

24 factor leading to, and proximate cause of, the ongoing violation of the General Class’s

25 constitutionally protected liberty and privacy rights.

26

145. Defendant Christ directly and indirectly controls and is responsible for the

27 policies and practices regarding the provision of mental and behavioral health services by

28 DHS. The foregoing DHS policies and practices fail to satisfy its affirmative duty to

28

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 29 of 53

1 protect the General Class, including the Named Plaintiffs, from an unreasonable risk of

2 emotional harm. These failures are a substantial factor leading to, and proximate cause of,

3 the ongoing violation of the General Class’s constitutionally protected liberty and privacy

4 rights.

5

146. The foregoing policies and practices of DCS and DHS described herein

6 constitute a policy, pattern, custom and/or practice that shocks the conscience, is outside

7 the exercise of any professional judgment, and amounts to deliberate indifference to the

8 constitutionally protected rights and liberty and privacy interests of the Named Plaintiffs

9 and other members of the General Class. As a result, all members of the General Class

10 have been harmed or are being subjected to an ongoing unreasonable risk of harm, in

11 deprivation of their substantive due process rights guaranteed by the Fourteenth

12 Amendment to the United States Constitution.

13

147. These substantive due process rights include, but are not limited to: the right

14 of members of the General Class to protection from harm and unreasonable risk of harm

15 while in state foster care custody; the right to a living environment that protects the

16 physical, mental and emotional safety and well-being of the General Class; the right to

17 necessary treatment, care and services to prevent members of the General Class from

18 deteriorating or being harmed physically, psychologically or otherwise while in state foster

19 care; and the right to adequate caseworker supervision and monitoring of the General

20 Class’s safety and well-being.

21

148. As of September 30, 2014, there were 16,990 members of the General Class.

22 The General Class is sufficiently numerous to make individual joinder impracticable.

23

149. Named Plaintiffs’ First Cause of Action raises questions of fact and law that

24 are common to, and typical of, all members of the General Class. Such common questions

25 of fact include:

26

a. Whether DCS has a practice of failing to provide members of the

27

General Class with legally required medical and dental services necessary to keep

28

29

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 30 of 53

1

the General Class safe and properly cared for, and to prevent them from

2

deteriorating physically while in state foster care custody;

3

b. Whether DHS has a practice of failing to provide members of the

4

General Class with legally required mental and behavioral health services necessary

5

to keep the General Class safe and properly cared for, and to prevent them from

6

deteriorating emotionally and psychologically while in state foster care custody; and

7

c. Whether DCS has a practice of failing to coordinate and ensure that

8

the General Class are provided with the legally required mental and behavioral

9

health services to keep the General Class safe and properly cared for, and to prevent

10

them from deteriorating emotionally and psychologically while in state foster care

11

custody.

12

150. Such common questions of law include whether DCS’s and DHS’s actions and

13 inactions violate the General Class’s substantive due process rights to be free from harm

14 and an unreasonable risk of harm while in state foster care custody.

15

151. Named Plaintiffs will fairly and adequately protect the interests of the General

16 Class they seek to represent.

17

152. Named Plaintiffs and the putative General Class are represented by:

18

a. Attorneys employed by Perkins Coie LLP, an international law firm

19

with an office in Phoenix, Arizona, whose attorneys have extensive experience in

20

complex civil and public interest litigation, including class action litigation;

21

b. Attorneys employed by the Arizona Center for Law in the Public

22

Interest, a nonprofit legal organization based in Phoenix whose attorneys also have

23

extensive experience in complex civil and public interest litigation, including class

24

action litigation; and

25

c. Attorneys employed by Children’s Rights, Inc., a nonprofit legal

26

organization whose attorneys have substantial experience and expertise in child

27

welfare class actions nationally.

28

30

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 31 of 53

1

153. The attorneys and organizations listed above have investigated all claims in

2 this action and have committed sufficient resources to represent the General Class.

3

154. Each Named Plaintiff appears by a next friend, and each next friend is

4 sufficiently familiar with the facts of the child’s situation to fairly and adequately represent

5 the child’s interests in this litigation.

6

155. Defendants McKay and Christ have acted or failed to act on grounds generally

7 applicable to the General Class, necessitating declaratory and injunctive relief. Plaintiffs’

8 counsel know of no conflicts between or among members of the General Class.

9

SECOND CAUSE OF ACTION – VIOLATION OF PLAINTIFFS’ RIGHTS

10

UNDER THE EPSDT PROVISIONS OF THE MEDICAID ACT

11

156. Paragraphs 1-155 above are repeated and re-alleged as if fully set forth herein.

12

157. This claim is asserted against defendants McKay, Christ and Betlach in their

13 official capacities on behalf of all members of the General Class who are eligible for

14 Medicaid (the “Medicaid Subclass”).

15

158. Medicaid is a joint federal-state program under Title XIX of the Social

16 Security Act, 42 U.S.C. § 1396, et seq., designed to provide medically necessary physical

17 and mental health care to, among others, eligible children.

18

159. States that choose to participate in the Medicaid program are reimbursed by

19 the federal government for a portion of the cost of providing Medicaid benefits. To

20 receive federal funds, states must comply with the requirements set forth in Title XIX of

21 the Social Security Act and its implementing regulations. Among those requirements,

22 states are required to develop state plans that identify the medical services available to

23 eligible beneficiaries.

24

160. Children in state foster care are eligible beneficiaries of Medicaid services

25 under 42 U.S.C. § 1396a(a)(10)(A)(i)(I).

26

161. Under 42 U.S.C. § 1396a(a)(10)(A) and 42 U.S.C. § 1396d(a)(4)(B), states are

27 required to provide EPSDT services to eligible children in state foster care. The required

28 screening services are set forth in 42 U.S.C. § 1396d(r)(1), while §§ 1396a(a)(43)(C) and

31

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 32 of 53

1 1396d(r)(5) require states to provide necessary health care, diagnostic services and treatment

2 to correct or ameliorate defects or physical and mental illnesses and conditions discovered

3 by those screening services.

4

162. Under 42 U.S.C. § 1396d(r)(1)(A)(i) and 42 C.F.R. § 441.58, states are

5 required to establish periodicity schedules setting forth when the screening services

6 required under the Medicaid Act must be provided.

7

163. Moreover, under 42 U.S.C. § 1396a(a)(8) and 42 C.F.R. § 435.930(a), states

8 must provide EPSDT services with reasonable promptness.

9

164. The policy underlying the EPSDT mandate is to prevent illness, as well as to

10 ensure that health problems are comprehensively diagnosed and then treated as soon as

11 they are detected, before they become more complex and their treatment more costly.

12

165. Pursuant to a contract with AHCCCS, DCS serves as the statewide

13 administrator responsible for the provision of physical, dental, vision and hearing health

14 care services, including screening, diagnostic and treatment services, to members of the

15 Medicaid Subclass. DCS and AHCCCS are legally obligated to ensure that members of

16 the Medicaid Subclass receive such medical services. DCS provides such medical services

17 through CMDP.

18

166. DCS also determines the Medicaid eligibility of every child in state foster care

19 custody.

20

167. Pursuant to a contract with AHCCCS, DHS serves as the statewide

21 administrator responsible for the provision of mental and behavioral health care services,

22 including screening, diagnostic and treatment services, to members of the Medicaid

23 Subclass. DHS and AHCCCS are legally obligated to ensure that members of the

24 Medicaid Subclass receive such medical services. DHS provides such services through

25 BHS, which, in turn, delivers these services through contracts with RBHAs across the

26 state.

27

168. Under Arizona’s EPSDT Periodicity Schedule, DCS is required to provide

28 annual physical examinations to members of the Medicaid Subclass who are age three and

32

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 33 of 53

1 older, and more frequent physical examinations to members of the Medicaid Subclass

2 under age three. The state’s Periodicity Schedule further requires DCS to provide annual

3 vision screenings to members of the Medicaid Subclass ages 4-6, 8, 10 and 12 years old,

4 and semi-annual dental examinations to members of the Medicaid Subclass who are six

5 months of age or older.

6

169. DCS’s Policy and Procedure Manual further provides that it is the

7 responsibility of the DCS foster care caseworker to ensure that a child entering foster care

8 be given a complete medical examination that meets EPSDT requirements within 30 days

9 after initial placement in out-of-home care.

10

170. As for mental and behavioral health services, DHS is required under Arizona’s

11 EPSDT Periodicity Schedule to provide members of the Medicaid Subclass age three and

12 older with annual psychosocial/behavioral assessments. For members of the Medicaid

13 Subclass under the age of three, the Periodicity Schedule requires DHS to provide more

14 frequent psychosocial/behavioral assessments.

15

171. Under DHS Policy, DHS is also responsible for conducting an Urgent

16 Response assessment of every child within 24 hours of removal from his or her home to

17 detect both initial and delayed effects of trauma.

18

172. AHCCCS is charged under state statutes and the federal Medicaid Act with

19 the responsibility to administer and supervise Arizona’s Medicaid program.

20 Notwithstanding its contracts with DCS and DHS, AHCCCS has the authority and

21 responsibility to determine the state’s Medicaid eligibility policies and criteria, its service

22 coverage and its payment policies. AHCCCS is also responsible for ensuring the state’s

23 compliance with federal Medicaid requirements, including the provision of EPSDT

24 services, and for supervising the compliance of DCS and DHS under their contacts with

25 AHCCCS.

26

173. Defendants McKay, Christ and Betlach have a practice of failing to provide

27 members of the Medicaid Subclass with the screening, diagnostic and treatment services

28

33

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 34 of 53

1 required under the EPSDT provisions of the Medicaid Act, in violation of 42 U.S.C. §§

2 1396a(a)(10)(A)(i)(I), 1396a(a)(43)(C), 1396d(a)(4)(B) and 1396d(r).

3

174. Defendants McKay, Christ and Betlach also have a practice of failing to provide

4 such services with reasonable promptness, in violation of 42 U.S.C. § 1396a(a)(8) and 42

5 C.F.R. § 435.930(a).

6

175. The foregoing policies and practices of defendant McKay, who directly and

7 indirectly controls and is responsible for the policies and practices of DCS, defendant

8 Christ, who directly and indirectly controls and is responsible for the policies and practices

9 of DHS, and defendant Betlach, who is responsible for supervising the compliance of DCS

10 and DHS under their contracts with AHCCCS and ensuring their compliance with federal

11 law, violate the rights of Named Plaintiffs and the Medicaid Subclass under the Medicaid

12 Act.

13

176. As of September 30, 2014, there were over 10,000 members of the Medicaid

14 Subclass. The Medicaid Subclass is sufficiently numerous to make individual joinder

15 impracticable.

16

177. Named Plaintiffs’ Second Cause of Action raises questions of fact and law that

17 are common to, and typical of, all members of the Medicaid Subclass. Such common

18 questions of fact include:

19

a. Whether DCS has a practice of failing to provide members of the

20

Medicaid Subclass with screening services that comply with the state’s Periodicity

21

Schedule;

22

b. Whether DCS has a practice of failing to provide members of the

23

Medicaid Subclass with medically necessary diagnostic and treatment services;

24

c. Whether DHS has a practice of failing to provide members of the

25

Medicaid Class with screening services that comply with the state’s Periodicity

26

Schedule; and

27

d. Whether DHS has a practice of failing to provide members of the

28

Medicaid Subclass with medically necessary diagnostic and treatment services.

34

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 35 of 53

1

178. Such common questions of law include whether DCS’s, DHS’s and

2 AHCCCS’s actions and inactions violate the Medicaid Subclass’s rights under the EPSDT

3 provisions of the federal Medicaid Act.

4

179. Named Plaintiffs will fairly and adequately protect the interests of the

5 Medicaid Subclass they seek to represent.

6

180. Named Plaintiffs and the putative Medicaid Subclass are represented by:

7

a. Attorneys employed by Perkins Coie LLP, an international law firm

8

with an office in Phoenix, Arizona, whose attorneys have extensive experience in

9

complex civil and public interest litigation, including class action litigation;

10

b. Attorneys employed by the Arizona Center for Law in the Public

11

Interest, a nonprofit legal organization based in Phoenix whose attorneys also have

12

extensive experience in complex civil and public interest litigation, including class

13

action litigation; and

14

c. Attorneys employed by Children’s Rights, Inc., a nonprofit legal

15

organization whose attorneys have substantial experience and expertise in child

16

welfare class actions nationally.

17

181. The attorneys and organizations listed above have investigated all claims in

18 this action and have committed sufficient resources to represent the Medicaid Subclass.

19

182. Each Named Plaintiff appears by a next friend, and each next friend is

20 sufficiently familiar with the facts of the child’s situation to fairly and adequately represent

21 the child’s interests in this litigation.

22

183. Defendants McKay, Christ and Betlach have acted or failed to act on grounds

23 generally applicable to the Medicaid Subclass, necessitating declaratory and injunctive

24 relief. According to Director Betlach’s May 17, 2015 motion to intervene in this ac tion, it

25 is not possible to enter the relief sought in this Cause of Action without AHCCCS as a

26 defendant. Plaintiffs’ counsel know of no conflicts between or among members of the

27 Medicaid Subclass.

28

35

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 36 of 53

1 THIRD CAUSE OF ACTION – VIOLATION OF PLAINTIFFS’ SUBSTANTIVE DUE PROCESS RIGHTS UNDER THE U.S. CONSTITUTION
2

3

184. Paragraphs 1-183 above are repeated and re-alleged as if fully set forth herein.

4

185. This claim is asserted on behalf of the General Class against defendant McKay

5 in his official capacity.

6

Members of the General Class Are Not Receiving Timely Investigations of

Reports That They Have Been Maltreated in State Foster Care Custody. 7

8

186. In late 2013, it was publicly disclosed for the first time that the state child

9 welfare agency had failed to investigate 6,600 reports of alleged child abuse and neglect

10 between 2009 and 2013, choosing instead to simply set those reports aside. In July 2014,

11 it was disclosed that in another 14,000 cases, no documentation had been entered in the

12 child’s or family’s case file for 60 days or more through April 2014.

13

187. While the legislation passed on May 29, 2014 attempts to address those

14 enormous backlogs, DCS’s failure to complete child maltreatment investigations in a

15 timely manner is not limited to those 20,600 reports and cases. In fact, DCS is also failing

16 to initiate and complete investigations in a timely manner of reports that children have

17 been abused or neglected while in state foster care. DES’s own consultants acknowledged

18 in 2012 that foster care workers “often have a backlog” of new maltreatment reports

19 involving children in state foster custody.

20

188. According to the state child welfare agency’s own data, during federal fiscal

21 year 2012, the state child welfare agency failed to initiate investigations into 36% of all

22 reports that children in state foster care custody had been abused or neglected, within the

23 time frames required under state policy. During the six-month period from October 1, 2012

24 through March 31, 2013, 54% of all investigations involving children in state foster care

25 were initiated late.

26

189. State law and agency policy further requires that the outcomes of child

27 maltreatment investigations be entered into the State’s child welfare information database

28 within 45 days and that investigations be closed within 60 days. However, according to

36

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 37 of 53

1 state data, during the six-month period from October 1, 2012 to March 31, 2013, the state

2 child welfare agency failed to meet this 60-day deadline in the large majority of

3 investigations involving children already in state foster care, regardless of the level of risk

4 to which members of the General Class were exposed. In fact, 72% of investigations into

5 high risk reports involving a present danger to children in state foster care were still not

6 closed after 60 days; 73% of investigations into reports involving an impending danger to

7 children in care were not closed in a timely manner; 72% of investigations into reports that

8 children in care had been abused or neglected within the past 30 days were not closed

9 within the required period; and 78% of investigations were not closed within the required

10 timeframe where the reports involved children in state foster care who had been abused or

11 neglected more than 30 days prior, the date of the last occurrence of abuse or neglect was

12 unknown, or the child was exposed to an unreasonable risk of harm.

13

190. These widespread delays in initiating and completing investigations into

14 reported child abuse and neglect subject members of the General Class to an unreasonable

15 risk of physical and emotional harm while in state foster care.

16

191. A state assumes an affirmative duty under the Fourteenth Amendment to the

17 United States Constitution to protect a child from an unreasonable risk of harm once it

18 takes that child into its legal foster care custody.

19

192. Defendant McKay directly and indirectly controls and is responsible for the

20 child welfare policies and practices of DCS. The foregoing DCS policies and practices fail

21 to satisfy its affirmative duty to protect the General Class, including the Named Plaintiffs,

22 from an unreasonable risk of physical and emotional harm. These failures are a substantial

23 factor leading to, and proximate cause of, the ongoing violation of the General Class’s

24 constitutionally protected liberty and privacy rights.

25

193. The foregoing policies and practices of DCS described herein constitute a

26 policy, pattern, custom and/or practice that shocks the conscience, is outside the exercise

27 of any professional judgment, and amounts to deliberate indifference to the constitutionally

28 protected rights and liberty and privacy interests of the Named Plaintiffs and other

37

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 38 of 53

1 members of the General Class. As a result, all members of the General Class have been

2 harmed or are being subjected to an ongoing unreasonable risk of harm, in deprivation of

3 their substantive due process rights guaranteed by the Fourteenth Amendment to the

4 United States Constitution.

5

194. These substantive due process rights include, but are not limited to: the right of

6 members of the General Class to protection from harm and unreasonable risk of harm

7 while in state foster care custody; the right to a living environment that protects the

8 physical, mental and emotional safety and well-being of the General Class; the right to

9 necessary treatment, care and services to prevent members of the General Class from

10 deteriorating or being harmed physically, psychologically or otherwise while in state foster

11 care; and the right to adequate caseworker supervision and monitoring of the General

12 Class’s safety and well-being.

13

195. As of September 30, 2014, there were 16,990 members of the General Class.

14 The General Class is sufficiently numerous to make individual joinder impracticable.

15

196. Named Plaintiffs’ Third Cause of Action raises questions of fact and law that

16 are common to, and typical of, all members of the General Class. Such common questions

17 of fact include whether DCS has a practice of failing to conduct timely investigations into

18 reports that members of the General Class have been abused or neglected while in state

19 foster care custody.

20

197. Such common questions of law include whether DCS’s actions and inactions

21 violate the General Class’s substantive due process rights to be free from harm and an

22 unreasonable risk of harm while in state foster care custody.

23

198. Named Plaintiffs will fairly and adequately protect the interests of the General

24 Class they seek to represent.

25

199. Named Plaintiffs and the putative General Class are represented by:

26

a. Attorneys employed by Perkins Coie LLP, an international law firm

27

with an office in Phoenix, Arizona, whose attorneys have extensive experience in

28

complex civil and public interest litigation, including class action litigation;

38

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 39 of 53

1

b. Attorneys employed by the Arizona Center for Law in the Public

2

Interest, a nonprofit legal organization based in Phoenix whose attorneys also have

3

extensive experience in complex civil and public interest litigation, including class

4

action litigation; and

5

c. Attorneys employed by Children’s Rights, Inc., a nonprofit legal

6

organization whose attorneys have substantial experience and expertise in child

7

welfare class actions nationally.

8

200. The attorneys and organizations listed above have investigated all claims in

9 this action and have committed sufficient resources to represent the General Class.

10

201. Each Named Plaintiff appears by a next friend, and each next friend is

11 sufficiently familiar with the facts of the child’s situation to fairly and adequately represent

12 the child’s interests in this litigation.

13

202. Defendant McKay has acted or failed to act on grounds generally applicable to

14 the General Class, necessitating declaratory and injunctive relief. Plaintiffs’ counsel know

15 of no conflicts between or among members of the General Class.

16 FOURTH CAUSE OF ACTION – VIOLATION OF PLAINTIFFS’ SUBSTANTIVE

17

DUE PROCESS RIGHTS UNDER THE U.S. CONSTITUTION

18

203. Paragraphs 1-202 above are repeated and re-alleged as if fully set forth herein.

19

204. This claim is asserted against Defendant McKay in his official capacity on

20 behalf of all members of the General Class, except those children who are or will be in a

21 kinship placement (the “Non-Kinship Subclass”).

22

A. The Non-Kinship Subclass Suffers from a Severe Shortage of Foster

23

Homes.

24

205. The state child welfare agency has failed to provide members of the Non-

25 Kinship Subclass with an adequate number and array of foster care placements. The

26 severe shortage of foster care placements frequently results in the state child welfare

27 agency placing members of the Non-Kinship Subclass in the first available bed, rather than

28 selecting placements based on the children’s needs.

39

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 40 of 53

1

206. While Arizona’s population of children in out-of-home care has grown by 56%

2 from September 2009 to March 2014, the number of Arizona foster families has only

3 increased by 9%, and the percentage of children placed in licensed foster homes has

4 decreased by 9%, during the same time period.

5

207. As of September 30, 2014, there were 9,418 children in state foster care who

6 were not placed with relatives or in trial home reunification settings. Nevertheless, the

7 state child welfare agency reported that it had licensed only 4,397 foster homes to accept

8 children in state foster care. Moreover, these foster homes provided only 5,669 available

9 spaces that could potentially match the needs of the children in DCS’s custody. Even

10 assuming that each of these spaces matched the needs of the Non-Kinship Class, 3,749

11 class members would still be without a foster home.

12

208. A spokeswoman for DCS acknowledged in July 2014 that the department

13 “desperately needs more foster families to care for the increased number of children in out -

14 of-home care.”

15

209. A recent DCS report stated that “[h]omes are needed for children of all ages,

16 however the most significant shortages of homes are for teens, sibling groups, and children

17 who have complex medical needs.” The agency admits that “[t]here is a significant need

18 for additional foster and adoptive homes in all areas of Arizona.”

19

210. According to a recent audit by the Arizona Auditor General, the state child

20 welfare agency “has not adequately implemented” performance-based contracting in the

21 contracts it has entered into with private child placing agencies to recruit foster parents,

22 identify and arrange child placement options, and supervise and monitor licensed foster

23 parents. The audit also found that the state child welfare agency has not developed

24 policies and procedures for monitoring the performance measures in its contracts, has not

25 used performance measure data to assess contractor performance, and has not adequately

26 designed the contracts to incentivize performance.

27

211. In addition to the inadequate recruiting of new foster homes, a 2012 survey

28 conducted by Arizona State University noted that programs and financial benefits available

40

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 41 of 53

1 to foster families have been drastically cut in recent years due to severe budget constraints.

2 For example, in 2009, the state cut foster family reimbursement rates and allowances for

3 clothing.

4

212. The scarcity of foster homes in Arizona is a well-known problem. In 2012,

5 The Arizona Republic reported that “[t]he state is in dire need of families to care for

6 children removed from their homes because of suspected abuse or neglect. But families

7 leave the foster care system faster than new ones come in. Many who leave say it’s not

8 necessarily the children who have caused them to turn in their license but their frustration

9 with the system’s inability to help them.”

10

213. Former DCS director Charles Flanagan has also acknowledged to members of

11 the state legislature that there are many instances when children have slept in agency

12 offices because the agency did not have a placement for them.

13

214. In fact, according to a recent press account, over just a six-day span from

14 September 28 to October 4, 2014, 36 members of the Non-Kinship Subclass spent at least

15 one night in DCS office buildings in Maricopa and Pima counties. Of those 36 children,

16 10 were between 2 and 5 years old, 11 were between 6 and 12 years old, and 15 were

17 between 13 and 18 years old. According to Gene Burns, who supervises DCS after-hours

18 units, “[i]n the 17 years [he has] been here, the biggest shock to [him] is when [DCS]

19 bought cribs” for the young children sleeping at DCS’s offices. As he acknowledged,

20 “[t]his is not the place to put a kid.”

21

B. Because of the Shortage of Foster Homes, Members of the Non-Kinship

22

Subclass Are Frequently Placed Far from Their Home Communities.

23

215. DCS’s failure to maintain an adequate array of foster homes harms members

24 of the Non-Kinship Subclass by causing them to be placed, or putting them at an

25 unreasonable risk of being placed, far from their home communities. Such placements

26 disconnect members of the Non-Kinship Subclass from family, friends, and neighbors, and

27 frequently lead to highly disruptive changes in schooling.

28

41

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 42 of 53

1

216. Only 31% of all children in foster care as of September 30, 2012, for whom

2 removal and current zip code information was available, were placed within the same zip

3 code as their homes. Moreover, nearly half of these children were placed outside their

4 home city.

5

217. Consultants retained by DES reported that in 2011, almost 60% of children in

6 state foster care were placed over an hour from their homes. As the consultant reco gnized,

7 “[t]his makes parent visits and services difficult and contributes to Ongoing staff driving

8 more hours and spending more time away from their other cases.”

9

C. Because of the Shortage of Foster Homes, Members of the Non-Kinship

10

Subclass Are Frequently Separated from Their Siblings.

11

218. For children entering state foster care, siblings can serve as a crucial buffer

12 against the emotional upheaval of being separated from their parents. Sibling relationships

13 can also promote resilience as children navigate the trauma of removal. In recognition of

14 the importance of maintaining sibling relationships, federal law requires states to make

15 reasonable efforts to place siblings together, unless contrary to a sibling’s safety or well -

16 being – a requirement echoed in Arizona state policy.

17

219. DCS’s failure to maintain an adequate array of foster homes harms members

18 of the Non-Kinship Subclass by causing them to be separated, or putting them at an

19 unreasonable risk of being separated, from their siblings. As of September 30, 2013, the

20 state child welfare agency failed to place all siblings together in 35% of cases, and failed to

21 place at least two siblings together in 24% of cases. Based on information the state child

22 welfare agency submitted to the federal government in 2012, in nearly 40% of cases when

23 at least two siblings entered out-of-home care, the state child welfare agency failed to

24 place them together. The Sstate child welfare agency’s performance was nearly as bad

25 every year from 2008 through 2011. A DES official acknowledged in 2012 that it had

26 become more difficult to place siblings in the same home because of the shortage of foster

27 families and because more children stay in care longer.

28

42

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 43 of 53

1

220. A state assumes an affirmative duty under the Fourteenth Amendment to the

2 United States Constitution to protect a child from an unreasonable risk of harm once it

3 takes that child into its legal foster care custody.

4

221. Defendant McKay directly and indirectly controls and is responsible for the

5 child welfare policies and practices of DCS. The foregoing DCS policies and practices fail

6 to satisfy its affirmative duty to protect the Non-Kinship Subclass, including the Named

7 Plaintiffs, from an unreasonable risk of physical and emotional harm. These failures are a

8 substantial factor leading to, and proximate cause of, the ongoing violation of the Non-

9 Kinship Subclass’s constitutionally protected liberty and privacy rights.

10

222. The foregoing policies and practices of DCS described herein constitute a

11 policy, pattern, custom and/or practice that shocks the conscience, is outside the exercise

12 of any professional judgment, and amounts to deliberate indifference to the constitutionally

13 protected rights and liberty and privacy interests of the Named Plaintiffs and other

14 members of the Non-Kinship Subclass. As a result, all members of the Non-Kinship

15 Subclass have been harmed or are being subjected to an ongoing unreasonable risk of

16 harm, in deprivation of their substantive due process rights guaranteed by the Fourteenth

17 Amendment to the United States Constitution.

18

223. These substantive due process rights include, but are not limited to: the right

19 of members of the Non-Kinship Subclass to protection from harm and unreasonable risk of

20 harm while in state foster care custody; the right to a living environment that protects the

21 physical, mental and emotional safety and well-being of the Non-Kinship Subclass; the

22 right to necessary treatment, care and services to prevent members of the Non-Kinship

23 Subclass from deteriorating or being harmed physically, psychologically or otherwise

24 while in state foster care; and the right to adequate caseworker supervision and monitoring

25 of the Non-Kinship Subclass’s safety and well-being.

26

224. As of September 30, 2014, there were 9,454 members of the Non-Kinship

27 Subclass. The Non-Kinship Subclass is sufficiently numerous to make individual joinder

28 impracticable.

43

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 44 of 53

1

225. Named Plaintiffs’ Fourth Cause of Action raises questions of fact and law that

2 are common to, and typical of, all members of the Non-Kinship Subclass. Such common

3 questions of fact include:

4

a. Whether DCS maintains an adequate number and array of foster home

5

placements for members of the Non-Kinship Subclass; and

6

b. Whether a shortage of foster homes subjects members of the Non-

7

Kinship Subclass to an unreasonable risk of being placed far from their families,

8

schools and home communities.

9

226. Such common questions of law include whether DCS’s actions and inactions

10 violate the Non-Kinship Subclass’s substantive due process rights to be free from harm

11 and an unreasonable risk of harm while in state foster care custody.

12

227. Named Plaintiffs will fairly and adequately protect the interests of the Non-

13 Kinship Subclass they seek to represent.

14

228. Named Plaintiffs and the putative Non-Kinship Subclass are represented by:

15

a. Attorneys employed by Perkins Coie LLP, an international law firm

16

with an office in Phoenix, Arizona, whose attorneys have extensive experience in

17

complex civil and public interest litigation, including class action litigation;

18

b. Attorneys employed by the Arizona Center for Law in the Public

19

Interest, a nonprofit legal organization based in Phoenix whose attorneys also have

20

extensive experience in complex civil and public interest litigation, including class

21

action litigation; and

22

c. Attorneys employed by Children’s Rights, Inc., a nonprofit legal

23

organization whose attorneys have substantial experience and expertise in child

24

welfare class actions nationally.

25

229. The attorneys and organizations listed above have investigated all claims in

26 this action and have committed sufficient resources to represent the Non-Kinship Subclass.

27

28

44

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 45 of 53

1

230. Each Named Plaintiff appears by a next friend, and each next friend is

2 sufficiently familiar with the facts of the child’s situation to fairly and adequately represent

3 the child’s interests in this litigation.

4

231. Defendant McKay has acted or failed to act on grounds generally applicable to

5 the Non-Kinship Subclass, necessitating declaratory and injunctive relief. Plaintiffs’

6 counsel know of no conflicts between or among members of the Non-Kinship Subclass.

7

FIFTH CAUSE OF ACTION – VIOLATION OF PLAINTIFFS’ RIGHTS TO

8

FAMILY INTEGRITY UNDER THE U.S. CONSTITUTION

9

232. Paragraphs 1-231 above are repeated and re-alleged as if fully set forth herein.

10

233. This claim is asserted against Defendant McKay in his official capacity on

11 behalf of all members of the General Class who have been assigned a permanency goal of

12 family reunification (the “Reunification Subclass”).

13

234. Despite the fact that over 50% of children in state foster care have a

14 permanency goal of family reunification, the state child welfare agency is failing to

15 preserve family relationships after children are removed from their homes.

16

235. One of the principal ways that states preserve the family relationships of

17 children in foster care is to place siblings together when they are removed from their

18 homes, as required under federal and state law. In 2012, however, Arizona failed to place

19 siblings together in nearly 40% of cases when at least two siblings entered out-of-home

20 care. As of September 30, 2013, the state child welfare agency failed to place all siblings

21 together in 35% of cases, and failed to place at least two siblings together in 24% of cases.

22

236. Moreover, as alleged in paragraphs 215-217 above, the state child welfare

23 agency routinely places children in its care far from their home communities, knowingly

24 interfering with their ability to maintain connections with their families.

25

237. Another way that states preserve the family relationships of children in foster

26 care is to place such children, when appropriate, with one or both biological parents on a

27 “trial reunification” basis, while maintaining legal custody over the child. Arizona,

28 however, systematically fails to do so. As of September 30, 2014, only 0.21% of children

45

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 46 of 53

1 in state foster care custody (36 out of 16,990 children) were placed with their parents on a

2 trial reunification basis.

3

238. As of September 30, 2013, only 0.29% of children in out-of-home care (23 of

4 the 7,875 children) who had a permanency goal of family reunification were in a trial

5 reunification placement.

6

239. Similarly, only 1.6% of the children in care who exited to reunification during

7 federal fiscal year 2012 (60 out of 3,684) were in a trial home visit placement at the time

8 of exit. The national average was 37.5%. Moreover, only 0.5% of children in custody

9 during federal fiscal year 2012 (97 out of 21,267) had a most recent placement type of trial

10 home visit. The national average was 11.0%.

11

240. When children in state foster care custody are not placed with their families on

12 a trial reunification basis, DCS is under a legal duty to coordinate contact between these

13 children and their biological parents, as well as any siblings from whom the child may

14 have been separated when taken into custody. The state child welfare agency has

15 recognized that “there is a strong correlation between consistent and timely visitation and

16 positive outcomes for children who have been removed from their home. Regular parent-

17 child visitation, along with CPS Specialists’ visits with the child, are both associated with

18 achieving permanency and other indicators of child well-being.”

19

241. For 2012, however, the state child welfare agency reported that barely half

20 (51%) of children in out-of-home care whose cases were reviewed as part of the child

21 welfare agency’s PICR had visits with their parents and siblings at a frequency consistent

22 with the child’s safety and best interests. During calendar year 2013, a similarly low

23 percentage of children (56%) whose cases were reviewed in connection with the PICR had

24 adequate visits with parents and siblings.

25

242. The state child welfare agency’s poor performance in coordinating family

26 visits is no surprise given the long wait lists that children in foster care face before being

27 provided with transportation to and from, and supervision of, family visits. As of October

28 2013, there were 475 families waiting for such visitation services. Remarkably, the state

46

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 47 of 53

1 child welfare agency does not even track how long families have been waiting for those

2 services.

3

243. The state child welfare agency further impairs family relationships by

4 routinely failing to comply with its obligation to make monthly contact with the biological

5 parents of children in state foster care. During the six-month period from April 1, 2014

6 through September 30, 2014, 1,213 out of 2,528 (48.0% of) parents of children in foster

7 care with a case plan goal of reunification did not receive required visits from a state child

8 welfare caseworker.

9

244. Likewise, during the six-month period from October 1, 2013 through

10 March 31, 2014, 1,152 out of 2,496 (46.2% of) parents of children in foster care with a

11 case plan goal of reunification did not receive required visits from a state caseworker.

12

245. DCS recently reported that during 2013, caseworkers made concerted efforts to

13 have adequate contact with mothers in only 36% of cases reviewed, and with fathers in

14 only 18% of cases reviewed.

15

246. Not surprisingly, given the state child welfare agency’s failure to make

16 adequate contact with the biological parents of children in foster care, the agency also

17 systematically fails to involve those parents in their children’s case planning. During

18 2013, the state child welfare agency made concerted efforts to actively involve the child’s

19 mother in case planning in only slightly more than half (54%) of cases reviewed, and to

20 involve the father in little more than a third (36%) of cases. According to DCS, “[c]ase

21 plans are not consistently developed and reassessed within required timeframes.”

22

247. An all too predictable result of the state child welfare agency’s failure to

23 preserve family relationships is that far too few members of the Reunification Subclass are

24 reunified with their families. Moreover, when reunification does occur, it takes far too

25 long.

26

248. The amount of time that members of the Reunification Class spend in out-of-

27 home care before being reunified with their families has also increased over time.

28 According to data prepared for the state child welfare agency, the percentage of children

47

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 48 of 53

1 who reunified within 90 days decreased from 30% for children who entered state foster

2 care in 2008 to 18% for children who entered such care in 2012; the percentage of children

3 who reunified within six months fell from 35% for the 2008 entry group to 23% for the

4 2012 entry group; and the percentage of children who reunified within one year fell from

5 44% for the 2008 entry group to 37% for the 2012 entry group.

6

249. DCS is aware of its poor performance. According to a 2014 agency report,

7 “[c]ompared to prior years, children are now less likely to exit to reunification, and they

8 experience longer lengths of stay before reunifying.”

9

250. The foregoing DCS practices interfere with the right to family integrity held by

10 members of the Reunification Subclass, and subject them to emotional harm and an

11 unreasonable risk of emotional harm.

12

251. Defendant McKay directly and indirectly controls and is responsible for the

13 policies and practices of DCS. The foregoing policies and practices fail to satisfy DCS’s

14 affirmative duty to protect the welfare of the Reunification Subclass, which failure is a

15 substantial factor leading to, and a proximate cause of, the violation of the constitutionally

16 protected liberty interests, privacy interests and associational rights of all members of the

17 Reunification Subclass.

18

252. The foregoing policies and practices of DCS amount to a policy, pattern,

19 custom and/or practice that is outside the exercise of any professional judgment and

20 amounts to deliberate indifference to the Reunification Subclass’s constitutional rights.

21 As a result, all members of the Reunification Subclass are being deprived, or are at

22 unreasonable risk of being deprived, of their liberty interests, privacy interests and

23 associational rights conferred on them by the First, Ninth, and Fourteenth Amendment to

24 the United States Constitution not to be deprived of child-parent or child-sibling family

25 relationships.

26

253. The Reunification Subclass has thousands of members and is therefore

27 sufficiently numerous to make individual joinder impracticable.

28

48

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 49 of 53

1

254. Named Plaintiffs’ Fifth Cause of Action raises questions of fact and law that

2 are common to, and typical of, all members of the Reunification Subclass. Such common

3 questions of fact include:

4

a. Whether DCS engages in a practice of placing members of the

5

Reunification Subclass far from their home communities;

6

b. Whether DCS engages in a practice of failing to place members of the

7

Reunification Subclass in trial home reunification settings;

8

c. Whether DCS engages in a practice of failing to coordinate contact

9

between members of the Reunification Class and their biological families;

10

d. Whether DCS engages in a practice of failing to make required

11

monthly contact with the biological parents of members of the Reunification

12

Subclass; and

13

e. Whether DCS engages in a practice of failing to involve the biological

14

parents of members of the Reunification Subclass in the case planning of those

15

children.

16

255. Such common questions of law include whether DCS’s actions and inactions

17 violate the Reunification Subclass’s rights to family integrity, guaranteed by the First,

18 Ninth, and Fourteenth Amendments to the United States Constitution.

19

256. Named Plaintiffs will fairly and adequately protect the interests of the

20 Reunification Subclass they seek to represent.

21

257. Named Plaintiffs and the putative Reunification Subclass are represented by:

22

a. Attorneys employed by Perkins Coie LLP, an international law firm

23

with an office in Phoenix, Arizona, whose attorneys have extensive experience in

24

complex civil and public interest litigation, including class action litigation;

25

b. Attorneys employed by the Arizona Center for Law in the Public

26

Interest, a nonprofit legal organization based in Phoenix whose attorneys also have

27

extensive experience in complex civil and public interest litigation, including class

28

action litigation; and

49

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 50 of 53

1

c. Attorneys employed by Children’s Rights, Inc., a nonprofit legal

2

organization whose attorneys have substantial experience and expertise in child

3

welfare class actions nationally.

4

258. The attorneys and organizations listed above have investigated all claims in

5 this action and have committed sufficient resources to represent the Reunification

6 Subclass.

7

259. Each Named Plaintiff appears by a next friend, and each next friend is

8 sufficiently familiar with the facts of the child’s situation to fairly and adequately represent

9 the child’s interests in this litigation.

10

260. Defendant McKay has acted or failed to act on grounds generally applicable to

11 the Reunification Subclass, necessitating declaratory and injunctive relief. Plaintiffs’

12 counsel know of no conflicts between or among members of the Reunification Subclass.

13

PRAYER FOR RELIEF

14

WHEREFORE, the Named Plaintiffs respectfully request that this Court:

15

A. Assert jurisdiction over this action;

16

B. Order that this action be maintained as a class action pursuant to Rule 23(b)(2),

17 Fed. R. Civ. P.;

18

C. Declare unconstitutional and unlawful pursuant to Rule 57, Fed. R. Civ. P.:

19

1. DCS’s and DHS’s violation of plaintiffs’ substantive rights to be free

20

from harm and unreasonable risk of harm under the Due Process Clause of the

21

Fourteenth Amendment to the United States Constitution;

22

2. DCS’s violation of the Reunification Subclass’s rights to family

23

integrity under the First, Ninth, and Fourteenth Amendments to the United States

24

Constitution;

25

3. DCS’s, DHS’s and AHCCCS’s violation of plaintiffs’ rights under 42

26

U.S.C. §§ 1396a(a)(8), 1396a(a)(10)(A)(i)(I), 1396a(a)(43)(C), 1396d(a)(4)(B) and

27

1396d(r);

28

50

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 51 of 53

1

D. Permanently enjoin DCS, DHS and AHCCCS from subjecting plaintiffs to

2 practices that violate their rights;

3

E. Order appropriate remedial relief to ensure DCS’s, DHS’s and AHCCCS’s

4 future compliance with their legal obligations to plaintiffs, including, but not limited to, the

5 following:

6

1. Health Care Services Provided to Children in State Foster Care.

7

DCS and DHS shall establish and implement practices to ensure that all members of

8

the General Class receive the physical, mental and behavioral health services to

9

which they are entitled under the federal substantive Due Process Clause. Likewise,

10

DCS, DHS and AHCCCS shall establish and implement practices to ensure that all

11

members of the Medicaid Subclass receive the physical, mental and behavioral

12

health services to which they are entitled under the EPSDT provisions of the federal

13

Medicaid Act.

14

2. Avai l abi l i ty of Necessary Resources for the Pl acement of

15

Children. DCS shall establish and implement practices to ensure a minimally

16

adequate capacity and array of placements to meet the placement needs of the Non-

17

Kinship Class, including foster and HCTC homes.

18

3. Fami l y Contact and Vi si tati on. DCS shall establish and implement

19

practices providing for minimally adequate visitation between members of the

20

Reunification Subclass and their biological parents and siblings. DCS shall also

21

establish and implement practices to adequately provide for siblings in the

22

Reunification Subclass to be placed together in foster care.

23

4. Caseworker Investigations. DCS shall establish and implement

24

practices providing for minimally adequate investigations into reports that members

25

of the General Class have been abused or neglected.

26

5. Parent-Caseworker Contacts. DCS shall establish and implement

27

practices providing for minimally adequate caseworker visits with the biological

28

51

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 52 of 53

1

parents of members of the Reunification Subclass and for the involvement of such

2

parents in the case planning of members of the Reunification Subclass.

3

6. Monitoring/Enforcement. The provisions of the Court order entered

4

pursuant to Fed. R. Civ. P. 65(d) shall be monitored by a neutral expert monitor

5

appointed by the Court. In addition, the Court shall have continuing jurisdiction to

6

oversee compliance with that order;

7

F. Award to the Named Plaintiffs the reasonable costs and expenses incurred in

8 the prosecution of this action, including reasonable attorneys’ fees, pursuant to 28 U.S.C.

9 § 1920 and 42 U.S.C. § 1988, and Fed. R. of Civ. P. 23(e) and (h); and

10

G. Grant such other and further equitable relief as the Court deems just,

11 necessary and proper to protect Named Plaintiffs, the General Class, the Medicaid

12 Subclass, the Non-Kinship Subclass and the Reunification Subclass from further harm and

13 unreasonable risk of harm by DCS, DHS and AHCCCS.

14

15

Respectfully submitted this 8th day of June, 2015.

16

CHILDREN’S RIGHTS, INC.

17

By s/ William Kapell_____________

18

William Kapell

Julia L. Davis

19

Rachel B. Nili

20

Adriana T. Luciano

330 Seventh Avenue, Fourth Floor

21

New York, New York 10001

22

PERKINS COIE LLP

23

Shane Swindle

24

2901 N. Central Avenue, Suite 2000

Phoenix, Arizona 85012-2788

25

ARIZONA CENTER FOR LAW IN THE

26

PUBLIC INTEREST

27

Anne C. Ronan

28

Timothy M. Hogan

52

Case 2:15-cv-00185-ROS Document 37 Filed 06/08/15 Page 53 of 53

1

514 West Roosevelt Street

Phoenix, Arizona 85003 2

3

Attorneys for Plaintiffs

4

5

6

7 CERTIFICATE OF SERVICE
8

9

I hereby certify that on June 8, 2015, I electronically transmitted the attached

10 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a

11 Notice of Electronic Filing to the following CM/ECF registrants:

12

David Daniel Weinzweig

13

david.wei nzweig@azag.go v

14

Robert Lawrence Ellman

robert.ellman@azag.go v

15

OFFICE OF THE ATTORNEY GENERAL

1275 West Washington Street

16

Phoenix, Arizona 85007-2997

17

Daniel P. Struck

18

dstruck@swlfirm.com

19

Kathleen L. Wieneke

kwieneke@swlfirm.com

20

STRUCK WIENEKE & LOVE PLC

3100 West Ray Road, Suite 300

21

Chandler, Arizona 85226

22 Logan T. Johnston

23

ltjohnston@live.com

24

JOHNSTON LAW OFFICES, P.L.C. 1402 E. Mescal Street

25

Phoenix, Arizona 85020

Telephone: (602) 452-0615 26

27

/s/ William Kapell

.

28

53

 
 Case 2:15-cv-00185-ROS Document 363 Filed 09/30/17 Page 1 of 23

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Margaret Tinsley, et al.,

No. CV-15-00185-PHX-ROS

10

Plaintiffs,

ORDER

11 v.

12 Charles Flanagan, et al.,

13

Defendants.

14

15

Named Plaintiffs B.K., B.T., A.C.-B., M.C.-B., D.C.-B., and J.M. (“Named

16 Plaintiffs”), minors in the custody of the Arizona foster care system, filed a motion to

17 certify this matter as a class action with subclasses under Rule 23(b)(2). (Doc. 234.)

18 Defendants Gregory McKay and Thomas Betlach opposed. (Docs. 245, 248.) And

19 Named Plaintiffs replied. (Doc. 254.) For the following reasons, the Court will grant the

20 motion for class certification.

21 I. BACKGROUND

22

Named Plaintiffs filed this civil rights class action on behalf of children in the

23 Arizona foster care custody, claiming the Arizona foster care system violates the U.S.

24 Constitution and the federal Medicaid Act. (Doc. 37.) They allege Arizona’s failure to

25 remedy problems within its system exposed them and all other foster children to harm or

26 unreasonable risk of harm while in the state’s care, in violation of their federal rights.

27 (Id.)

28

A. Role of Child Welfare Agencies

Case 2:15-cv-00185-ROS Document 363 Filed 09/30/17 Page 2 of 23

1

“The primary purpose of [Arizona Department of Child Safety (“DSC”)] is to

2 protect children.” A.R.S. § 8-451(B). In Arizona, DSC has significant control over

3 foster children. It is charged with placing children in safe living environments and

4 coordinating with the Arizona Health Care Cost Containment System (“AHCCCS”) and

5 others to provide children with court-ordered healthcare and other services aimed at

6 promoting the safety and well-being of all children. See A.R.S. §§ 8-451(B)(2), (4); 8-

7 457; 8-512. If a juvenile court assigns custody of a removed child to DCS, the agency

8 may subsequently place the child with a parent or relative, in a licensed foster home,

9 therapeutic foster care, group home, or a residential treatment facility. A.R.S. § 8-

10 514(A), (B).

11

DCS and its subdivisions determine the eligibility and licensing procedures for

12 foster parents and foster homes, and maintain responsibility for providing training and

13 supervision of such homes. A.R.S. §§ 8-503(A)(4)(b)-(h); 8-509; 8-516. DCS is

14 responsible for investigating all allegations and risks of harm involving children,

15 including those in foster homes. See A.R.S. §§ 8-503(A)(4)(i); 8-453(A)(19); 8-456.

16 And DSC may deny an application, suspend, or revoke a foster parent’s license for

17 violations of state statutes governing child welfare. A.R.S. § 8-506.

18

“If a child [is] removed from the child’s home and placed in out-of-home

19 placement, guardianship or adoptive placement, the [DCS must] make reasonable efforts

20 to place that child with the child’s siblings or, if that is not possible, to maintain frequent

21 visitation or other ongoing contact between the child and the child’s siblings unless a

22 court determines . . . [either] would be contrary to the child’s or a sibling’s safety or well-

23 being.” A.R.S. § 8-513(D). A child in foster care also has a “right to maintain contact

24 with friends and other relatives unless the court has determined that contact is not in the

25 child’s best interests.” A.R.S. § 8-513(C).

26

For all children in DCS custody, DCS collaborates with AHCCCS and others to

27 “provide comprehensive medical and dental care,” A.R.S. § 8-512(A), and to “determine

28 the most efficient and effective way to provide comprehensive medical, dental and

- 2 -

Case 2:15-cv-00185-ROS Document 363 Filed 09/30/17 Page 3 of 23

1 behavioral health services, including behavioral health diagnostic, evaluation and

2 treatment services for children who are provided [comprehensive medical and dental]

3 care [].” A.R.S. § 8-512(B).

4

B. Second Amended Complaint (“SAC”)

5

The 53-page SAC contains factual allegations concerning the existence of

6 uniform, statewide policies and practices in the foster care system and recounts in detail

7 the experiences of several Named Plaintiffs who range from three to fourteen years of age

8 in foster care custody. (Doc. 37.) The SAC details how the Named Plaintiffs allegedly

9 did not receive necessary physical and/or mental healthcare, were separated from siblings

10 who were also in the foster care system, experienced frequent relocations and school

11 transfers, and did not receive early and periodic screening, diagnostic, and treatment.

12 (Id.) Many allegedly suffered ill-prepared, neglectful, and abusive foster parents and

13 inattentive caseworkers. (Id.)

14

Named Plaintiffs claim their experiences were caused by a number of “structural

15 and operational failures” which expose all children in the foster care system to a

16 substantial risk of harm that “continue[s] to plague the state’s child welfare system.”

17 (Doc. 37 at 4.) These failures include (1) severe shortage in physical, mental, and

18 behavioral health services available to children in foster care; (2) widespread failure to

19 conduct timely investigations of reports that children have been maltreated while in foster

20 care custody; (3) severe shortage of family foster homes; and (4) widespread failure to

21 engage in basic child welfare practices for maintaining family relationships. (Id.)

22

Two Defendants remain in this matter: (1) Director of the DSC, Gregory McKay,

23 who is responsible for managing the state’s child welfare system; and (2) Thomas

24 Betlach, Director of the AHCCCS, which administers and supervises the state’s Medicaid

25 program. (See Docs. 37, 188.) Named Plaintiffs maintain these individuals are

26 responsible for administering the foster care system and they have been aware of but have

27 failed to address the problems outlined in the SAC. (Doc. 37 at 4-5.) Named Plaintiffs

28 seek declaratory and injunctive relief for alleged violations of their substantive due

- 3 -

Case 2:15-cv-00185-ROS Document 363 Filed 09/30/17 Page 4 of 23

1 process rights under the Fourteenth Amendment and their rights under the Medicaid

2 statute. (Id. at 24-45.)

3

C. Named Plaintiffs’ Motion

4

Named Plaintiffs seek to certify one general class and two subclasses. (Doc. 234

5 at 11-12.)1 First, Named Plaintiffs seek to assert constitutional claims on behalf of a

6 general class of children who are or will be in the legal custody of DCS due to a report or

7 suspicion of abuse or neglect (“General Class”). (Id. at 11.) Second, Named Plaintiffs

8 seek to assert constitutional claims on behalf of a subclass of all children in the General

9 Class who are not placed in the care of an adult relative or person who has a significant

10 relationship with the child (“Non-Kinship Subclass”). (Id.) Third, Named Plaintiffs seek

11 to assert a statutory claim on behalf of a subclass comprised of all members of the

12 General Class who are entitled to early and periodic screening, diagnostic, and treatment

13 (“EPSDT”) services under the federal Medicaid statute (“Medicaid Subclass”). (Id.)

14 This subclass alleges that AHCCCS, the agency responsible for administering the

15 Medicaid program in Arizona, and DCS, which provides physical and dental care

16 services for Medicaid eligible children in foster care through an interagency agreement

17 with AHCCCS, violated the Medicaid statute. (Id. at 11-12.) Moreover, Named

18 Plaintiffs seek to appoint their counsel as Class Counsel. (Id. at 44.) In support of their

19 motion to certify, Named Plaintiffs submitted nearly ninety exhibits, including expert

20 reports by multiple specialists in child welfare systems and health care services, excerpts

21 of deposition transcripts, internal DSC documents and progress assessments, thousands of

22 pages of documents obtained through discovery, and Named Plaintiffs’ sealed medical

23 files. (Docs. 238, 286.)

24 II. ANALYSIS

25

Named Plaintiffs’ certification request is governed by Rule 23 of the Federal Rules

26

27

1 Named Plaintiffs alleged five causes of action in this lawsuit, and they have since

28

voluntarily dismissed the fifth cause of action. (Doc. 217.) For the purposes of this motion, Plaintiffs only seek to certify a general class and two subclasses with regard to

the remaining four.

- 4 -

Case 2:15-cv-00185-ROS Document 363 Filed 09/30/17 Page 5 of 23

1 of Civil Procedure. See Fed. R. Civ. P. 23. Class certification is governed by Federal

2 Rule of Civil Procedure 23. Plaintiffs bear the burden of demonstrating they meet Rule

3 23’s requirements. Zinser v. Accufix Research Institute, Inc., 253 F.3d 1180, 1186 (9th

4 Cir. 2001). District courts have broad discretion in determining whether to certify a

5 class. Id.

6

Under Rule 23(a), a party seeking certification of a class or subclass must satisfy

7 four prerequisite requirements: (1) numerosity, (2) commonality, (3) typicality, and (4)

8 adequacy of representation. Fed. R. Civ. P. 23(a)(1)-(4). If they satisfy the initial

9 requirements, Named Plaintiffs’ proposed class and subclasses must also satisfy the

10 requirements of one of the subsections of Rule 23(b), “which defines three different types

11 of classes.” See Leyva v. Medline Ind., Inc., 716 F.3d 510, 512 (9th Cir. 2013). Here,

12 Named Plaintiffs seek to certify their proposed class and subclasses pursuant to Rule

13 23(b)(2), which requires that “the party opposing the class has acted or refused to act on

14 grounds that apply generally to the class, so that final injunctive relief or corresponding

15 declaratory relief is appropriate respecting the class as a whole.” See Fed. R. Civ. P.

16 23(b)(2).

17

To determine whether a party has met the requirements of Rule 23, the Supreme

18 Court in Wal-Mart Stores, Inc. v. Dukes (“Wal-Mart”) explained “Rule 23 does not set

19 forth a mere pleading standard.” 564 U.S. 338, 350 (2011). A plaintiff seeking class

20 certification must “affirmatively demonstrate his compliance with [] Rule [23]—that is,

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

22 questions of law or fact, etc.” Id. (emphasis in original). “Similarly, a party must

23 affirmatively prove that he complies with one of the three subsections of Rule 23(b).”

24 Parsons v. Ryan, 754 F.3d 657, 674 (9th Cir. 2014).

25

Certification is proper only if “the trial court is satisfied, after a rigorous analysis,

26 that the prerequisites of Rule 23(a) have been satisfied.” Wal-Mart, 564 U.S. at 350-51.

27 “Although we have cautioned that a court’s class-certification analysis must be ‘rigorous’

28 and may ‘entail some overlap with the merits of the plaintiff’s underlying claim . . . ,

- 5 -

Case 2:15-cv-00185-ROS Document 363 Filed 09/30/17 Page 6 of 23

1 Rule 23 grants courts no license to engage in free-ranging merits inquiries at the

2 certification stage.” Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, 568

3 U.S. 455, 465-66 (2013) (quoting Wal-Mart, 564 U.S. at 351). As the Supreme Court in

4 Amgen explained, it “totally misapprehend[s] the essential point” of this case law to

5 suggest that certification is improper unless plaintiffs are able to prove that the common

6 question “will be answered in their favor.” See id. at 468.

7

McKay and Betlach offer a variety of arguments against certification. McKay

8 argues Named Plaintiffs do not have standing, Named Plaintiffs fail to satisfy the

9 commonality and typicality requirements under Rule 23(a), and Named Plaintiffs’ request

10 is an inappropriate injunctive relief under Rule 23(b)(2). (Doc. 245 at 3.) Betlach joins

11 in the challenge over whether Named Plaintiffs have standing. (Doc. 248 at 3.)

12 However, Betlach also argues the lawsuit is moot and opposes Named Plaintiffs’ motion

13 to certify the Medicaid Subclass in this case for failure to meet the commonality,

14 typicality, and Rule 23(b)(2) requirements. (Doc. 248 at 10-16.) The Court will address

15 each argument in turn.

16

a. Jurisdictional Issues

17

1. Mootness

18

Betlach2 argues that because four of the named Named Plaintiffs (M.C-B, D.C-B,

19 A.C-B, and J.M) have been adopted, they are no longer in foster care custody and this 20 lawsuit should be dismissed as moot.3 (Doc. 245 at 20; Doc. 248 at 14.) This argument

21

22

2 McKay’s opposition brief also implicitly raises a mootness argument. (Doc. 245 at 7, 20.) McKay attests that because the state is already making plans to eliminate the

23

substantial risk of serious harm, there is no longer an ongoing harm to be enjoined and “there is no need to order [the state of] Arizona to improve its foster-care system.” (Id. at

24

20.) Even though McKay cited to statistics suggesting that the state of Arizona’s foster care system has improved since the filing of the lawsuit, these statistics do not establish

25

Defendants were not, are not, and will not be in violation of Plaintiffs’ federal rights. Moreover, the merits of this lawsuit involve whether DSC’s policies and practices

26

constitute ongoing constitutional and statutory violations. Thus, DSC’s unilateral allegation that DSC is well on its way to fixing each alleged constitutional and statutory

27 issue does not render Plaintiffs’ claims moot.

28

3 Betlach raised his mootness and standing arguments in the context of the typicality issue. (Doc. 248 at 13.) The Court will engage in a discussion of typicality

below, but because standing and mootness are threshold jurisdictional issues and also

- 6 -

Case 2:15-cv-00185-ROS Document 363 Filed 09/30/17 Page 7 of 23

1 is not persuasive.

2

Although four of the Named Plaintiffs have been adopted, there are still two

3 Named Plaintiffs who can represent the class, B.T. and B.K. Thus, the mootness

4 argument fails at the outset. But even if all Named Plaintiffs permanently leave the foster

5 care system, the “capable of repetition, yet evading review” exception to the mootness

6 doctrine would apply. See Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1090-92 (9th Cir.

7 2011). Children in the foster care system are inherently transitory. A child could be

8 adopted, a child could find a permanent guardian, and a child could also return to the

9 foster care system if the adoption or guardianship does not work out. Any of these could

10 happen before a civil rights class action reaches judgment and because being part of the

11 foster care system is a significant fact in this litigation, the “capable of repetition, yet

12 evading review” exception to the mootness doctrine applies. Thus, the Court will not

13 dismiss this lawsuit based on mootness.

14

2. Standing

15

Both McKay and Betlach challenge Named Plaintiffs’ standing. (Doc. 245 at 3-4;

16 Doc. 248 at 12-13.) McKay alleges four of the Named Plaintiffs (M.C.-B., D.C.-B.,

17 A.C.-B., and J.M.) have been adopted, and he argues B.T. and B.K. have not shown

18 “individualized harm.” (Doc. 245 at 4.) In opposing the certification of the Medicaid

19 Subclass, Betlach also argues it is not enough to speculate that each plaintiff is “at risk”

20 of a violation when Named Plaintiffs have failed to offer any evidence that any of the

21 Named Plaintiffs actually suffered an EPSDT violation. (Doc. 248 at 14.)

22

To establish standing, a plaintiff must show he “(1) suffered an injury in fact, (2)

23 that is fairly traceable to the alleged conduct of the defendant, and (3) that is likely to be

24 redressed by a favorable judicial decision.” Spokeo v. Robbins, 136 S. Ct. 1540, 1547

25 (2016). “To establish injury in fact, a plaintiff must show that he or she suffered an

26 invasion of a legally protected interest that is concrete and particularized and actual or

27 imminent, not conjectural or hypothetical.” Id. at 1548. “For an injury to be

28 distinct from typicality, the Court will discuss the jurisdictional arguments first.

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Case 2:15-cv-00185-ROS Document 363 Filed 09/30/17 Page 8 of 23

1 ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.’” Id.

2 (internal citation omitted). “A ‘concrete’ injury must be ‘de facto’; that is, it must

3 actually exist.” Id. “Although tangible injuries are perhaps easier to recognize, . . .

4 intangible injuries can nevertheless be concrete.” Id. at 1549 (internal citation omitted).

5

First, McKay’s first standing argument is based on the assertion that four of the

6 Named Plaintiffs have been adopted. (Doc. 245 at 4.) Although other circuit courts have

7 found that plaintiffs not in foster care custody lack standing to pursue constitutional

8 claims, see, e.g., 31 Foster Children v. Bush, 329 F.3d 1255, 1267 (11th Cir. 2003), this

9 is not a sufficient basis for dismissing the entire lawsuit. Standing exists if at least one

10 named plaintiff meets the requirements. Ellis v. Costco Wholesale Corp., 657 F.3d 970,

11 979 (9th Cir. 2011). Here, even if four of the six Named Plaintiffs have been adopted

12 since the lawsuit has been filed, two Named Plaintiffs still remain.

13

Second, without identifying specifics to support his argument, McKay

14 conclusorily argues the remaining two Named Plaintiffs have not shown “individualized

15 harm or that they have not received the services for any of the putative classes seeking

16 certification.” (Doc. 245 at 4.) However, McKay’s argument overlooks the seven pages

17 in the SAC dedicated to outlining the injuries B.T. and B.K. personally suffered as well

18 as the many exhibits submitted in support of Named Plaintiffs’ motion which

19 demonstrate the personal and individual harm they suffered.

20

For example, B.K. is a twelve-year-old girl who has spent more than half of her

21 life in state foster care. (Doc. 37 at 6.) She was removed from her mother’s home and

22 placed in state foster care custody multiple times. (Id.) When B.K. came into state care

23 for a third time, B.K. had bruises on her head from abuse by her mother, and she was

24 diagnosed with posttraumatic stress disorder, a mood disorder, psychosis, and anxiety.

25 (Id.) The state separated B.K. from all of her siblings and placed her in a group home on

26 “emergency shelter” status. (Id.) Although this was supposed to be a short-term

27 placement, B.K. remained in a group home for more than two years. (Id. at 6-7.) While

28 in state custody at a group home, the state child welfare agency failed to do the

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Case 2:15-cv-00185-ROS Document 363 Filed 09/30/17 Page 9 of 23

1 following: (1) ensure she obtained glasses that she needed to see properly; (2) discover

2 she was walking with a limp; (3) make sure she received the shoes she needed; (4) make

3 sure she got to see a dentist for a toothache she had for multiple months; (5) ensure she

4 received necessary mental health services especially when she said she heard voices were

5 telling her to hurt people or that someone would die; (6) ensure she would be able to get

6 to her health appointments; and (7) ensure she received undisrupted services. (Id. at 7-8.)

7 These facts indicate B.K. personally suffered harm from not receiving a variety of health

8 care services, from being placed in a group home away from her siblings, and from not

9 receiving the EPDST services in a prompt manner. Thus, B.K. has shown she suffered

10 individualized and personal harm sufficient to establish standing for the General Class,

11 the Non-Kinship Subclass, and the Medicaid Subclass.

12

Similarly, B.T. is a sixteen-year-old boy who has spent half his life in Arizona’s

13 foster care custody. (Id. at 11.) B. T. had been shuffled through multiple institutional

14 settings, separated from his sibling and denied sibling visitation, and deprived of

15 necessary mental health care. (Id. at 11-15.) B.T. also attempted suicide multiple times.

16 (Id. at 15.) A month after being taken into state foster care, B.T. had a psychological

17 evaluation indicating he needed therapeutic treatment, but he had to wait six months

18 before his first therapy session. (Id. at 11.) A few months after being placed in state

19 foster care with one of his brothers, B.T. was removed from the group home, separated

20 from his brother, and placed into a kinship foster home with a paternal aunt. (Id. at 12.)

21 He spent six months in his kinship foster home with a paternal aunt before any visits with

22 his older brothers. (Id.)

23

Over the course of a decade, B.T. was denied health care services, separated from

24 his siblings, and denied EPDST services numerous times. In August 2006, B.T.’s aunt

25 told the state child welfare agency B.T. was not receiving the counseling he needed and

26 requested an updated psychological evaluation. (Id.) But none was conducted. (Id.)

27 When his aunt told the agency that she could no longer care for B.T. because they were

28 not providing him with the mental health evaluation and services he needed, the agency

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Case 2:15-cv-00185-ROS Document 363 Filed 09/30/17 Page 10 of 23

1 moved B.T. to an emergency foster home rather than providing those services. (Id.)

2

In October 2006, B.T. was temporarily placed with a foster family and he

3 threatened to kill himself and his temporary foster family. (Id.) Yet, he still did not

4 receive regular therapy. (Id.) Instead the agency only responded by removing the six-

5 year-old B.T. from the home and placing him in a group home. (Id.) The state child

6 welfare agency received reports that B.T. was struggling emotionally in the group home.

7 (Id.) Even after another psychological evaluation was requested for B.T., the state did

8 not schedule it until months later and did not provide him with any counseling in the

9 interim. (Id.) An evaluation indicated he needed individual therapy and prescribed

10 psychotropic medication. (Id.) A psycho-educational evaluation was recommended but

11 never conducted. (Id.)

12

Just a month after B.T. was placed in a pre-adoptive home with one of his brothers

13 in January 2008, the family reported to the state B.T.’s need for more intensive

14 counseling and a more suitable counselor. (Id.) B.T. and his brother were adopted in

15 August 2008, but taken back to state foster care in March 2011. (Id. at 13.) Shortly after

16 this happened, B.T. reported his adoptive father had beat him with a belt, and the state

17 immediately separated B.T. from his brother, placing the two boys in different non-

18 therapeutic group homes. (Id.) The group home reported B.T. needed counseling, but he

19 did not receive any counseling while at this group home. (Id.) Within a month of being

20 back in the state’s foster care system, B.T. was hospitalized in an acute care mental health

21 facility for two weeks, and the state returned B.T. back to the group home after the

22 hospitalization. (Id.) B.T.’s mental health then worsened, he was approved for a

23 therapeutic Home Care Training to Home Care Client (“HCTC”) placement, but one was

24 not available for him. (Id.) B.T. then ran away, spent a night at a juvenile detention

25 center, and then moved to a new group home hours away from his prior placement

26 because his prior group home had already filled his bed with another child. (Id.)

27

In July 2011, B.T. was moved to a HCTC home, but did not receive trauma

28 therapy and did not receive a psycho-sexual evaluation until October 2011. (Id.) When

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Case 2:15-cv-00185-ROS Document 363 Filed 09/30/17 Page 11 of 23

1 the state finally began looking for a HCTC placement for B.T. six months later, the state

2 was unable to find one and moved him to a non-therapeutic group home/shelter in August

3 2012. (Id.) He threatened to kill himself three times while in this non-therapeutic

4 congregate care placement. (Id. at 14.) When the shelter reported to the state that B.T.

5 needed a higher level of care in November 2012, the state moved him the following

6 month to a therapeutic group home. (Id.) But when B.T.’s suicidal thoughts continued,

7 the state moved him back to the earlier non-therapeutic group home/shelter in January

8 2013. (Id.)

9

In June 2013, B.T. had another incident where he grabbed the steering wheel of a

10 van driven by group home staff and said “I want us all to die.” (Id.) On that same day,

11 the state’s therapeutic team overseeing his health services reported the following: “with a

12 few exceptions, B.T. is doing well over the last 2 weeks.” (Id.) After this suicide

13 attempt, B.T.’s psychiatrist recommended he be placed in a residential treatment facility.

14 (Id.) While the request was pending, the state moved him to the following: (1) a

15 therapeutic group home far away, (2) another therapeutic group home in September 2013,

16 (3) a non-therapeutic family foster home in March 2014, (4) a non-therapeutic foster

17 home in July 2014, (5) a shelter in October 2014, and (6) another therapeutic group home

18 even though he received approval for a therapeutic HCTC placement in November 2014.

19 (Id. at 14-15.) Up until September 2014, he had one therapy session, and he threatened to

20 commit suicide again in December 2014. (Id.)

21

These facts indicate B.T. personally suffered harm from not receiving a variety of

22 health care services (including physical and mental health services), from being placed in

23 a group home away from his siblings, and from not receiving the EPDST services in a

24 prompt manner. Thus, B.T. has shown he suffered sufficient personal harm to establish

25 standing for the General Class, the Non-Kinship Subclass, and the Medicaid Subclass.

26

Third, Betlach alleges B.T. and B.K. have not alleged harm as a result of being

27 deprived of their rights under the Medicaid statute. (Doc. 248 at 14.) A district court

28 “must determine that at least one named class representative has Article III standing to

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Case 2:15-cv-00185-ROS Document 363 Filed 09/30/17 Page 12 of 23

1 raise each class subclaim.” Prado-Steinman ex rel. Prado v. Bush, 221 F.3d 1266, 1279.

2 However, as discussed above, B.T. and B.K. presented evidence they personally suffered

3 harm from not receiving the necessary health care diagnostic services and treatment

4 necessary to correct physical and mental conditions in a prompt manner. Thus, B.T. and

5 B.K. have standing to challenge whether the DSC’s and the AHCCCS’s policies and

6 practices violate the Medicaid statute, and the Court will not dismiss this case based on

7 standing.

8

b. Class Certification

9

Defendants McKay and Betlach do not dispute that Named Plaintiffs meet the

10 requirements of numerosity and adequacy of representation (see Doc. 245 at 1; Doc.

11 248), and the Court also agrees Named Plaintiffs have satisfied their burdens with regard

12 to these prerequisites. Defendants argue Named Plaintiffs have not satisfied the

13 commonality and typicality prerequisites as well as the requirements under Rule 23(b)(2).

14 The Court will analyze each but will focus its analysis on the prerequisites in dispute.

15

1. Numerosity under Rule 23(a)(1)

16

Rule 23(a)(1) requires the proposed class be “so numerous that joinder of all

17 members is impracticable.” Fed. R. Civ. P. 23(a). There is no specific number that

18 satisfies the numerosity requirement. Gen. Tel. Co. of the Nw., Inc. v. Equal Emp’t

19 Opportunity Comm’n, 446 U.S. 318, 330 (1980). Here, Named Plaintiffs have produced

20 evidence indicating that in 2016 there were over 18,000 children in the General Class,

21 over 10,000 children in the Non-Kinship Subclass, and over 17,000 children in the

22 Medicaid Subclass. (Doc. 238-1, Ex. 31 at DSC-00132510, Ex. 32 at AH 0000673, Ex.

23 33 at DSC-00121026.) Defendants do not contest this issue, and the Court finds this

24 prerequisite has been satisfied.

25

2. Commonality under Rule 23(b)(2)

26

Rule 23(a)(2) requires there be “questions of law or fact common to the class.”

27 Fed. R. Civ. P. 23(a)(2). This provision requires plaintiffs “demonstrate that the class

28 members ‘have suffered the same injury,’” not merely violations of “the same provision

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Case 2:15-cv-00185-ROS Document 363 Filed 09/30/17 Page 13 of 23

1 of law.” Wal-Mart, 564 U.S. at 350 (internal citation omitted). Commonality is satisfied

2 where plaintiff’s claims depend on a “common contention” that is “capable of classwide

3 solution—which means that determination of its truth or falsity will resolve an issue that

4 is central to the validity of each one of the claims in one stroke.” Id. “What matters to

5 class certification . . . is not the raising of common ‘questions’—even in droves—but,

6 rather the capacity of a classwide proceeding to generate common answers apt to drive

7 the resolution of the litigation.” Id. (internal citation omitted).

8

Post-Wal-Mart, the Ninth Circuit recognized “Plaintiffs need not show that every

9 question in the case, or even a preponderance of questions, is capable of classwide

10 resolution.” Wang v. Chinese Daily News, Inc., 737 F.3d 538, 544 (9th Cir. 2013).

11 “Where the circumstances of each particular class member vary but retain a common core

12 of factual or legal issues with the rest of class, commonality exists.” Evon v. Law Offices

13 of Sidney Mickell, 688 F.3d 1015, 1029 (9th Cir. 2012) (internal citation omitted).

14 Specifically, members of the proposed class need not share every single fact in common

15 but “common questions may center on ‘shared legal issues with divergent factual

16 predicates or a common core of salient facts coupled with disparate legal remedies.’”

17 Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 1165 (9th Cir. 2014) (internal citation

18 omitted). “To assess whether the putative class members share a common question, . . .

19 we must identify the elements of the class members’[] case-in-chief.” Parsons, 754 F.3d

20 at 676 (internal citation omitted).

21

a. Claims at Issue for Class Certification

22

In the Named Plaintiffs’ case, the state functions as the de facto parent of a child

23 in foster care. Tamas v. Dep’t of Social & Health Servs., 630 F.3d 833, 843 (9th Cir.

24 2010); see also Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791, 795 (11th Cir. 1987) (en

25 banc) (“The state’s action in assuming the responsibility of finding and keeping the

26 [foster] child in a safe environment placed an obligation on the state to insure the

27 continuing safety of that environment.”) Here, Named Plaintiffs seek to pursue three

28 constitutional substantive due process claims through the General Class and the Non-

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Case 2:15-cv-00185-ROS Document 363 Filed 09/30/17 Page 14 of 23

1 Kinship Subclass. (Doc. 234 at 11.) Specifically, DSC’s practices deprived the General

2 Class of their right to adequate and timely physical, dental, and mental health care (Cause

3 of Action I) and to timely investigations into allegations of abuse and neglect while in the

4 state’s custody (Cause of Action III). (Id.) And DSC’s practices deprived the General

5 Class of their right to placement in a living environment that protects their physical,

6 mental, and emotional safety, and well-being (Cause of Action IV). (Id.) Because these

7 claims arise as constitutional substantive due process claims, the Court will discuss these

8 claims together when analyzing the commonality prerequisite. Further, Named Plaintiffs

9 also pursue a statutory claim through the Medicaid Subclass, alleging the practices of the

10 DSC and the AHCCCS deprived the Medicaid Subclass of early and periodic screening,

11 diagnostic, and treatment services required under the federal Medicaid statute. (Id.)

12

b. Constitutional Substantive Due Process Claims

13

First, to establish a due process claim, state officials must act with such deliberate

14 indifference to the liberty interest that their actions “shock the conscience.” Tamas, 630

15 F.3d at 844. Conduct that “shocks the conscience” is “deliberate indifference to a known

16 or so obvious as to imply knowledge of danger.” Id. (internal citation omitted). “[T]he

17 deliberate indifference standard, as applied to foster children, requires a showing of an

18 objectively substantial risk of harm and a showing that the officials were subjectively

19 aware of facts from which an inference could be drawn that a substantial risk of serious

20 harm existed and that either the official actually drew that inference or that a reasonable

21 official would have been compelled to draw that inference.” Id. at 845 (concluding the

22 “analysis [in the foster care context] is identical to the subjective deliberate indifference

23 component [ ] articulated in prisoner cases and includes by implication the objective

24 component requiring the existence of a substantial risk of serious harm”).

25

Here, Named Plaintiffs identified several state-wide practices affecting the

26 proposed General Class: failure to provide timely access to health care (including

27 comprehensive evaluations, timely annual visits, semi-annual preventative dental health

28 care, adequate health assessments, and complete immunizations); failure to coordinate the

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Case 2:15-cv-00185-ROS Document 363 Filed 09/30/17 Page 15 of 23

1 delivery of physical and dental care services; ineffective coordination and monitoring of

2 physical and dental services by DCS; DCS’s overuse of congregate care for children with

3 unmet mental health needs; excessive DCS caseworker caseloads; failure to initiate

4 investigations in a timely manner after reports of abuse; failure to document a timely

5 “safety assessment” after initiating an investigation; failure to meet deadline for closing

6 investigations; and delays in important investigative steps. (Doc. 234 at 26-27.)

7

Based on these policies and practices, Named Plaintiffs assert that common

8 questions capable of resolution on a classwide basis involve questions including whether

9 DCS’s practices subject the General Class to a substantial risk of harm in violation of

10 Fourteenth Amendment rights by (1) failing to provide physical and dental health care,

11 (2) failing to provide mental and behavioral health care, or (3) failing to conduct timely

12 investigations into reports when children have been abused or neglected while in foster

13 care. (Doc. 234 at 17.)

14

Named Plaintiffs also identified the following practices affecting the Non-Kinship

15 Subclass: DCS’s excessive use of emergency shelters and group homes, unnecessary

16 separation of siblings, and placement of children far from home. (Doc. 234 at 31-35;

17 Doc. 254 at 15.) Based on these practices, Named Plaintiffs contend there are common

18 questions regarding whether DSC’s practices (1) subject Non-Kinship Subclass members

19 to a substantial risk of harm in violation of substantive due process; (2) fail to maintain an

20 adequate number of foster home placements; (3) place children in appropriate settings

21 (e.g., shelters or congregate placements) resulting in physical and psychological harm; (4)

22 improperly separates children from siblings; and (5) place children far from home

23 communities making visits from biological family difficult. (Doc. 234 at 32.)

24

McKay and Betlach argue that commonality is not met in this action because “the

25 diversity of needs of children in care require[s] an individual determination.” (Doc. 245

26 at 4; see also Doc. 248 at 11.) While one child’s medical diagnosis or placement

27 assessment may differ from the next, the deliberate indifference standard involves Named

28 Plaintiffs showing an objective substantial risk of harm based on the state’s policies and

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Case 2:15-cv-00185-ROS Document 363 Filed 09/30/17 Page 16 of 23

1 practices and the officials’ subjective awareness of their risk. Specifically, central to

2 each claim is whether children in state foster care custody are exposed to statewide

3 practices governing overall conditions of health care services or placement decisions

4 resulting in a substantial risk of serious future harm to which the defendants were

5 deliberately indifferent. Here, Named Plaintiffs correctly identified that the Ninth

6 Circuit’s opinion in Parsons is instructive for the commonality analysis.

7

In Parsons, the Ninth Circuit upheld a district court’s order granting class

8 certification where plaintiffs sued the Arizona Department of Corrections (“ADC”) for

9 mass deficiencies and outlined a number of specific, uniform, statewide policies and

10 practices that exposed all ADC inmates to a substantial risk of harm. Parsons, 754 F.3d

11 at 662. The Ninth Circuit found all ADC inmates were exposed to “specified statewide

12 ADC policies and practices that govern the overall conditions of health care services and

13 confinement,” and this exposure resulted in “a substantial risk of serious future harm to

14 which the defendants were deliberately indifferent.” Id. at 678. The Ninth Circuit also

15 found the identified practices were “the ‘glue’ that h[e]ld[] together the putative class . . .

16 either each of the policies and practices is unlawful as to every inmate or it is not.” Id.

17

Similar to Parsons, the putative class and subclass members here also set forth

18 numerous common contentions whose truth or falsity can be determined in one stroke:

19 whether the specified statewide policies and practices to which they are all subjected by

20 the DSC expose them to a substantial risk of harm. Here, Named Plaintiffs identified

21 several statewide practices that affect the General Class and Non-Kinship Subclass.

22

The inquiry here does not require the Court to determine the effect of the policies

23 and practices upon any individual class member (or class members) or to undertake an

24 individualized determination. Even if health issues may differ, every child in the DSC

25 custody is necessarily subject to the same medical, mental health, and dental care policies

26 and practices of the DSC in the same way that the inmates in Parsons were subjected to

27 the policies and practices of the ADC. Any one child could easily fall ill, be injured,

28 need treatment, require a diagnostic, need emergency care, crack a tooth, or require

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Case 2:15-cv-00185-ROS Document 363 Filed 09/30/17 Page 17 of 23

1 mental health treatment. And any child in the foster care system would be subjected to

2 the DSC’s policies regarding placement decisions. Thus, every single child in the foster

3 care system faces a substantial risk of serious harm if DSC policies and practices fail to

4 adhere to constitutional requirements. See Parsons, 754 F.3d at 679.

5

c. Statutory Claim under the Medicaid Act

6

Under the Medicaid Act, a state must have a plan for medical assistance that

7 provides for EPSDT services for individuals who are eligible for Medicaid. 42 U.S.C. §§

8 1396a(a)(10)(A); 1396d(a)(4)(B); 1396a(a)(43); 1396d(r). EPSDT services refer to

9 screening, medical, vision, dental, and hearing services as well as other necessary health

10 treatment services. 42 U.S.C. §§ 1396d(r)(1)-(5); 1396a(a)(43)(C). Children in state

11 foster care are eligible beneficiaries of Medicaid services. 42 U.S.C. § 12 1396a(a)(10)(A)(i)(I).4 Thus, Medicaid-eligible children in foster care have a right to

13 EPSDT services and the state Medicaid agency, such as AHCCCS, has “an obligation to

14 see that the services are provided when screening reveals that they are medically

15 necessary for a child.” Katie A. ex rel. Ludin v. Los Angeles Cty., 481 F.3d 1150, 1158

16 (9th Cir. 2007).

17

Named Plaintiffs identified several statewide practices affecting the proposed

18 Medicaid Subclass: excessive DCS caseworker caseloads, ineffective coordination of

19 mental and behavioral health care between DCS and AHCCCS contractors, AHCCCS

20 contractors’ incomplete and out-of-date service plans, ineffective coordination and

21 monitoring of physical and dental services by DCS, shortage of therapeutic foster care

22 placements and services maintained by AHCCCS and DCS, shortage of residential

23 treatment center placements maintained by AHCCCS, shortage of behavioral health

24 providers maintained by AHCCCS, and DCS’s overuse of congregate care for children

25

26

4 According to the SAC, Arizona has an EPSDT Periodicity Schedule which describes when certain health examinations and services need to be provided, and DCS

27

and AHCCCS have policies requiring examinations and services in specific situations. (Doc. 37 at 32-34.) Named Plaintiffs do not appear to challenge the written policies, but

28

rather conclude through personal experiences and expert findings that the DCS and AHCCCS’s actual practices did not comply with the written policies. Thus, Named

Plaintiffs challenge the routine practice of failing to provide statutorily required services.

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Case 2:15-cv-00185-ROS Document 363 Filed 09/30/17 Page 18 of 23

1 with unmet mental health needs. (Doc. 254 at 11; see also Doc. 234 at 13-27.)

2

Based on these practices, Named Plaintiffs assert there are common questions as

3 to whether these practices by AHCCCS and DCS (1) failed to provide timely and

4 adequate access to preventative medical, dental, and mental health screening and

5 diagnostic services; (2) failed to coordinate care to ensure timely medically necessary

6 physical, dental, and mental health treatment to address healthcare needs; and (3) failed

7 to build and maintain an adequate capacity and infrastructure of mental health providers

8 and therapeutic placements to assure that mental health needs are timely addressed.

9 (Doc. 234 at 29).

10

Similar to the constitutional claims, central to the claim here is the question of

11 whether practices by DSC and AHCCCS failed to adhere to the Medicaid statute. Even if

12 a child’s specific medical diagnosis may differ, however, whether the foster care system’s

13 practices establish a pattern of non-compliance arise from statewide policies and

14 practices by DSC and AHCCCS.

15

Betlach argues that with regard to the Medicaid Subclass, Named Plaintiffs failed

16 to meet the commonality requirement because “they woefully fail to offer any evidence

17 that AHCCCS has actually violated the EPSDT provisions.” (Doc. 248 at 11-12.)

18 However, “[m]erits questions may be considered to the extent—but only to the extent—

19 that they are relevant to determining whether the Rule 23 prerequisites for class

20 certification are satisfied.” Amgen, 568 U.S. at 466; see also Stockwell v. City & Cty. of

21 San Francisco, 749 F.3d 1107, 1112 (9th Cir. 2014) (holding that the opinion in Amgen

22 demonstrates commonality does not require showing the putative class will prevail on

23 whatever common questions it identifies); Messner v. Northshore Univ. HealthSystem,

24 669 F.3d 802, 811 (9th Cir. 2012) (“[T]he court should not turn the class certification

25 proceedings into a dress rehearsal for the trial on the merits.”); Ellis, 657 F.3d at 983 n.8

26 (emphasizing “whether class members could actually prevail on the merits of their 27 claims” is not a proper inquiry in determining “whether common questions exist”).5

28 5 In any case, Named Plaintiffs’ briefing and expert reports offer reliability and

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Case 2:15-cv-00185-ROS Document 363 Filed 09/30/17 Page 19 of 23

1 Thus, Named Plaintiffs satisfy the commonality requirement.

2

3. Typicality under Rule 23(a)(3)

3

Rule 23(a)(3) requires that “the claims or defenses of the representative parties are

4 typical of the claims or defenses of the class.” Fed. R. Civ. P 23(a)(3). A named

5 plaintiff’s claims are typical of the class under Rule 23(a)(3) if they are “reasonably

6 coextensive with those of the absent class members; they need to be substantially

7 identical.” Torres v. Mercer Canyons, Inc., 835 F.3d 1125, 1141 (9th Cir. 2016) (citation

8 omitted). The Ninth Circuit in Parsons stated that this test is met where the named

9 plaintiffs demonstrate their “injury is a result of a course of conduct that is not unique to

10 any of them,” and they allege that their “injury follows from the course of conduct at the

11 center of the class claims.” 754 F.3d at 685.

12

Here, B.T. and B.K. are children in DSC custody. It is alleged that both of them

13 have been and are exposed to a substantial risk of serious harm by the challenged DSC

14 and AHCCCS policies and practices. Thus, the Named Plaintiffs allege “the same or [a]

15 similar injury” as the rest of the putative class; they allege this injury is a result of a

16 course of conduct that is not unique to any of them and the injury follows from the cause

17 of conduct at the center of the class claims. Since every child in the foster care system

18 under state custody is highly likely to require medical care and housing placement, each

19 Named Plaintiff is similarly positioned to all other children with respect to exposure to

20 the Defendants’ policies and practices. In Parsons, the Ninth Circuit explicitly rejected

21 arguments in this context about how named plaintiffs may have in the past suffered

22 varying injuries or how they may currently have different health care needs. Parsons,

23 754 F.3d at 686. The Court held Rule 23(a)(3) requires only that their claims be “typical”

24 of the class and not that they be identically positioned to each other or to every class

25

26 significant information to show state-wide practices exist. Although it is not necessary to

27

assess the merits of whether Defendants violated the Medicaid Act beyond the question of class certification, Plaintiffs also offer evidence showing DCS and AHCCCS violated

28

Plaintiffs’ statutory rights by failing to do the following: (1) detect and treat medical and dental needs, (2) provide annual well-child physicals, (3) provide semi-annual dental

check-ups, and (4) provide timely immunizations. (Reply at 5-10.)

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1 member. Ellis, 657 F.3d at 985 n.9 (finding that typicality is not defeated by different

2 factual scenarios when they result in a claim of the same nature). Thus, Named Plaintiffs

3 satisfy typicality.

4

4. Adequacy of Representation under Rule 23(a)(4)

5

Rule 23(a)(4) requires the “representative parties will fairly and adequately protect

6 the interests” of each of the classes that Named Plaintiffs seek to certify. Fed. R. Civ. P.

7 23(a)(4). To determine whether this prerequisite is satisfied, the court asks two

8 questions: (1) do the named plaintiffs and their counsel have any conflicts of interest with

9 other class members and (2) will the named plaintiffs and their counsel prosecute the

10 action vigorously on behalf of the class?” Hanlon v. Chrysler Corp., 150 F.3d 1011,

11 1020 (9th Cir. 1998). Here, the Named Plaintiffs and their counsel do not have conflicts

12 of interest with other class members since Named Plaintiffs seek to improve structural

13 deficiencies that affect children in DCS custody. And Named Plaintiffs assert they will

14 continue to prosecute this action vigorously on behalf of each class member. Defendants

15 also do not contest this issue. Thus, this requirement is satisfied.

16

5. Injunctive and Declaratory Relief under Rule 23(b)(2)

17

Certification under this rule requires that “the party opposing the class has acted or

18 refused to act on grounds that apply generally to the class, so that final injunctive relief or

19 corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R.

20 Civ. P. 23(b)(2). Rule 23(b)(2)’s primary role is the certification of civil rights cases like

21 this one. Parsons, 754 F.3d at 688 (stating Rule 23(b)(2)’s requirements are

22 “unquestionably satisfied” when the putative class seeks “uniform injunctive or

23 declaratory relief from policies or practices that are generally applicable to the class as a

24 whole”).

25

Courts have invoked Rule 23(b)(2) to certify classes of foster children seeking

26 declaratory and injunctive relief for alleged widespread violations in the foster care

27 system. See, e.g., Marisol A. v. Guiliani, 126 F.3d 372, 378 (2d Cir. 1997) (affirming

28 class certification on behalf of a class of Medicaid-eligible foster children); DG ex rel.

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Case 2:15-cv-00185-ROS Document 363 Filed 09/30/17 Page 21 of 23

1 Stricklin v. Devaughn, 594 F.3d 1188 (10th Cir. 2010) (affirming the district court’s

2 finding that the proposed class satisfied Rule 23(b)(2)’s “generally applicable” and

3 cohesiveness requirements).

4

Defendants argue this requirement has not been met because the remedies sought

5 by Named Plaintiffs are “too abstract” and are so generic that relief could be afforded to

6 every class member only if the Court tailored an injunction as to each one. (Doc. 245 at

7 7; Doc. 248 at 15.) However, Named Plaintiffs’ claims challenge Defendants’ common

8 set of policies and practices involving health care services and the placement of children

9 in the foster care system. And although Betlach contends certification of the Medicaid

10 Subclass will implicate individualized adjudications, Named Plaintiffs are claiming that

11 Defendants’ policies are impermissible under the statute—not that a specific plaintiff

12 should have received a particular diagnosis or treatment instead of another. See Perez-

13 Olano v. Gonzalez, 248 F.R.D. 248, 259 (C.D. Cal. 2008) (finding the Rule 23(b)(2)

14 requirements met when the legality of defendants’ conduct involved defendants’ common

15 set of policies that are applied to a category of in-custody minors). In other words, the

16 harm Named Plaintiffs seek to remedy is the “risk of exposure” created by subjecting

17 children in foster care to DSC’s and AHCCCS’s policies and practices—not the harm an

18 individual child suffers from a misdiagnosis. Thus, this requirement is satisfied.

19

c. Appointment of Counsel

20

Named Plaintiffs seek to appoint Perkins Coie LLP, Arizona Center for Law in the

21 Public Interest, and Children’s Rights, Inc. as class counsel. (Doc. 37 at 35; Doc. 234 at

22 44.) Class counsel must fairly and adequately represent the interests of the class. Fed. R.

23 Civ. P. 26(g)(4). In appointing class counsel, the court must consider: (i) the work

24 counsel has done in identifying or investigating potential claims in the action; (ii)

25 counsel’s experience in handling class actions, other complex litigation, and the types of

26 claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the

27 resources that counsel will commit to representing the class. Fed. R. Civ. P.

28 26(g)(1)(A)(i)-(iv). The Court may also consider anything else “pertinent to counsel’s

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Case 2:15-cv-00185-ROS Document 363 Filed 09/30/17 Page 22 of 23

1 ability to fairly adequately represent the interests of the class” and “may order potential

2 class counsel to provide information on any subject pertinent to the appointment and to

3 propose terms for attorney’s fees and nontaxable costs.” Fed. R. Civ. P. 23(g)(1)(B)-(C).

4 Rule 23(g) also instructs, “[i]f more than one adequate applicant seeks appointment, the

5 court must appoint the applicant best able to represent the interests of the class.” Fed. R.

6 Civ. P. 23(g)(2).

7

Named Plaintiffs seek the appointment of a law firm and two legal organizations

8 as class counsel. (Doc. 234 at 44.) Despite the strictures of Rule 23(g), given the size of

9 the proposed class, it is not unreasonable to appoint multiple counsel in this case. Here,

10 Plaintiffs’ counsel satisfies the four requirements under Rule 26(g)(4). First, counsel

11 conducted an exhaustive investigation the Arizona child welfare system, safety, health,

12 and well-being of children in DSC custody. (Doc. 234 at 44.) Counsel interviewed

13 dozens of stakeholders across the state and spent hundreds of hours obtaining and

14 reviewing relevant information. (Id.) Second, counsel also have a wealth of experience

15 in complex litigation and in representing children in the custody of state child welfare

16 systems. (Id.) Third, counsel are well-versed and have extensive experience in the law

17 and claims at issue here and have handled numerous civil rights lawsuits in federal court.

18 (Id.) Fourth, counsel are prepared to continue funding this litigation through its

19 resolution and will continue to dedicate the resources required to zealously represent the

20 class and subclasses of children. (Id.; Docs. 235, 236, 237.) Moreover, McKay and

21 Betlach do not object to the appointment of counsel. (See Doc. 245 at 1 n.3.) Thus, the

22 Court will appoint Named Plaintiffs’ counsel as class counsel.

23

Accordingly,

24

IT IS ORDERED Named Plaintiffs’ motion for class certification (Doc. 234) is

25 GRANTED in part. The Court certifies the General Class, the Non-Kinship Subclass,

26 and the Medicaid Subclass as follows:

27

General Class: All children who are or will be in the legal custody of DCS due to a

28 report or suspicion of abuse or neglect.

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Case 2:15-cv-00185-ROS Document 363 Filed 09/30/17 Page 23 of 23

1

Non-Kinship Subclass: All members in the General Class who are not placed in

2 the care of an adult relative or person who has a significant relationship with the child.

3

Medicaid Subclass: All members of the General Class who are entitled to early

4 and periodic screening, diagnostic, and treatment services under the federal Medicaid

5 statute.

6

IT IS FURTHER ORDERED Named Plaintiffs B.K., by her next friend

7 Margaret Tinsley, and B.T. , by his next friend Jennifer Kupiswzewski, are appointed as

8 Class Representatives for the General Class, the Non-Kinship Subclass, and the Medicaid

9 Subclass.

10

IT IS FURTHER ORDERED Named Plaintiffs’ request to appoint Perkins Coie

11 LLP, Arizona Center for Law in the Public Interest, and Children’s Rights, Inc. as Class

12 Counsel is GRANTED.

13

Dated this 29th day of September, 2017.

14

15

16

Honorable Roslyn O. Silver

17

Senior United States District Judge

18

19

20

21

22

23

24

25

26

27

28

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 Case 2:15-cv-00185-ROS Document 418 Filed 04/26/19 Page 1 of 49

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

B.K., by her next friend Margaret Tinsley; B.T., by their next friend Jennifer Kupiszewski; A.C.-B., by their next friend Susan Brandt; M.C.B., by their next friend Susan Brandt; D.C.-B., by their next friend Susan Brandt; J.M., by their next friend Susan Brandt,
Plaintiffs-Appellees,
v.
JAMI SNYDER, in her official capacity as Director of the Arizona Health Care Cost Containment System,
Defendant-Appellant.

No. 17-17501
D.C. No. 2:15-cv-00185-
ROS

Case 2:15-cv-00185-ROS Document 418 Filed 04/26/19 Page 2 of 49

2

B.K. V. SNYDER

B.K., by her next friend Margaret Tinsley; B.T., by their next friend Jennifer Kupiszewski; A.C.-B., by their next friend Susan Brandt; M.C.B., by their next friend Susan Brandt; D.C.-B., by their next friend Susan Brandt; J.M., by their next friend Susan Brandt,
Plaintiffs-Appellees,
v.
GREGORY MCKAY, in his official capacity as Director of the Arizona Department of Child Safety,
Defendant-Appellant.

No. 17-17502
D.C. No. 2:15-cv-00185-
ROS
OPINION

Appeal from the United States District Court for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Argued and Submitted January 17, 2019 San Francisco, California
Filed April 26, 2019
Before: J. Clifford Wallace and Michelle T. Friedland, Circuit Judges, and Lynn S. Adelman,* District Judge.
Opinion by Judge Wallace; Partial Concurrence and Partial Dissent by Judge Adelman

* The Honorable Lynn S. Adelman, United States District Judge for the Eastern District of Wisconsin, sitting by designation.

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B.K. V. SNYDER

3

SUMMARY**

Civil Rights
The panel affirmed in part and vacated in part the district court’s class certification order and remanded for further proceedings in an action brought by children in the Arizona foster care system against directors of the Arizona Department of Child Safety and the Arizona Health Care Cost Containment System alleging that Arizona’s state-wide policies and practices deprived them of required medical and other services, and that this subjected them to a substantial risk of harm and violated the Medicaid Act.
Plaintiffs alleged that defendants’ state-wide policies and practices violated their rights to due process under the Fourteenth Amendment, family integrity under the First, Ninth, and Fourteenth Amendments, and medical services under the Medicaid Act. The district court certified a General Class of all children who are or will be in the Department of Child Safety’s custody due to a report or suspicion of abuse or neglect. The district court further certified two subclasses: (1) a Non-Kinship Subclass consisting of members in the General class who are not placed in the care of an adult relative or person with a significant relationship with the child; and (2) a Medicaid Subclass consisting of all members of the General class who were entitled to services under the federal Medicaid statute.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

Case 2:15-cv-00185-ROS Document 418 Filed 04/26/19 Page 4 of 49

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B.K. V. SNYDER

Affirming the district court’s certification of the General Class, the panel first held that class representative B.K. had standing to press her due process claims given that she has serious medical diagnoses, presented evidence that she has not received adequate medical care or appropriate placements in the past and presented evidence of a risk of similar future harms. The panel then held that the district court did not err or abuse its discretion in its ruling that the class had commonality and typicality and that uniform injunctive relief was available. The panel concluded that the district court properly grounded its commonality determination in the constitutionality of statewide policies and practices that could be properly litigated in a class setting. Addressing the typicality requirement, the panel held that B.K. had demonstrated with evidence that she was subject to statewide policies and practices that applied to every member of the class. Finally, the panel held that a single, indivisible injunction ordering state officials to abate those policies and practices would provide relief to each member of the class, thus satisfying Rule 23(b)(2).

Affirming the district court’s certification of the NonKinship Subclass, the panel held that B.K. had standing to bring the subclass’s due process claims. The panel then held that by identifying certain statewide practices, such as excessive use of emergency shelters and group homes, the district court satisfied the commonality, typicality, and uniformity of injunctive relief factors. The panel concluded that the district court would be able to determine whether defendants have an unconstitutional practice of placing children in substantial risk of harm by evaluating these practices as a whole, rather than as to each individual class member.

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B.K. V. SNYDER

5

Addressing the Medicaid Subclass, the panel held that the materials in the record supported B.K.’s standing. The panel held that the district court abused its discretion by certifying the Medicaid Subclass based on an apparent misconception of the legal framework for such a claim. The panel noted that in the due process context relevant to the General and Non-Kinship Subclasses, proving a substantial risk of harm was all that was necessary to prove a claim. A claim under the Medicaid Act, however, must be based on actions that actually violate the Act’s requirements. The panel further determined that the district court failed to make a factual finding that every subclass member was subject to an identical significant risk of a future Medicaid violation that would support injunctive relief. The panel therefore vacated the Medicaid Subclass and remanded for further proceedings.

Concurring in part and dissenting in part, Judge Adelman concurred in all parts of the majority’s opinion except the portion addressing the Medicaid Subclass. Judge Adelman stated that the answer to the legal question of whether exposure to a risk of harm violates the Medicaid statute did not affect class certification in this case, where the class sought only injunctive relief. Moreover, Judge Adelman stated that the district court made findings of fact that supported its decision to certify the Medicaid Subclass, and those findings were not clearly erroneous.

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B.K. V. SNYDER

COUNSEL

Robert L. Ellman (argued) and David Simpson, Ellman Law Group LLC, Phoenix, Arizona; Nicholas D. Acedo (argued) and Daniel P. Struck, Struck Love Bojanowski & Acedo P.L.C., Chandler, Arizona; Daniel P. Quigley, Cohen Dowd Quigley P.C., Phoenix, Arizona; Logan T. Johnston, Johnston Law Offices, Phoenix, Arizona; for DefendantsAppellants.

Harry Frischer (argued) and Aaron Finch, Children’s Rights Inc., New York, New York; Anne C. Ronan and Daniel J. Adelman, Arizona Center for Law in the Public Interest, Phoenix, Arizona; Andrea J. Diggs, Thomas D. Ryerson, Joel W. Nomkin, Shane R. Swindle, and Joseph E. Mais, Perkins Coie LLP, Phoenix, Arizona; for PlaintiffsAppellees.

Marsha L. Levick, Juvenile Law Center, Philadelphia, Pennsylvania, for Amici Curiae Juvenile Law Center, Bluhm Legal Clinic, Center for Children’s Law & Policy, Center for Public Representation, Children & Family Justice Center, Children’s Advocacy Institute, Children’s Defense Fund New York, Civitas Childlaw Center, Columbia Legal Services, Disability Rights Pennsylvania, Harvard Law School Child Advocacy Program, Impact Fund, National Association of Counsel for Children, National Center for Youth Law, National Health Law Program, National Women’s Law Center, Nebraska Appleseed, Robert F. Kennedy Human Rights, Rutgers School of Law—Camden Children’s Justice Clinic, Washington Lawyers’ Committee for Civil Rights and Urban Affairs, and Youth Law Center.

Corene T. Kendrick, Prison Law Office, Berkeley, California; Amanda W. Shanor and David C. Fathi,

Case 2:15-cv-00185-ROS Document 418 Filed 04/26/19 Page 7 of 49

B.K. V. SNYDER

7

American Civil Liberties Union Foundation, Washington, D.C.; Kathleen E. Brody, ACLU Foundation of Arizona, Phoenix, Arizona; for Amici Curiae American Civil Liberties Union, American Civil Liberties Union of Arizona, and Prison Law Office.

Andrew R. Kaufman, Lieff Cabraser Heimann & Bernstein LLP, Nashville, Tennessee; Katherine I. McBride, Jason L. Lichtman, and Jonathan D. Selbin, Lieff Cabraser Heimann & Bernstein LLP, New York, New York; Elizabeth J. Cabraser, Lieff Cabraser Heimann & Bernstein LLP, San Francisco, California; for Amici Curiae Administrative Law, Civil Procedure, and Federal Courts Professors.

OPINION
WALLACE, Circuit Judge:
The Arizona Department of Child Safety and the Arizona Health Care Cost Containment System are responsible for delivering health care and other services to the thousands of children in the Arizona foster care system. In 2015, ten of those children brought an action against the directors of these agencies for alleged violations of the federal Constitution and the Medicaid Act, alleging that Arizona’s state-wide policies and practices deprived them of required medical services, among other things, and thus subjected them to a substantial risk of harm. Based on these claims, the district court certified a class of all children who are or will be in the Department of Child Safety’s custody, along with two subclasses. The Director of the Department of Child Safety and the Director of the Health Care Cost Containment System timely sought review of those class certification decisions, and we accepted their interlocutory appeals. We

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B.K. V. SNYDER

have jurisdiction under 28 U.S.C. § 1292, and we affirm in part, vacate in part, and remand for further proceedings.
I.
A.
Gregory McKay is the Director of the Arizona Department of Child Safety (DCS). DCS’s primary purpose is to “protect children,” by investigating reports of abuse and neglect, establishing foster care placements, working with law enforcement, maintaining permanency, and providing treatment to families. Ariz. Rev. Stat. (ARS) § 8-451. Pursuant to DCS’s statutory framework, DCS investigates reports of threats to child safety and may remove children from their homes by superior court order, consent of the child’s guardian, or where “clearly necessary to protect the child because exigent circumstances exist.” ARS § 8-821(A), (D). DCS may also petition to commence dependency proceedings in Arizona state court by alleging that a child is dependent. ARS § 8-841(A). On the filing of such a petition, the Arizona court may issue “temporary orders necessary to provide for the safety and welfare of the child,” ARS § 8-841(F), and assumes continuing jurisdiction “over all matters affecting dependent children,” In re Appeal in Maricopa Cty. Juvenile Action No. JD-6236, 874 P.2d 1006, 1008 (Ariz. Ct. App. 1994). The court then holds a dependency hearing to adjudicate whether the child is dependent. ARS § 8-844. If the child is dependent, the court will typically place the child in DCS’s legal custody, triggering DCS’s legal obligations to the child. See, e.g., Oscar F. v. Dep’t of Child Safety, 330 P.3d 1023, 1025 (Ariz. Ct. App. 2014) (“Since the day after the dependency petition was filed, the children have been temporary wards of the Court, committed to the legal care, custody and control of DCS” (alterations and internal quotation marks omitted)).

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B.K. V. SNYDER

9

Jami Snyder is Director of the Arizona Health Care Cost Containment System (AHCCCS). AHCCCS administers Arizona’s Medicaid program, which provides medical services to various categories of individuals within the state. Medicaid is “a cooperative federal-state program through which the federal government provides financial assistance to states so that they can furnish medical care to low-income individuals.” Cal. Ass’n of Rural Health Clinics v. Douglas, 738 F.3d 1007, 1010 (9th Cir. 2013). Among those individuals are foster children within the state’s care. See 42 U.S.C. § 1396a(a)(10)(A)(i)(I). Medicaid is jointly financed by the federal and state governments and is administered by state governments through state “plans,” which are approved by the federal Secretary of Health and Human Services. Cal. Ass’n of Rural Health Clinics, 738 F.3d at 1010. Once a state joins the Medicaid system, it must comply with federal statutory and regulatory requirements to ensure that its plan provides all required healthcare services. Id. These requirements may be courtenforced through a private claim by eligible Medicaid beneficiaries, when such a claim exists. Id. at 1013. We refer to McKay and Snyder collectively as “the Directors” unless the context otherwise requires, without losing sight of their unique statutory duties and the distinct claims asserted against each.
The ten original plaintiffs in this case were foster children in Arizona’s care. They initiated this action in February 2015, alleging that the Directors had state-wide policies and practices that violated their rights to due process under the Fourteenth Amendment, family integrity under the First, Ninth, and Fourteenth Amendments, and medical

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B.K. V. SNYDER

services under the Medicaid Act.1 The plaintiffs’ original goal was to maintain a class action with themselves as class representatives, but over the next two-plus years of litigation eight plaintiffs were adopted or otherwise removed from the foster care system, leaving only two at the time of class certification. Since class certification, moreover, an additional plaintiff appears to have aged out of the proposed classes. We therefore discuss plaintiff B.K. as the representative class member.2

B.K. alleges that that she has been deprived of necessary health care, separated from her siblings, deprived of family contact, and placed in inappropriate care environments. B.K. alleges that these deprivations amount to violations of her right to due process under the Fourteenth Amendment and of her right to reasonably prompt early and periodic screening, diagnostic, and treatment services (EPSDT services) under the Medicaid Act. B.K. also alleges that these violations are caused by specified state-wide policies and practices.

B.

In November 2016, the named plaintiffs sought class certification for a class of all children who are or will be in DCS’s custody, along with a subclass of children who, while in DCS’s custody, were not placed in the care of an adult

1 The plaintiffs later voluntarily dismissed their family integrity claim.
2 The record is admittedly vague on this point, but any vagary is immaterial because it does not affect our disposition. On remand, the district court remains free to certify, decertify, or amend classes, and the parties may resolve which plaintiffs remain adequate class members in that forum. See Fed. R. Civ. P. 23(c)(1)(C).

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B.K. V. SNYDER

11

relative or person with a significant relationship with the child, and a subclass of children eligible for Medicaid. The named plaintiffs supported their motion for class certification with their complaint; raw data generated by DCS to show how DCS was failing to deliver timely health care to foster children; expert reports by Steven Blatt, MD, Marci White, MSW, and Arlene Happach, a psychologist, who declared that Arizona’s foster care system put children in grave risk of harm by failing to provide adequate care; and independent investigative reports, deposition testimony, and DCS/AHCCCS policy and educational materials. B.K. also supported her claim as class representative with excerpts from her DCS file that, if interpreted and credited as the plaintiffs contended, could tend to show she has been kept in inappropriate home settings and has serious unmet mental and physical healthcare needs.

B.K. asserted two due process claims on behalf of the general class, one due process claim on behalf of the nonkinship subclass, and one Medicaid Act claim on behalf of the Medicaid subclass. The district court analyzed the class certification motion through the lens of these claims. In September 2017, the district court certified the following classes:

General Class:

All children who are or will be in the legal custody of DCS due to a report or suspicion of abuse or neglect.

Non-Kinship Subclass:

All members in the General Class who are not placed in the care of an adult relative or person

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B.K. V. SNYDER

who has a significant relationship with the child.

Medicaid Subclass:

All members of the

General Class who are

entitled to early and

periodic

screening,

diagnostic, and treatment

services under the federal

Medicaid statute.

The district court reasoned that the due process claims could be litigated class-wide as to the General Class and NonKinship Subclass by answering whether the alleged statewide policies and practices were unconstitutional, following our reasoning in Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014). The district court explained that:

Even if health issues may differ, every child in the [DCS] custody is necessarily subject to the same medical, mental health, and dental care policies and practices of the [DCS] in the same way that the inmates in Parsons were subjected to the policies and practices of the ADC [Arizona Department of Corrections]. Any one child could easily fall ill, be injured, need treatment, require a diagnostic, need emergency care, crack a tooth, or require mental health treatment. And any child in the foster care system would be subjected to the [DCS] policies regarding placement decisions. Thus, every single child in the foster care system faces a substantial risk of

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B.K. V. SNYDER

13

serious harm if [DCS] policies and practices fail to adhere to constitutional requirements.

The district court followed similar reasoning to certify the Medicaid Subclass, explaining that:
Similar to the constitutional claims, central to the claim here is the question of whether practices by [DCS] and AHCCCS failed to adhere to the Medicaid statute. Even if a child’s specific medical diagnosis may differ, however, whether the foster care system’s practices establish a pattern of noncompliance arise from statewide policies and practices by [DCS] and AHCCCS.

The district court also held that class certification comported with Federal Rule of Civil Procedure 23(a)(1), (3)–(4) and 23(b)(2).
The Directors timely sought interlocutory review of the district court’s class certification order, and we stayed proceedings in the district court pending our review. The only issue on appeal is whether the three classes were properly certified, including whether the named plaintiffs and class members have standing to bring their claims.
II.
We review a district court’s class certification decision for abuse of discretion. An error of law is a per se abuse of discretion. Accordingly, we first review a class certification determination for legal error under a de novo standard, and if no legal error occurred, we will proceed to review the

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B.K. V. SNYDER

decision for abuse of discretion. A district court applying the correct legal standard abuses its discretion only if it (1) relies on an improper factor, (2) omits a substantial factor, or (3) commits a clear error of judgment in weighing the correct mix of factors. Additionally, we review the district court’s findings of fact under the clearly erroneous standard, meaning we will reverse them only if they are (1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the record.

Sali v. Corona Reg’l Med. Ctr., 909 F.3d 996, 1002 (9th Cir. 2018) (internal quotation marks, alterations, and citations omitted).
“We review the district court’s factual findings [as to standing] under the clearly erroneous standard and review the district court’s determination of standing de novo.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 978 (9th Cir. 2011).
III.

Class actions are governed by Federal Rule of Civil Procedure 23. Rule 23(b)(2) provides that “[a] class action may be maintained if Rule 23(a) is satisfied and if . . . the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Rule 23(a) in turn provides that “members of a class may sue or be sued as representative parties on behalf of all members only if” four class prerequisites are met. These four prerequisites are

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B.K. V. SNYDER

15

commonly known as (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 330 (1980).
The Directors argue that all three classes in this action should not have been certified by the district court. We examine each class in turn.
A.
The district court certified a General Class consisting of “[a]ll children who are or will be in the legal custody of DCS due to a report or suspicion of abuse or neglect.” This class alleges that Director McKay has violated the class’s right to substantive due process under the Fourteenth Amendment by failing to care adequately for the children in the class. The Directors argue that this class should have failed because the class members lack standing to press their due process claim, the class lacks commonality, the representative plaintiffs’ claims and defenses are not typical of the class, and uniform injunctive relief under Rule 23(b)(2) is unavailable.
1.
We begin our analysis with standing. Standing is a “threshold issue” and an “essential and unchanging part of the case-or-controversy requirement of Article III.” Horne v. Flores, 557 U.S. 433, 445 (2009) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). “To establish standing, a plaintiff must present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant’s challenged action; and redressable by a favorable ruling.” Id. (citing Lujan, 504 U.S. at 560–61). The Directors argue that absent class members lack standing because some class members are adequately receiving care, and thus do not have a concrete due process injury. However,

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the Directors misunderstand both the nature of the plaintiffs’ due process claims and the nature of an Article III standing inquiry in the context of class certification.
Of course, the Directors are correct that class representatives must have Article III standing, as the irreducible constitutional minimum of a case or controversy. See In re Zappos.com, Inc., 888 F.3d 1020, 1024 (9th Cir. 2018). It was the named plaintiffs’ burden — as it would be any other plaintiff’s — to support each standing element “in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of litigation.” Lujan, 504 U.S. at 561. “[T]he manner and degree of evidence required at the preliminary class certification stage is not the same as at the successive stages of the litigation — i.e., at trial.” Sali, 909 F.3d at 1006 (internal quotation marks omitted). But the Directors then confuse the standing analysis in a class action for the class certification analysis. As we have previously explained, “once the named plaintiff demonstrates her individual standing to bring a claim, the standing inquiry is concluded, and the court proceeds to consider whether the Rule 23(a) prerequisites for class certification have been met.” Melendres v. Arpaio, 784 F.3d 1254, 1262 (9th Cir. 2015) (quoting 1 William B. Rubenstein, Newberg on Class Actions § 2:6 (5th ed. 2011)). “[A]ny issues regarding the relationship between the class representative and the passive class members — such as dissimilarity in injuries suffered — are relevant only to class certification, not to standing.” Id. (quoting Newberg on Class Actions § 2:6). This does not mean that Article III considerations are irrelevant to Rule 23, for we are always “mindful that the Rule’s requirements must be interpreted in keeping with Article III constraints.” Ortiz v. Fibreboard Corp., 527 U.S. 815, 831 (1999) (alterations omitted)

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(quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 612–13 (1997)). But it does mean that when we measure a plaintiff’s standing, regardless of whether the plaintiff sues individually or as class representative, we look concretely at the facts that pertain to that plaintiff. Thus, the relevant inquiry here is whether B.K. has standing to bring the two due process claims asserted on behalf of the General Class.
In this case, B.K. has standing to press her due process claims, and that concludes the standing inquiry. B.K. has serious medical diagnoses that require prompt and adequate medical care from her custodian, which is the State of Arizona. She has presented evidence that she has not received adequate medical care or appropriate placements in the past as well as evidence that statewide policies and practices expose her to a risk of similar future harms. If state officials failed and continue to fail to provide her “reasonable safety and minimally adequate care and treatment appropriate to [her] age and circumstances” through the deficient statewide policies and practices she alleges, the harm to her will have been caused by those officials. See Lipscomb v. Simmons, 962 F.2d 1374, 1379 (9th Cir. 1992). If those allegedly deficient policies and practices are abated by an injunction, that harm may be redressed by a favorable court decision. B.K. therefore has standing to press the due process claims she brings on behalf of the General Class.
2.
We next turn to whether B.K. may represent the General Class consistent with Rule 23. We begin our analysis with commonality.
Rule 23(a)(2) provides that class members may sue as representative parties only if “there are questions of law or

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fact common to the class.” “That language is easy to misread, since any competently crafted class complaint literally raises common questions.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011) (alteration and internal quotation marks omitted) (quoting Richard Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 131–32 (2009)). Merely alleging a “violation of the same provision of law” does not satisfy commonality. Id. at 350. Instead, the plaintiffs’ claims must “‘depend upon a common contention’ such that ‘determination of their truth or falsity will resolve an issue that is central to the validity of each of the claims in one stroke.’” Parsons, 754 F.3d at 675 (alteration omitted) (quoting Wal-Mart, 564 U.S. at 350). “What matters to class certification is not the raising of common questions — even in droves — but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Id. (internal quotation marks, alterations, and emphasis omitted) (quoting Wal-Mart, 564 U.S. at 350). “[W]here the circumstances of each particular class member vary but retain a common core of factual or legal issues with the rest of the class, commonality exists.” Id. (quoting Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1029 (9th Cir. 2012)).

“[I]n all class actions, commonality cannot be determined without a precise understanding of the nature of the underlying claims.” Id. at 676. “[T]o assess whether the putative class members share a common question, the answer to which will resolve an issue that is central to the validity of each one of the class member’s claims, we must identify the elements of the class member’s case-in-chief.” Id. (internal quotation marks and alterations omitted) (quoting Stockwell v. City and Cty. of San Francisco, 749 F.3d 1107, 1114 (9th Cir. 2014)).

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Here, B.K. seeks to press two due process claims on behalf of the General Class. Due process requires the state to provide children in its care “reasonable safety and minimally adequate care and treatment appropriate to the age and circumstances of the child.” Lipscomb, 962 F.2d at 1379. To prevail on a claim for failure to meet this duty, a plaintiff must prove that state officials acted with such deliberate indifference to the plaintiffs’ liberty interest that their actions “shock the conscience.” Tamas v. Dep’t of Soc. & Health Servs., 630 F.3d 833, 844 (9th Cir. 2010) (quoting Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006)). This standard requires proof of two facts: (1) an objectively substantial risk of harm, and (2) the official’s subjective awareness of that risk. Id. at 845. The second part may be proven by showing (1) that the official was aware of facts from which an inference of risk may be drawn and that the official made that inference, (2) that the official was aware of facts from which an inference of risk may be drawn and that any reasonable official would have been compelled to draw that inference, or (3) that the risk of harm is obvious. Id.
Based on the nature of the plaintiffs’ due process claims and the scope of the class certified, the district court here did not abuse its discretion by determining that commonality exists. We have previously recognized in the Eighth Amendment context that a state’s policies and practices can expose all persons within its custody to a substantial risk of harm, which is the legal standard required by this due process claim. In Parsons v. Ryan, we held that a class of “all prisoners who are now, or will in the future be, subjected to the medical, mental health, and dental care policies and practices of the ADC [Arizona Department of Corrections]” had sufficient commonality because “[t]he putative class . . . members thus all set forth numerous common contentions whose truth or falsity can be determined in one stroke:

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whether the specified statewide policies and practices to which they are all subjected by ADC expose them to a substantial risk of harm.” 754 F.3d at 678. We explicitly rejected the reasoning pressed on us by the Directors here: that “plaintiffs’ claims a[re] ultimately little more than a conglomeration of many such individual claims, rather than . . . a claim that central policies expose all inmates to a risk of harm.” Id. at 675 n.17. Thus, it did not matter whether each individual prisoner had already been harmed by falling sick and receiving inadequate care, but whether every prisoner, solely by virtue of being in Arizona’s prisons, was at substantial risk of future harm. Id. at 678. Because every prisoner in the class was exposed, “as a result of specified statewide ADC policies and practices that govern the overall conditions of health care services and confinement, to a substantial risk of serious future harm to which the defendants are allegedly deliberately indifferent . . . every inmate suffer[ed] exactly the same constitutional injury.” Id. The “policies and practices [we]re the ‘glue’ that h[eld] together the putative class,” because “either each of the policies and practices is unlawful as to every inmate or it is not.” Id.3
The same reasoning applies here. The district court properly grounded its commonality determination in the constitutionality of statewide policies and practices, which is a “common question of law or fact” that can be litigated in

3 Some of the policies and practices alleged in Parsons included: “creation of lengthy and dangerous delays in receiving care and outright denials of health care; . . . a practice of employing insufficient health care staff; . . . failure to provide prisoners with care for chronic diseases and protection from infectious diseases; . . . denial of medically necessary mental health treatment . . . and . . . denial of basic mental health care to suicidal and self-harming prisoners.” Parsons, 754 F.3d at 664 (internal quotation marks and alterations omitted).

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“one stroke.” See Wal-Mart, 564 U.S. at 350. Specifically, the district court identified the following “statewide practices affecting the proposed General Class”: (1) failure to provide timely access to health care, including comprehensive evaluations, timely annual visits, semiannual preventative dental health care, adequate health assessments, and immunizations; (2) failure to coordinate physical and dental care service delivery; (3) ineffective coordination and monitoring of DCS physical and dental services; (4) overuse of congregate care for children with unmet mental needs; (5) excessive caseworker caseloads; (6) failure to investigate reports of abuse timely; (7) failure to document “safety assessments”; (8) failure to close investigations timely; and (9) investigation delays. Regardless whether any of these policies are ultimately found unconstitutional such that the plaintiffs prevail on the merits, their constitutionally can properly be litigated in a class setting. Thus, as in Parsons, the statewide policies and practices are the “glue” that holds the class together. See 754 F.3d at 678.
The Directors do not seriously dispute the adequacy of the General Class in this regard. At oral argument, counsel for the Directors conceded that they were not challenging the district court’s application of Parsons, but the validity of Parsons itself. That argument is beyond the scope of this panel’s authority and we will not address it. See Miller v. Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003) (en banc) (holding that circuit precedent may be overturned only en banc, with exceptions that do not apply here). We therefore conclude that the district court did not abuse its discretion by concluding that commonality existed.

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3.
We next address typicality. Rule 23(a)(3) provides that class members may sue as representative parties only if “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” The named plaintiff’s representative claims are “typical” if they are “reasonably coextensive with those of absent class members; they need not be substantially identical.” Parsons, 754 F.3d at 685 (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998)). “The test of typicality is ‘whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.’” Id. (quoting Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)).
In Parsons, we concluded that the district court did not abuse its discretion in similar circumstances. There, we reasoned that (1) “the named plaintiffs are all inmates in ADC custody” and (2) “[e]ach declares that he or she is being exposed, like all other members of the putative class, to a substantial risk of serious harm by the challenged ADC policies and practices.” Id. Based on those facts, we concluded that
The named plaintiffs thus allege “the same or a similar injury” as the rest of the putative class; they allege that this injury is a result of a course of conduct that is not unique to any of them; and they allege that the injury follows from the course of conduct at the center of the class claims.

Id. (alteration omitted) (quoting Hanon, 976 F.2d at 508).

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Once more, the same reasoning applies here. B.K. is a child in Arizona’s custody. The members of the General Class are children who are or will be in Arizona’s custody. B.K. has demonstrated, not merely through allegations but through raw data, expert reports, deposition testimony, and DCS materials, that she is subject to statewide policies and practices that apply equally to every member of the class. By defining her claim based on the risk of harm caused by these policies — a cognizable constitutional injury under our precedent — B.K. has demonstrated that class members have similar injuries, based on conduct that is not unique to her, and caused by the same injurious course of conduct. See id.
The Directors counter that B.K., and in fact any class representative, remains atypical because the class is internally in conflict. Citing typicality’s purpose of “assur[ing] that the interest of the named representative aligns with the interests of the class,” Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1019 (9th Cir. 2011) (quoting Wolin v. Jaguar Land Rover N. Am., 617 F.3d 1168, 1175 (9th Cir. 2010)), the Directors argue that class representatives will seek to prioritize their own desired reforms to Arizona’s foster care system at the expense of other possibilities. This is not necessarily true, cf. Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (en banc) (“Lack of resources is not a defense to a claim for prospective relief because prison officials may be compelled to expand the pool of existing resources in order to remedy continuing Eighth Amendment violations”), but — even were we to agree with the Directors’ argument in principal — it would not be enough for us to deem the district court’s contrary decision a legal error or “a clear error of judgment.” See Sali, 909 F.3d at 1002. B.K.’s claim is reasonably coextensive with absent class members’ claims, and that is sufficient.

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The district court did not abuse its discretion by determining that the named plaintiffs were typical of the class.
4.
Finally, we address uniform injunctive relief. Civil Rule 23(b)(2) provides that “[a] class action may be maintained if . . . the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” “The key to the (b)(2) class is the ‘indivisible nature of the injunctive or declaratory remedy warranted — the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.’” WalMart, 564 U.S. at 360 (quoting Nagareda, 84 N.Y.U. L. Rev. at 132). “In other words, Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction.” Id. (emphasis in original omitted).
In Parsons, we concluded that the district court did not abuse its discretion by certifying a Rule 23(b)(2) class when the plaintiffs requested the defendants be ordered “to develop and implement, as soon as practical, a plan to eliminate the substantial risk of serious harm that prisoner Plaintiffs and members of the Plaintiff Class suffer due to Defendants’ inadequate medical, mental health, and dental care.” 754 F.3d at 687. Rejecting the defendants’ argument that every individual inmate required an individual injunction, we explained that Rule 23(b)(2)’s requirements are “unquestionably satisfied when members of a putative class seek uniform injunctive or declaratory relief from

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policies or practices that are generally applicable to the class as a whole.” Id. at 688. Thus, because “all members of the putative class and subclass [we]re allegedly exposed to a substantial risk of serious harm by a specified set of centralized ADC policies and practices of uniform and statewide application,” the defendants had “acted or refused to act on grounds that apply generally to the class.” Id. (quoting Fed. R. Civ. P. 23(b)(2)).
Once more, the same reasoning applies here. The plaintiffs have not brought a concatenation of individual claims that must be redressed through individual injunctions; they have brought unified claims that “a specified set of centralized [DCS] policies and practices of uniform and statewide application” have placed them at a substantial risk of harm. See id. A single, indivisible injunction ordering state officials to abate those policies and practices “would provide relief to each member of the class,” thus satisfying Rule 23(b)(2). See Wal-Mart, 564 U.S. at 360.
The Directors’ arguments to the contrary do not convince us. The Directors first argue that no injunction could apply to all plaintiffs in the general class because different foster children face different potential harms, thus having different competing interests, and thus needing different injunctive relief. But this argument improperly assumes that abating the plaintiffs’ specified policies and practices will be an eitheror situation where only some (or zero) class members receive their desired relief. That is incorrect, for two reasons. First, class certification is not a decision on the merits, and the plaintiffs will only be entitled to injunctive relief if such relief is necessary to redress the constitutional violations they actually prove at trial. Second, even if abating two or more unconstitutional policies is impossible with limited funds, state officials “may be compelled to expand the pool

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of existing resources in order to remedy continuing [constitutional] violations.” Peralta, 744 F.3d at 1083. For instance, the district court could enjoin DCS to hire more caseworkers in order to meet health care delivery deadlines in a manner that ensures the plaintiffs receive timely medical evaluations and care. Cf. Parsons, 754 F.3d at 689 (“For example, every inmate in ADC custody is allegedly placed at risk of harm by ADC’s policy and practice of failing to employ enough doctors — an injury that can be remedied on a class-wide basis by an injunction that requires ADC to hire more doctors”). Thus, any future lack of resources or other federalism concerns invoked by the prospect of injunctive relief go only to the ultimate scope of the injunction. They do not per se forbid the district court from certifying a Rule 23(b)(2) class.
The Directors next argue that the district court erred because the plaintiffs failed to provide a specific injunction that could satisfy Rule 23(b)(2) and Rule 65(d). This argument has no basis in existing law, whether in the text of the Federal Rules or in our precedent. Plaintiffs do not need to specify the precise injunctive relief they will ultimately seek at the class certification stage. Instead, as we have explained before, Rule 23(b)(2)
ordinarily will be satisfied when plaintiffs have described the general contours of an injunction that would provide relief to the whole class, that is more specific than a bare injunction to follow the law, and that can be given greater substance and specificity at an appropriate stage in the litigation through fact-finding, negotiations, and expert testimony.

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Parsons, 754 F.3d at 689 n.35. In this case, the “general contours of an injunction” are enjoining DCS to abate the nine policies identified by the district court as amenable to class-wide litigation. That was enough. A more specific injunction will depend on further fact-finding and what claims the plaintiffs actually prove through further litigation.
In sum, the district court did not err or abuse its discretion in its rulings on standing, commonality, typicality, and uniform injunctive relief. We affirm the district court’s certification of the General Class.
B.
We next consider the Non-Kinship Subclass. The district court certified a class of “[a]ll members in the General Class who are not placed in the care of an adult relative or person who has a significant relationship with the child.” As with the General Class, the plaintiffs’ legal theory was that this subclass was denied due process of law under the Fourteenth Amendment when Director McKay’s statewide practices and policies placed them at substantial risk of harm.
We begin our Non-Kinship Subclass inquiry with standing. Once more, the relevant question is whether B.K. has standing to challenge the allegedly unconstitutional policies and practices affecting the subclass. See Melendres, 784 F.3d at 1262. Once more, we conclude that B.K. has standing to bring this subclass’s due process claim. B.K. has alleged and presented evidence that she has been separated from her siblings, prevented from seeing her mother, placed in an inappropriate group home, and placed in temporary housing for long periods of time. B.K. has also presented evidence, as we have previously discussed, that she has serious behavioral and medical concerns requiring attention from her custodian. B.K. has thus alleged and provided

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evidence that, as a child in DCS custody, she faces a risk of harm from DCS policies and practices that inadequately provide for children who do not have available kinship placements. Consistent with “the manner and degree of evidence required at th[is] . . . stage[] of litigation” to prove standing, Lujan, 504 U.S. at 561, these allegations and evidence describe imminent, concrete injuries — fairly traceable to the alleged state-wide practices and redressable by abatement of those practices. The district court did not err by concluding that B.K. has standing.
There is little else to add about this subclass that we have not already said about the General Class. The Directors’ brief does not suggest a reason why the Non-Kinship Subclass would fail if the General Class succeeds, and we “will not manufacture arguments for an appellant.” Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994). We therefore confine our review to whether, under the same challenges articulated in our foregoing discussion of the General Class, the district court abused its discretion by certifying the Non-Kinship Subclass.
We conclude that the district court did not abuse its discretion. The district court identified the following statewide practices affecting the Non-Kinship Subclass: (1) excessive use of emergency shelters and group homes; (2) unnecessary separation of siblings; and (3) placement of children far from home. As with the General Class, commonality, typicality, and uniformity of injunctive relief were satisfied by identifying these practices because the district court will be able to determine whether the Directors have an unconstitutional practice of placing children in substantial risk of harm by evaluating these practices as a whole, rather than as to each individual class member. For instance, if the plaintiffs prove that state officials have a

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practice of placing children in emergency shelters for months, and that such a practice is unconstitutional, it might declare that practice unconstitutional. The district court might then enjoin the Directors to take concrete steps to meet specific placement deadlines, such as by expanding the number of foster homes. Cf. Parsons, 754 F.3d at 689 (“For example, every inmate in ADC custody is allegedly placed at risk of harm by ADC’s policy and practice of failing to employ enough doctors — an injury that can be remedied on a class-wide basis by an injunction that requires ADC to hire more doctors”). That demonstrates the requisite commonality, typicality, and uniformity of injunctive relief. It does not matter whether, at this “tentative, preliminary, and limited” phase, see Sali, 909 F.3d at 1004 (internal quotation marks and citations omitted), proving the unconstitutionality of these practices will be difficult or not. It also does not matter whether crafting appropriate injunctive relief will be difficult or not. Those merits questions, while not irrelevant to the class certification inquiry, do not preclude certification as a matter of law unless proving the answer to a common question or crafting uniform injunctive relief will be impossible. Otherwise, we commit class certification decisions to the district court’s discretion, and we hold there is no “clear error of judgment” here that shows an abuse of that discretion. See id. at 1002.
We therefore affirm the district court’s certification of the Non-Kinship Subclass.
C.
We last consider the Medicaid Subclass. The district court certified a class of “[a]ll members of the General Class who are entitled to early and periodic screening, diagnostic, and treatment services under the federal Medicaid statute.” The Directors argue that this subclass lacks commonality,

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typicality, uniformity of injunctive relief, and that the class lacks standing. The Directors also argue that the plaintiffs have failed to prove sufficiently the factual bases for those requirements.
1.
Once again, we begin our analysis with standing. The relevant question is whether B.K. has suffered, or will imminently suffer, a concrete injury, caused by the Directors’ failure to timely provide her with EPSDT services, and redressable by a favorable court decision. See Melendres, 784 F.3d at 1262. These elements must be supported by “the manner and degree of evidence required at th[is] successive stage[] of the litigation,” Lujan, 504 U.S. at 561, i.e., tentative class certification. At this “tentative, preliminary, and limited” stage we have held strictly admissible evidence is not required, see Sali, 909 F.3d at 1004 (internal quotation marks and citations omitted), and we have indicated that plaintiffs can meet their evidentiary burden in part through allegations when the allegations are detailed and supported by additional materials, see Parsons, 754 F.3d at 683 (concluding that plaintiffs met evidentiary burden through “four thorough and unrebutted expert reports, the detailed allegations in the 74-page complaint, hundreds of internal ADC documents, and declarations by the named plaintiffs”).
Here, B.K. alleges that she has been “deprived of needed physical and mental health care,” including by failures to ensure that she obtained glasses, to ensure she received orthopedic shoes, to have her seen by a dentist, to provide her with psychological evaluations, and to provide her with counseling. She also alleges that the Directors have “a practice of failing to provide members of the Medicaid Subclass with the screening, diagnostic and treatment

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services required under the EPSDT provisions of the Medicaid Act.” These allegations, if true, would demonstrate a concrete injury caused by the failure to receive EPSDT services timely as well as “a sufficient likelihood that [s]he will again be wronged in a similar way,” which would be redressable by an injunction ordering the Directors to abate the policies and/or practices that caused the delivery failure. See Haro v. Sebelius, 747 F.3d 1099, 1108 (9th Cir. 2014) (quotation marks and citation omitted); see also Armstrong v. Davis, 275 F.3d 849, 861 (9th Cir. 2001) (abrogated on other grounds by Johnson v. California, 543 U.S. 499 (2005)) (explaining that for purposes of standing to seek injunctive relief, “the plaintiff may demonstrate that the harm is part of a pattern of officially sanctioned behavior, violative of the plaintiffs’ federal rights,” and that “where the defendants have repeatedly engaged in the injurious acts in the past, there is a sufficient possibility that they will engage in them in the near future” (alterations and quotation marks omitted)). However, at this stage of the litigation allegations alone are insufficient to meet B.K.’s burden. We therefore examine whether she has submitted sufficient evidence to support her standing to bring this claim.
The confidential medical and placement evidence in the record is thin, but we conclude that it is sufficient to corroborate the allegations at this stage. B.K.’s allegations are supported by materials suggesting that she has in fact been denied the services she alleges she is entitled to but has not received. B.K. has also submitted evidence suggesting that these practices have continued over time and may occur again. B.K. therefore has standing to bring her Medicaid claim. To the extent the Directors are correct that these facts are wrong, that issue may be considered by the district court on remand. On appeal, however, the materials in the record adequately support B.K.’s standing. We therefore proceed to

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considering whether the Medicaid Subclass was properly certified with B.K. as class representative.
2.
We begin our class certification analysis with commonality. The Medicaid Subclass poses different questions from the General Class and Non-Kinship Subclass in this regard. Unlike the due process claims, which were clearly alleged on a substantial risk of harm theory, the foundation of the plaintiffs’ legal theory for the Medicaid claim was somewhat opaque at class certification, and it remains opaque on appeal. In addition, while the ultimate success of any Medicaid theory is irrelevant at this stage, merits questions nonetheless matter at class certification to the extent necessary to assess whether Rule 23 has been satisfied. See Wal-Mart, 564 U.S. at 351. We therefore cannot affirm the Medicaid Subclass certification without first carefully examining the nature of the plaintiffs’ claim under the Medicaid Act.
As we explained in our recitation of the facts, Medicaid is “a cooperative federal-state program through which the federal government provides financial assistance to states so that they can furnish medical care to low-income individuals.” Cal. Ass’n of Rural Health Clinics, 738 F.3d at 1010. States operate Medicaid plans that must conform with the federal Medicaid statutes and regulations, and in certain instances beneficiaries can enforce those federal requirements through a private action. Id. at 1010, 1013. One of these federal requirements is that state plans must provide medical assistance to children within their care. 42 U.S.C. § 1396a(a)(10)(A)(i)(I). This medical assistance includes EPSDT services, id. § 1396d(a)(4)(B), which are defined to include regular screenings, vision services, dental services, hearing services, and “[s]uch other necessary health care,

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diagnostic services, treatment, and other measures described in subsection (a) of [section 1396d] to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services,” id. § 1396d(r). States must ensure that EPSDT services provided are “reasonably effective,” and, while they may delegate provision of such services to other organizations, “the ultimate responsibility to ensure treatment remains with the state.” Katie A., ex rel. Ludin v. Los Angeles Cty., 481 F.3d 1150, 1159 (9th Cir. 2007). States must also ensure that children receive EPSDT services “promptly” and “without any delay caused by the agency’s administrative procedures.” 42 C.F.R. § 435.930(a).
In their complaint, the plaintiffs alleged that the Directors violated the Medicaid Act by failing to provide EPSDT services timely. Although alleged as one claim, there are two possible legal theories that could support it. First, the plaintiffs might demonstrate that the Directors failed to provide statutorily mandated EPSDT services. See Katie A., 481 F.3d at 1159. Second, the plaintiffs might demonstrate that, even if all required services were eventually provided, the Directors failed to provide the services with reasonable promptness. See 42 C.F.R. § 435.930(a); see also Kessler v. Blum, 591 F. Supp. 1013, 1032–33 (S.D.N.Y. 1984) (certifying class based on unreasonably long delays in providing services to all New York State residents). The plaintiffs here alleged both that the Directors had a practice of failing to provide EPSDT services and a practice of failing to provide EPSDT services with reasonable promptness, and the district court reasoned that commonality existed because it could adjudicate whether Arizona’s “foster care system’s practices establish a pattern of non-compliance.”

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We hold that the district court abused its discretion by certifying the Medicaid Subclass based on an apparent misconception of the legal framework for such a claim. Throughout this litigation, the plaintiffs’ class certification argument has rested on a misunderstanding of the Medicaid Act. In the Eighth Amendment context, and in the due process context relevant to the General Class and NonKinship Subclass, proving a substantial risk of harm is all that is necessary to prove the claim. See Parsons, 784 F.3d at 677 (“[A] prison official’s deliberate indifference to a substantial risk of serious harm to an inmate violates the Eighth Amendment” (quotation marks and citation omitted)). The same is not true of a claim under the Medicaid Act, which must be based on acts or omissions by the state that actually violate the requirements imposed by the Medicaid Act. Yet the plaintiffs have both here and in the district court premised their arguments on the reasoning that proving risk alone establishes an EPSDT claim. Nothing in the text of the Medicaid Act or its accompanying regulations supports this approach because neither suggests that being at risk of not receiving Medicaid services is itself a Medicaid violation. The most natural reading of the Act and our precedents is that a violation occurs when EPSDT services have failed to be provided in a timely manner. See Katie A., 481 F.3d at 1157 (“In general, the EPSDT provisions require only that the individual services listed in § 1396d(a) be provided”); 42 C.F.R. § 435.930(a). The plaintiffs have thus conflated the commonality analysis for their due process claims with the commonality analysis for their Medicaid claims by erroneously importing the “substantial risk of harm” standard from Parsons without considering the distinct nature of the Medicaid Act.
The district court’s analysis on this point appears to have followed the same reasoning as was offered by the plaintiffs.

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The district court did discuss commonality in this case by referring to common questions that were tethered to the Medicaid Act in particular. But the court identified those common questions as “whether [DCS and AHCCCS’s] practices . . . failed to provide timely and adequate access to . . . services; [] failed to coordinate care to ensure timely medically necessary . . . treatment . . . ; and [] failed to build and maintain an adequate capacity and infrastructure of mental health providers and therapeutic placements.” Without further findings on the policies or practices that caused these failures, it is unclear whether the Medicaid claim can be litigated class-wide, because it is not clear whether these failures caused the same deprivations of services or risks of such deprivations across the whole subclass, or whether some categories of children were deprived services while others were not.4 The district court’s class certification order thus rests on a legal error, which always constitutes an abuse of discretion. See Sali, 909 F.3d at 1002.
The plaintiffs nonetheless contend that class certification should be upheld because a similar, but distinct, risk theory supports the class. Specifically, the plaintiffs argue that, because a plaintiff can have standing to challenge a statutory violation before the violation has occurred, see Cent. Delta Water Agency v. United States, 306 F.3d 938, 949 (9th Cir. 2002), the class may be certified based on a common

4 Relatedly, it is not clear that the district court specifically considered whether B.K. is typical of those in the Medicaid Subclass, and thus whether Rule 23’s typicality requirement is satisfied with respect to the Medicaid claim. The court concluded only that “every child in the foster care system under state custody is highly likely to require medical care” without addressing whether every other child had, like B.K., been denied adequate medical care or was subject to an imminent risk of a statutory violation.

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“significant risk” of an imminent Medicaid violation to all class members, see id. (identifying “significant risk” as the correct standard when a plaintiff challenges a future statutory violation). Under this theory, the plaintiffs argue, it does not matter whether risk proves a completed Medicaid violation because they can obtain injunctive relief based on risk alone.
As a conceptual matter, we agree with the plaintiffs that Rule 23’s commonality requirement can be satisfied in a statutory case by a common risk of a future violation that flows from the same state-wide policy or practice. As explained above, the relevant question for commonality is whether every child in the Medicaid Subclass is subjected to the same state-wide policy or practice that violates the Medicaid Act.5 There are two ways that this could occur. First, the policy or practice could be facially invalid, such as by directly contravening the Medicaid Act. This theory has not been presented as the basis for commonality in this case. Second, the policy or practice could expose every child in the subclass to a significant risk of an imminent future Medicaid violation. Under this theory, the plaintiffs are correct that they may challenge the Medicaid violation before it has taken place, so long as the requisite “significant risk” exists, so commonality may exist based on a finding that all class members are subjected to the same risk. See id.
The plaintiffs’ argument nonetheless fails, however, because the district court did not make factual findings or

5 By this we do not hold, and our opinion should not be read to imply, that the plaintiffs must show that they will prevail on their claim of a Medicaid violation at the class certification stage. Rather, they must show only that, if they do prevail on the merits, they will be able to prevail class-wide.

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exercise its discretion based on this understanding of commonality when it certified the Medicaid Subclass. Nowhere in its order is there a factual finding that every subclass member was subject to an identical “significant risk” of a future Medicaid violation that would support injunctive relief. True, we could perhaps infer that such a finding was made because the district court exercised its discretion to certify the class after correctly explaining that “central to the claim here is the question of whether practices by [DCS] and AHCCCS failed to adhere to the Medicaid statute.” But we are skeptical we should do so in light of the legal error we have identified, which appears intertwined with the district court’s decision to certify this subclass. Moreover, as an appellate body we cannot presume that the district court would have made this finding or exercised its discretion to certify the class had it considered this legal theory for commonality, and we will not supplant its discretion by making that determination for ourselves. We therefore vacate the Medicaid Subclass and remand for further proceedings. 6 We emphasize that, while we have

6 The partial dissent argues that vacatur is not warranted because “errors of law that do not affect the district court’s discretionary decision can be disregarded.” The partial dissent thus argues that we should uphold the Medicaid Subclass on the alternative risk theory presented by the plaintiffs. But, as we have explained, doing so would substitute the district court’s role in certifying the class with our role in reviewing certification on appeal. The record does not permit us to infer what the district court must have found as to the Medicaid Subclass by extrapolation from the General Class.
The partial dissent suggests that we can make such an inference because “B.K. challenges the exact same state-wide policies that create the exact same risk of not receiving the exact same medical services,” and states that the “only difference” between the class claims is that “to obtain an injunction under the Medicaid statute, B.K. does not have to prove deliberate indifference, as she must to obtain an injunction under

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vacated class certification based on the nature of the litigation to date, nothing in our opinion should prevent the district court from making new factual findings and exercising its discretion to recertify the Medicaid Subclass on remand, if it determines that such action would be appropriate.
All parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.

the Due Process Clause.” The plaintiffs’ counsel did make that representation about the class claims at oral argument. However, the record belies counsel’s assertion. B.K.’s claim on behalf of the General Class challenged those harms cognizable under the due process clause for medical deficiencies and the failure to conduct timely investigations into reports of abuse or neglect, while B.K.’s claim on behalf of the Medicaid Subclass challenged those harms cognizable under the Medicaid Act for EPSDT deficiencies. From these divergent claimed harms, the district court identified divergent common questions: the common questions binding the General Class were the constitutionality of the Directors’ failure to provide physical and dental care, failure to provide mental and behavioral health care, and failure to conduct investigations timely, while the common questions binding the Medicaid Subclass were the legality of the Directors’ failure to provide timely and adequate access to EPSDT services, failure to coordinate care to ensure timely EPSDT services, and failure to build and maintain an adequate capacity of mental health providers and therapeutic placements. The class claims are thus not the same, and they cannot be treated the same for purposes of class certification. Only a separate class certification analysis, recognizing the difference between the due process claims and the Medicaid claim as we have explained in this opinion, and making factual findings in conformity with that legal framework, will ensure that “after a rigorous analysis, . . . the prerequisites of Rule 23(a) have been satisfied.” See Wal-Mart, 564 U.S. at 350–51 (citation omitted).

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ADELMAN, District Judge, concurring in part and dissenting in part:
I concur in all parts of the majority opinion except for Part III.C.2, in which the majority concludes that the district court abused its discretion by certifying the Medicaid subclass. According to the majority, the district court abused its discretion because it made an error of law when it assumed that a state-wide policy or practice that exposes all members of the proposed subclass to a substantial risk of not receiving Medicaid services violates the Medicaid statute. But the answer to the legal question of whether exposure to a risk of harm violates the Medicaid statute does not affect class certification in this case, where the class seeks only injunctive relief. So the district court’s potential error of law did not affect its application of the Rule 23 standards, and therefore any such error did not result in an abuse of discretion. Moreover, the district court made findings of fact that support its decision to certify the Medicaid subclass, and those findings are not clearly erroneous. Accordingly, I would affirm the district court’s certification of this subclass.
I.
The majority affirms the district court’s certification of a class of Arizona foster children who seek to enjoin, under the Due Process Clause, certain state-wide policies that allegedly expose them to a substantial risk of not receiving certain medical services. Oddly, the majority then vacates the district court’s certification of a subclass of the same children who seek to enjoin the exact same policies under the Medicaid statute. Under the majority’s approach, the district court properly certified, under the Due Process Clause, a class of all foster children who challenge the state’s allegedly subjecting them to a substantial risk of not receiving “timely access to health care, including

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comprehensive evaluations, timely annual visits, semiannual preventative dental health care, adequate health assessments, and immunizations.” Maj. op. at 21. Yet the majority concludes that the district court erred in certifying a subclass of these children who seek to enjoin the same conduct under the Medicaid statute, even though Medicaid requires the state to provide them with those very same medical services. See 42 U.S.C. § 1396d(r) (defining early and periodic screening, diagnostic, and treatment services to include regular health, dental, and vision screening and appropriate immunizations).
According to the majority, this contradictory result is required because the district court misunderstood the difference between a claim under the Due Process Clause and a claim under the Medicaid statute. Under the Due Process Clause, exposure to a substantial risk of harm is itself a violation of law, even if the harm does not ultimately occur. Maj. op. at 34. In contrast, under the Medicaid statute, a violation is not complete until a child is denied required medical services (or fails to receive the services at the required time). Id.
I agree with the majority that this is indeed a difference between a claim under the Due Process Clause and a claim under the Medicaid statute. However, this difference has no relevance to class certification in this case, in which the plaintiffs seek only injunctive relief. As the majority acknowledges, a plaintiff may seek injunctive relief to prevent a statutory violation before it occurs. Maj. op. at 36. And that is exactly what the plaintiffs are trying to accomplish with the Medicaid subclass: they are trying to prevent Medicaid violations before they occur. The way they are trying to do this is by obtaining a single injunction that requires the defendants to do things, such as hire more

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caseworkers, that will ensure that all children receive the services to which they are entitled under Medicaid. Thus, the claims of the Medicaid subclass present common questions that can be answered in one stroke. For example, either Arizona employs enough caseworkers to ensure that all children receive the EPSDT services required by Medicaid, or it does not; there is no need for a child-by-child inquiry to determine whether Arizona’s staffing policies expose all children in Arizona’s custody to a substantial risk of not receiving those services. Cf. Parsons v. Ryan, 754 F.3d 657, 680 (9th Cir. 2014) (“Either ADC employs enough nurses and doctors to provide adequate care to all of its inmates or it does not do so; there is no need for an inmate-by-inmate inquiry to determine whether all inmates in ADC custody are exposed to a substantial risk of serious harm by ADC staffing policies.”). If the plaintiffs prove that Arizona does not employ enough caseworkers, then a single injunction requiring the state to hire more caseworkers will remove the substantial risk of Medicaid violations.
The situation would be different if the members of the Medicaid subclass sought damages. Because exposing a child to a risk of not receiving required Medicaid services does not itself violate the child’s rights under Medicaid, the child could not seek damages until services were delayed or denied. But under the Due Process Clause, the child could seek at least nominal damages for a past exposure to a substantial risk of harm. Thus, if the district court had certified damages classes under both the Due Process Clause and the Medicaid statute, the majority would be right to vacate certification of the Medicaid subclass. To award damages under the Medicaid statute, the district court would have to review the facts applicable to each individual class member to determine whether he or she actually sustained a Medicaid violation—there would be no common question

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that could be answered for all class members in one stroke. But again, in this case, where the plaintiffs seek only injunctive relief, there are common questions that can be answered in one stroke: whether the challenged policies— including failing to hire enough caseworkers—subject all children in the foster care system to a substantial risk of not receiving required services, such as timely immunizations. Thus, the difference in what the plaintiffs must show to prove violations of the Due Process Clause and the Medicaid statute is not relevant to certification of the proposed injunction classes.
The majority concludes that vacatur of the Medicaid subclass is required because Ninth Circuit cases hold that “an error of law is a per se abuse of discretion.” Maj. op. at 13. The majority reads too much into this language. The majority, in effect, reads this language to mean that if a district judge misstates any legal principle in the course of stating its reasons for a discretionary decision, then the appellate court has no choice but to vacate the decision and remand for a do-over. But that cannot be what the language means. Instead, the language must mean that when a district court errs in its understanding of the legal standards that govern its discretionary decision, the resulting discretionary decision must be viewed as an abuse of discretion. But errors of law that do not affect the district court’s discretionary decision can be disregarded.
For example, if in this case the district court wrote that the defendants could be liable under the Due Process Clause if the plaintiffs proved that they were negligent, the court would have misstated the law, for, under the Due Process Clause, the defendants could be liable only if the plaintiffs proved deliberate indifference. But this error of law would not have affected the district court’s discretionary decision

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to certify the class. That is so because the mental state for a due-process violation is not an element that affects commonality or any other class-certification requirement— the defendant’s mental state is amenable to class-wide proof regardless of whether it is negligence or deliberate indifference. Thus, even if the district court identified the wrong mental state during class certification, it would not follow that the court abused its discretion in certifying a class under the Due Process Clause. Of course, the district court would commit reversible error if it later granted relief to the class based on a negligence theory, but in that case, we would reverse the judgment granting relief to the class—we would not reverse the district court’s order certifying the class.
The district court’s supposed legal error in this case is no different than the district court’s legal error in my example. Because the Medicaid subclass does not seek damages, it does not matter to class certification that a Medicaid violation does not occur until services are delayed or denied. Thus, even if the district court thought that exposure to a risk of not receiving services violates the Medicaid statute, it would not have made an error of law that affected its application of the Rule 23 standards to the facts of this case.
II.
The majority acknowledges that the district court identified common questions that are “tethered to the Medicaid Act in particular.” Maj. op. at 35. But the majority then faults the district court for failing to make “further findings” that clarify “whether [the challenged state-wide policies and practices] caused the same deprivations of services or risks of such deprivations across the whole subclass, or whether some categories of children were deprived of services while others were not.” Id. at 35. This

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is a curious statement. The majority seems to be saying that the district court failed to find that the challenged policies expose all children in the Medicaid subclass to a substantial risk of not receiving timely access to health care. But that flatly contradicts the majority’s reasons for affirming the district court’s certification of the General Class. There, the majority found that the district court properly certified the General Class because the question of whether the defendants “fail[ed] to provide timely access to health care”—and thus exposed all foster children to a substantial risk of not receiving that health care—could be answered in one stroke. Id. at 21. As I noted above, all members of the proposed Medicaid subclass are also members of the General Class, and the health care at issue in the claims of the General Class are services required by the Medicaid statute. Thus, if, as the majority concludes, the district court found that the defendants’ policies and practices expose all children in the General Class to a substantial risk of not receiving those services, then it necessarily also found that those same policies and practices expose all children in the Medicaid subclass to a substantial risk of not receiving those services. Therefore, the district court made the findings necessary to support its decision to certify the Medicaid subclass.
The majority also expresses concern over whether the district court made the findings necessary to support its conclusion that B.K. is typical of those in the Medicaid subclass. The majority states that the district court failed to address “whether every other child had, like B.K., been denied adequate medical care or was subject to an imminent risk of a statutory violation.” Id. at 35 n.4. But whether other children in the class had been denied adequate medical care is irrelevant, since the class is not seeking to remedy past violations. Moreover, “imminent risk of a statutory violation” is a legal concept that governs standing, not class

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certification. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The majority agrees that because B.K. has standing to seek injunctive relief on behalf of the Medicaid subclass, the standing inquiry ends there and there is no need to separately consider whether each class member has standing. Maj. op. at 16, 30. Thus, the majority again contradicts its own reasoning when it faults this district court for failing to make findings showing that every child in the Medicaid subclass is at “imminent risk” of a Medicaid violation.
I also struggle to discern how, in the majority’s view, B.K.’s claim for injunctive relief could be “typical” of the claims of all foster children in Arizona for purposes of the Due Process Clause but not for purposes of the Medicaid statute. Again, I emphasize that, under both the Due Process Clause and the Medicaid statute, B.K. challenges the exact same state-wide policies that create the exact same risk of not receiving the exact same medical services. The only difference is that, to obtain an injunction under the Medicaid statute, B.K. does not have to prove deliberate indifference, as she must to obtain an injunction under the Due Process Clause. It is thus logically impossible for B.K.’s claim to be typical of those in the class for purposes of the Due Process Clause but not for purposes of the Medicaid statute.
III.
The majority agrees that “Rule 23’s commonality requirement can be satisfied in a statutory case by a common risk of a future violation that flows from the same state-wide policy or practice.” Maj. op. at 36. In this case, the members of the Medicaid subclass allege that they are subject to a common risk of not receiving required Medicaid services that flows from the same state-wide policies and practices, including failing to hire enough caseworkers. Yet here the

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majority reasons that we must vacate the district court’s certification of the Medicaid subclass “because the district court did not make factual findings or exercise its discretion based on this understanding of commonality when it certified the Medicaid subclass.” Maj. op. at 36–37.
I am not sure what the majority means when it says that the district court did not “exercise its discretion based on this understanding of commonality.” The district court exercised its discretion to certify a subclass of all children who are eligible for certain Medicaid services after finding that the subclass’s claim presents a common question that can be answered for all subclass members in one stroke. The majority does not conclude that, in making this finding, the district court erroneously applied Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), or any other case on commonality. Thus, the district court had a proper “understanding of commonality” when it exercised its discretion to certify this subclass.
Moreover, the district court actually made the findings of fact necessary to support its finding of commonality for the Medicaid subclass. The court found that the plaintiffs were challenging “several statewide practices affecting the proposed Medicaid Subclass,” including excessive caseworker caseloads and failure to properly coordinate services and monitor service providers. The court also found that the validity of these practices could be determined in one stroke and without making individualized inquiries into any specific child’s medical diagnosis or treatment. Thus, the district court correctly determined that the subclass could be certified for purposes of seeking injunctive relief against the challenged policies.
Although the majority correctly notes that the district court did not expressly state that every subclass member is

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subject to an identical “significant risk” of a future Medicaid violation, this does not require that we vacate certification of the subclass. Like “imminent risk,” “significant risk” is a legal concept that governs standing, not class certification, see Cent. Delta Water Agency v. United States, 306 F.3d 938, 949 (9th Cir. 2002), and the majority agrees that B.K. has standing to seek injunctive relief against the challenged state-wide policies under the Medicaid statute. The majority expressly states that the district court correctly found that B.K. has standing to seek injunctive relief against the defendants’ policies because they expose her to a risk of not receiving adequate medical care in the future. Maj op. 17. Thus, the majority agrees that the district court made the factual findings necessary to support standing.
As for class certification, there is no requirement that the district court find that every subclass member is exposed to an identical significant risk of a future Medicaid violation. What the district court must find is that the plaintiffs’ claim involves an allegation that all subclass members are exposed to a risk of a future Medicaid violation, and that the truth of this allegation can be decided for all subclass members in a single stroke. See Parsons, 754 F.3d at 678 (identifying the “common contentions” as “whether the specified statewide policies and practices” to which the class members are all subjected “expose them to a substantial risk of harm”). Obviously, the defendants dispute that their policies are deficient and will try to show during the merits phase of the case that they properly care for all children and therefore expose none of them to a substantial risk of not receiving medical care. The plaintiffs do not have to prove, at the classcertification stage, that the defendants’ policies are in fact deficient. What the plaintiffs must do at class certification is show that the question of whether the policies are deficient can be resolved on a class-wide basis. And here, the district

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court found that the plaintiffs did that. The court expressly found that “[e]ven if health issues may differ, every child in the [DCS] custody is necessarily subject to the same medical, mental health, and dental care policies and practices.” The court noted that “[a]ny one child could easily fall ill, be injured, need treatment, require a diagnostic, need emergency care, crack a tooth, or require mental health treatment.” Thus, the district court found that “every single child in the foster care system faces a substantial risk of serious harm” if DCS policies fail to ensure the delivery of appropriate medical care to children in the system.
It is true that the district court made the above findings in the context of certifying the General Class. But to repeat: every child in the Medicaid subclass is also a member of the General Class, and both classes challenge the exact same policies involving the exact same medical services. Thus, if the challenged policies subject every child in the General Class to a substantial risk of not receiving medical services, they necessarily also subject every child in the Medicaid subclass to a substantial risk of not receiving those services. Therefore, the district court’s fact-finding supports its certification of both the General Class and the Medicaid subclass.
IV.
In sum, the district court concluded that the claims of the Medicaid subclass involve common contentions that may be resolved in one stroke: whether the challenged state-wide policies and practices subject all subclass members to a substantial risk of not receiving services required by the Medicaid statute. In reaching this conclusion, the district court did not err in applying the commonality standard, base its conclusion on clearly erroneous findings of fact, or otherwise abuse its discretion. Accordingly, I respectfully

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dissent from the majority’s vacatur of the district court’s certification of the Medicaid subclass.

 
 Case 2:15-cv-00185-ROS Document 430 Filed 07/31/19 Page 1 of 24

1 Joseph Mais (005470) Shane Swindle (011738)
2 PERKINS COIE LLP

3

2901 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012-2788

4 T: (602) 351-8000 F: (602) 648-7000
5 jmais@perkinscoie.com

6 sswindle@perkinscoie.com

7 Daniel J. Adelman (011368)

8 Anne C. Ronan (006041) ARIZONA CENTER FOR LAW IN

9 THE PUBLIC INTEREST

10

514 West Roosevelt Street Phoenix, Arizona 85003

11 T: (602) 258-8850

F: (602) 258-8757 12 danny@aclpi.org

13 aronan@aclpi.org

Harry Frischer (admitted pro hac vice) Aaron Finch (admitted pro hac vice) Daniele Gerard (admitted pro hac vice) CHILDREN’S RIGHTS, INC. 88 Pine St., Suite 800 New York, New York 10005 T: (212) 683-2210 F: (212) 683-4015 hfrischer@childrensrights.org afinch@childrensrights.org dgerard@childrensrights.org

14 Attorneys for Plaintiffs

15

16

UNITED STATES DISTRICT COURT

17

DISTRICT OF ARIZONA

18 B.K. by her next friend Margaret No. 2:15-cv-00185-PHX-ROS
19 Tinsley, et al.

20 21 v.

Plaintiffs,

Plaintiffs’ Motion and Memorandum of Points and Authorities in Support of Certification of the Medicaid

22

Subclass

Gregory McKay, in his official capacity

23 as Director of the Arizona Department of ORAL ARGUMENT REQUESTED

24 Child Safety, et al.

(Assigned to the Honorable Roslyn O.

25

Defendants.

Silver)

26

27

28

Case 2:15-cv-00185-ROS Document 430 Filed 07/31/19 Page 2 of 24

1

Table of Contents

2 I. Motion for Class Certification ................................................................................... 1

3 II. Introduction and Procedural History....................................................................... 1
4 III. Defendants’ Obligations Under Medicaid ............................................................... 3
5 IV. Legal Standard for Class Certification .................................................................. 10
6
7 V. The Medicaid Subclass Should Be Recertified ...................................................... 11

8 A. Plaintiffs Satisfy the Commonality Requirement ................................................ 11

9

1. The Commonality Standard .............................................................................. 11

10

B. Named Plaintiff B.K.’s Claims Are Typical........................................................ 14

11

C. The Medicaid Subclass Satisfies the Numerosity and

12

Adequacy of Representation Requirements and Rule 23(b)(2) ........................... 17

13

1. Plaintiffs Satisfy the Numerosity and Adequacy of

14

Representation Requirements ........................................................................... 17

15

2. Plaintiffs Satisfy Rule 23(b)(2) ......................................................................... 18

16 VI. Conclusion ............................................................................................................... 19

17

18

19

20

21

22

23

24

25

26

27

28

i

Case 2:15-cv-00185-ROS Document 430 Filed 07/31/19 Page 3 of 24

1

Table of Authorities

2 CASES Amgen Inc. v. Conn. Ret. Plans & Tr. Funds,
3 133 S. Ct. 1184 (2013)................................................................................................... 11

4 Hanlon v. Chrysler Corp., 5 150 F.3d 1011 (9th Cir. 1998) ................................................................................. 14, 17

6 Haro v. Sebelius,

7

747 F.3d 1099 (9th Cir. 2014) ................................................................................. 16, 17

8 Katie A., ex rel. Ludin v. Los Angeles Cty., 481 F.3d 1150 (9th Cir. 2007) ..................................................................................... 4, 5
9
10 Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir. 1997) .......................................................................................... 18
11 Parsons v. Ryan,
12 754 F.3d 657 (9th Cir. 2014) .................................................................................. passim
13 Rannis v. Recchia,
14 380 F. App’x 646 (9th Cir. 2010) .................................................................................. 17

15 Rosie D. v. Romney, 16 410 F.Supp.2d 18 (D. Mass. 2006) .................................................................................. 4

17 Wal-Mart Stores, Inc. v. Dukes,

18

131 S.Ct. 2541 (2011).............................................................................................. 10, 11

19 STATUTES 42 U.S.C. § 1396a(a)(1) ...................................................................................................... 5
20 21 42 U.S.C. § 1396a(a)(43)(C) ............................................................................................... 4

22 42 U.S.C. § 1396d(a)(13) .................................................................................................... 4

23 42 U.S.C. § 1396d(r) ....................................................................................................... 4, 8

24 A.R.S. § 36-2906 ................................................................................................................. 5
25 A.R.S. § 8-512 ..................................................................................................................... 5 26
RULES 27 Fed. R. Civ. P. 23 ....................................................................................................... passim
28

ii

Case 2:15-cv-00185-ROS Document 430 Filed 07/31/19 Page 4 of 24

1

I. Motion for Class Certification

2

Named Plaintiff B.K., by her Next Friend and through her attorneys, respectfully

3 moves the Court for an order pursuant to Rule 23(a) and 23(b)(2) of the Federal Rules of
4

5 Civil Procedure certifying a subclass of children who are or will be in the legal custody of

6 the Arizona Department of Child Safety (“DCS”) due to a report or suspicion of abuse or

7 neglect and who are entitled to early and periodic screening, diagnostic, and treatment
8
9 (“EPSDT”) services under the federal Medicaid statute.

10

II. Introduction and Procedural History

11

This action concerns the policies and practices of DCS and the Arizona Heath

12 Care Cost Containment System (“AHCCCS”)1 that subject thousands of Arizona children
13

14 in foster care to the denial of medically necessary health care. Defendants have long

15 neglected to address the systemic failures that cause such defects, including inadequate
16 access to all necessary medical, dental, and behavioral health care services; failure to
17
18 coordinate care among the various state agencies and private providers that are required

19 to provide necessary care to foster children; inadequate array of therapeutic services; and

20 the failure to ensure that there are sufficient providers of behavioral health services to
21
22 meet the critical needs of foster children.

23

In September 2017, the Court granted Plaintiffs’ motion for class certification,

24 certifying three classes under Fed. R. Civ. P. 23(b)(2): (1) a general class of children who 25

26
27 1 Defendant Gregory McKay is the Director of DCS and defendant Jami Snyder is Director of AHCCCS. Collectively Director McKay and Director Snyder are referenced
28 as “Defendants.”

1

Case 2:15-cv-00185-ROS Document 430 Filed 07/31/19 Page 5 of 24

1 are or will be in the legal custody of DCS due to a report or suspicion of abuse or neglect

2 (the “General Class”), (2) a subclass of children in the General Class who are not placed
3 in the care of an adult relative or person who has a significant relationship with the child
4 5 (the “Non-Kinship Subclass”), and (3) a subclass comprised of all members of the

6 General Class who are entitled to EPSDT services under the federal Medicaid statute (the

7 “Medicaid Subclass”). (Order, Sept. 29, 2017 (Dkt. No. 363) (“Class Certification 8 9 Order”).) Defendants appealed.

10

A Ninth Circuit panel reviewed the grant of class certification and affirmed the

11 certification of the General Class and the Non-Kinship Subclass, finding that both 12
satisfied the requirements of Rule 23(a) and Rule 23(b)(2). (Opinion, Apr. 26, 2019 (Dkt. 13
14 No. 418) (“Ninth Circuit Opinion”).) However, the panel vacated certification of the

15 Medicaid Subclass and remanded for further consideration of the commonality
16 requirement under Rule 23(a). The panel found that the commonality requirement can be
17 18 satisfied in this case if there is a “common risk of a future violation that flows from the

19 same state-wide policy or practice” but declined to “supplant [this Court’s] discretion” by

20 making a factual finding that every subclass member was subject to such a risk. (Id. at
21 22 36-37.)2

23

On February 27, 2018, long before issuing its decision on class certification, the

24
25 2 Importantly, the panel did not disagree with this Court’s factual findings. To the contrary, when considering class certification of the General Class, the panel agreed that
26 B.K. had sufficiently demonstrated that she is “subject to statewide policies and practices 27 that apply equally to every member of the class.” (Ninth Circuit Opinion at 23 (holding
that the district court did not abuse its discretion in determining that the named plaintiff 28 was typical of the General Class).)

2

Case 2:15-cv-00185-ROS Document 430 Filed 07/31/19 Page 6 of 24

1 Ninth Circuit stayed further proceedings in this case in connection with its decision to

2 hear Defendants’ interlocutory appeal. (Order, Feb. 27, 2018 (Dkt. No. 412).) In the 14
3 months between Plaintiffs’ original motion for class certification and the staying of
4 5 further proceedings, the parties exchanged additional discovery, including merits expert

6 reports. Last month, following its decision on Defendants’ appeal, the Ninth Circuit lifted

7 the stay. (Order, June 11, 2019 (Dkt. No. 420).) Plaintiffs thus now bring this motion
8 9 owing to discovery available as of the day the case was stayed.3

10

This Court should recertify the Medicaid Subclass. DCS and AHCCCS have failed

11 to ensure adequate and timely provision of necessary medical services mandated by the 12
federal Medicaid statute, creating a significant risk of an imminent future violation of that 13
14 statute for youth in the State’s foster care system who are eligible for Medicaid. (See

15 Ninth Circuit Opinion at 36.)

16 III. Defendants’ Obligations Under Medicaid
17

18

Approximately 95% of the children in foster care in Arizona are eligible for

19

20 3 Much of that discovery was analyzed by Plaintiffs’ experts in their most recent expert reports, which provide further evidence that Defendants’ practices put the Medicaid

21 Subclass at risk of being denied required Medicaid services in violation of the statute.

22

(See Dkt. No. 392-1, Expert Rep. of Marci White, MSW, Dec. 5, 2017 (“White Rep.”); Dkt. No. 407-4, Rebuttal Expert Rep. of Marci White, MSW, Feb. 5, 2018 (“White

23 Rebuttal Rep.”); Dkt. No. 392-3, Expert Rep. of Steven D. Blatt, M.D., Dec. 5, 2017

(“Blatt Rep.”); Dkt. No. 407-2, Rebuttal Expert Rep. of Steven D. Blatt, M.D., Feb. 5, 24 2018 (“Blatt Rebuttal Rep.”); Dkt. No. 392-4, Expert Rep. of Paul Zurek, Ph.D., Dec. 5,

25 2017 (“Zurek Rep.”); Dkt. No. 401-1, Supp. Exhibits to the Rep. of Paul Zurek, Ph.D.,

Feb. 5, 2018 (“Zurek Supp.”); Dkt. No. 392-5, Expert Rep. of Arlene Happach, Dec. 5, 26 2017 (“Happach Rep.”); Dkt. No. 407-3, Rebuttal Expert Rep. of Arlene Happach, Feb.

27 5, 2018 (“Happach Rebuttal Rep.”); Dkt. No. 392-2, Expert Rep. of Lenette AzziLessing, Dec. 5, 2017 (“Azzi-Lessing Rep.”); Dkt. No. 407-1, Rebuttal Expert Rep. of
28 Lenette Azzi-Lessing, Feb. 5, 2018 (“Azzi-Lessing Rebuttal Rep.”).)

3

Case 2:15-cv-00185-ROS Document 430 Filed 07/31/19 Page 7 of 24

1 Medicaid.4 Under Medicaid, Arizona is required to provide EPSDT services to all of

2 these eligible children. “States must ensure that EPSDT services provided are ‘reasonably
3 effective,’ and, while they may delegate provision of such services to other organizations,
4 5 ‘the ultimate responsibility to ensure treatment remains with the state.’” (Ninth Circuit

6 Opinion at 33 (citing Katie A., ex rel. Ludin v. Los Angeles Cty., 481 F.3d 1150, 1159

7 (9th Cir. 2007).) EPSDT services include “screening, medical, vision, dental, and hearing 8 9 services as well as other necessary health treatment services.” (Class Certification Order

10 at 17 (citing 42 U.S.C. §§ 1396d(r)(1)-(5); 1396a(a)(43)(C)).) The scope of such services

11 is extremely broad. They include “any medical or remedial services . . . for the maximum 12
reduction of physical or mental disability and restoration of an individual to the best 13
14 possible functioning level.” Rosie D. v. Romney, 410 F.Supp.2d 18, 54 (D. Mass. 2006)

15 (citing 42 U.S.C. § 1396d(a)(13)). Like all Medicaid services, EPSDT services must be
16 provided with “reasonable promptness.”5 In short, the EPSDT provisions of Medicaid
17 18 require that eligible children “get the health care they need when they need it – the right

19 care to the right child at the right time in the right setting,” which is “the goal of the

20 EPSDT provision.”6 21

22

23

24

4 (See Dkt. No. 238-1, Ex. 33 at DCS-00121026, CMDP QMPI Strategic Reporting Committee Quarterly Meeting Minutes, August 19, 2014.)

25 5 Centers for Medicare & Medicaid Services, U.S. Dep’t of Health & Human Services.,

EPSDT – A Guide for States: Coverage in the Medicaid Benefit for Children and 26 Adolescents at 32 (June 2014),

27 https://www.medicaid.gov/medicaid/benefits/downloads/epsdt_coverage_guide.pdf (hereinafter “EPSDT Guide”) (citing Section 1902(a)(8) of the Social Security Act).
28 6 Id. at 1.

4

Case 2:15-cv-00185-ROS Document 430 Filed 07/31/19 Page 8 of 24

1

AHCCCS, as the state agency charged with administering Arizona’s Medicaid

2 program, is responsible for ensuring that Arizona meets this requirement. AHCCCS is
3 responsible for maintaining a network of behavioral and mental health care providers to
4 5 treat Medicaid-eligible foster children as well as maintaining a network of physical and

6 dental providers for those children.7 AHCCCS is also responsible for ensuring that

7 children are screened for medical needs at appropriate times. And AHCCCS has an 8 9 “obligation to see that the services are provided when screening reveals that they are

10 medically necessary.” Katie A., 481 F.3d at 1158.

11

DCS, as the state agency that runs Arizona’s child welfare system, is charged with

12 the custody and the care of foster children. DCS is required by statute to provide
13

14 comprehensive medical and dental services and to determine the most efficient and

15 effective way to provide medical care and behavioral health treatment to children in
16 foster care.8 DCS caseworkers are also integral to the process of ensuring that each child
17 18 receives necessary health care services. Caseworkers are required to assess a child’s

19 physical health and dental needs, and have the ultimate responsibility for ensuring that

20 the children receive the services they need. (Happach Rep. at 21-23.)9 They are 21 22 responsible for participating in the development of behavioral health treatment plans and

23 monitoring to ensure timely behavioral health services are delivered. (Happach Rep. at

24
25 7 See A.R.S. § 36-2906; 42 U.S.C. § 1396a(a)(1). 8 (Class Certification Order at 2-3 (citing A.R.S. § 8-512)); Dkt. No. 238-1, Ex. 36 at
26 DCS-00116161-62, DCS Annual Progress and Services Report for FFY 2017.) 27 9 (Dkt. No. 238-2, Ex. 39 at DCS-00133148, DCS Policy and Procedure Manual Chapter
3, Section 2.5: Out of Home Care Planning, Health Care Planning, Contact and Visitation 28 Plan); see A.R.S. § 8-512(A).)

5

Case 2:15-cv-00185-ROS Document 430 Filed 07/31/19 Page 9 of 24

1 21-22; White Rep. at 8.)

2

Because AHCCCS and DCS do not satisfy these responsibilities, however,

3 Arizona is failing to fulfill its obligation under the Medicaid statute to provide adequate
4

5 and timely physical, dental, and behavioral health care to Medicaid-eligible foster

6 children. As we show below, these problems result from Defendants’ failure to

7 coordinate among various agencies and workers; Defendants’ failure to maintain an 8 9 adequate number of service providers, particularly with regard to behavioral health

10 services; and overburdened caseworkers who do not have time to attend to the medical

11 needs of foster children. 12
The data confirm that children in foster care do not get the EPSDT services to 13
14 which they are entitled under the Medicaid statute. After conducting an analysis of data

15 maintained by DCS, Plaintiffs’ expert Paul Zurek found that many foster children have
16 not received mandated physical and dental EPSDT examinations. Specifically, more than
17 18 31% of the children in foster care received 50% or fewer of the EPSDT tests required.

19 (Zurek Rep. at 8 & Ex. 4.) In 2016 and 2017, more than one-third of the required EPSDT

20 tests were not provided, and more than 46% of children who entered foster care failed to
21 22 receive a well-child examination. (Zurek Supp. at Ex. 2, 10.)10 Paul Zurek also

23 determined that many children in foster care experience lengthy delays before receiving

24 necessary follow-up care identified in EPSDT examinations. (Zurek Rep. at 11-12 & Ex. 25

26
27 10 As a part of the screening services required by EPSDT, “[a]ll infants, children and adolescents should receive regular well-child check-ups of their physical and mental
28 health, growth, development, and nutritional status.” EPSDT Guide at 36.

6

Case 2:15-cv-00185-ROS Document 430 Filed 07/31/19 Page 10 of 24

1 14.) In July 2015, 56% of referrals were not completed after an average of 163 days. (Id.)

2

Plaintiffs’ expert Dr. Steven Blatt also reviewed Arizona’s provision of medical

3 and dental care to foster youth and determined that the state failed to provide adequate
4

5 access. (See generally Blatt Rep.) The EPSDT requirement covers regular screening

6 services designed to identify health and developmental issues as early as possible.11 Yet

7 Dr. Blatt’s analysis showed that 33% of foster children failed to either receive a required 8 9 EPSDT exam within 30 days of entering care (for those children who entered care during

10 the examination period) or receive an annual well-child exam (for those who were in care

11 during the entire examination period). (Blatt Rep. at 4.) Furthermore, the evidence
12 indicates that “children in foster care did not receive necessary screenings for
13
14 developmental delays.” (Id. at 7.) Though EPSDT services cover proper immunizations,12

15 Dr. Blatt found that for the first two quarters of 2017, less than 30% of eligible two-year-
16 olds received required immunizations. (Blatt Rep. at 9.) Dental care is also among the
17 18 services required by EPSDT,13 yet 43% of children in foster care failed to receive a

19 required dental exam. (Blatt Rep. at 4.) It is clear that Defendants are “fail[ing] to ensure

20 that children in foster care receive routine comprehensive medical and dental care as 21 22 required by EPSDT and best practice.” (Id.)

23

Defendants likewise fail to provide children in foster care with the behavioral

24 health services required by the Medicaid statute. The EPSDT provision requires periodic 25

26 27 11 EPSDT Guide at 4.
12 EPSDT Guide at 4. 28 13 EPSDT Guide at 13.

7

Case 2:15-cv-00185-ROS Document 430 Filed 07/31/19 Page 11 of 24

1 mental health screenings for all children enrolled in Medicaid and any treatment or

2 service necessary to “correct or ameliorate” mental illnesses and conditions discovered
3 by screening.14 Such treatment for mental health issues may include “hospital and clinic
4 5 services, physician services, and services provided by a licensed professional such as a

6 psychologist.”15 Plaintiffs’ expert Marci White reviewed Arizona’s behavioral and mental

7 health provisions to children in foster care and determined that “[o]n a system-wide basis, 8 9 children are not getting medically necessary services, and Defendants are not keeping

10 track of whether children receive those services.” (White Rep. at 9.)

11

Ms. White concluded that there is an inadequate array of behavioral and mental

12 health services for children in foster care, including a lack of therapeutic foster homes.
13

14 (Id. at 23-25.)16 The inadequate array of services creates barriers to accessing necessary

15 care. For example, Ms. White found “delays in accessing behavioral health services,
16 including specialized, trauma based therapy that children in foster care so desperately
17 18 need.” (Id. at 27.) Ms. White characterized the extensive delays in the provision of

19 necessary care as “red flags that the behavioral health system in Arizona is highly

20 dysfunctional and does not meet the needs of children in foster care.” (Id. at 31.)

21

22

Furthermore, Ms. White found that Defendants’ failure to coordinate behavioral

23

24 14 42 U.S.C. § 1396d(r)(5); EPSDT Guide at 2, 4.
25 15 EPSDT Guide at 10. 16 Therapeutic foster homes provide services to children whose “behavioral health needs
26 are of such a critical nature that in the absence of such services, the child may be placed
27 in a more restrictive setting, like a hospital, residential treatment center . . . or therapeutic group home.” (White Rep. at 23.) Defendants also have a practice of prematurely
28 removing children from therapeutic foster homes, resulting in further trauma. (Id. at 26.)

8

Case 2:15-cv-00185-ROS Document 430 Filed 07/31/19 Page 12 of 24

1 health services results in children not getting necessary services. (Id. at 33.) She

2 identified serious deficiencies in the Child and Family Team (CFT) process, whereby a
3 team of individuals knowledgeable about the child’s life develop a services plan to
4 5 address behavioral needs. (Id.) Ms. White found that the CFT process was hampered by

6 insufficient clinical oversight, limited participation of case managers, service plans that

7 are based on services available and not necessary services, and a lack of systematic 8 9 monitoring. (Id. at 34.) Even logs maintained by DCS show that there are “significant

10 gaps in care.” (Id. at 36.) The logs have frequent entries showing that “services were

11 unavailable, that necessary coordination was not occurring, and that there were

12 substantial delays in receiving services.” (Id.)
13

14

DCS’s overburdened caseworkers further compound these systemic failures. DCS

15 has repeatedly acknowledged that its caseworkers are laden with unmanageable
16 caseloads. (Happach Rep. at 26.) Plaintiffs’ expert Arlene Happach found that Arizona’s
17 18 children were not receiving adequate quality of care due to inattention to caseload

19 standards. (Id. at 27.) Particularly in situations where treatment requires a caseworker’s

20 consent, a caseworker’s inability to participate in the process can create unnecessary 21 22 delay. (See White Rep. at 35.) Even a 2016 annual DCS review found that caseworkers

23 could not adequately ensure that children’s medical needs were met, specifying that

24 “efforts to assess the physical health needs of children were inadequate in a third of the 25
cases and efforts to assess dental health needs were inadequate in 43% of the cases.” 26
27 (Happach Rep. at 27.) Plaintiffs’ expert Marci White also found that caseworkers’

28 excessive caseloads are “a significant factor contributing to the failure to provide

9

Case 2:15-cv-00185-ROS Document 430 Filed 07/31/19 Page 13 of 24

1 necessary and timely behavioral health services to children in foster care.” (White Rep. at

2 39.) These excessive caseloads prevent caseworkers from adequately performing critical

3 roles in obtaining EPSDT services for foster children.
4

5

IV. Legal Standard for Class Certification

6

To obtain certification, Plaintiffs must demonstrate that:

7

(1) their class is so numerous that joinder of all members is impracticable;

8 (2) there are questions of law or fact common to the class;

9

(3) the claims or defenses of the representative parties are typical of the claims or

10

defenses of the class; and

11

(4) the representative parties will fairly and adequately protect the interests of the

12

class.

13 Fed. R. Civ. P. 23(a). Upon satisfying these four requirements, the party seeking class

14 certification must also satisfy one of the sub-sections of Rule 23(b)—in this case, Rule 15
23(b)(2), which requires that “the party opposing the class has acted or refused to act on 16
17 grounds that apply generally to the class, so that final injunctive relief or corresponding

18 declaratory relief is appropriate respecting the class as a whole[.]” A party seeking class
19 certification must “‘affirmatively demonstrate his compliance with the Rule—that is, he
20
21 must be prepared to prove that there are in fact sufficiently numerous parties, common

22 questions of law or fact, etc.’” Parsons v. Ryan, 754 F.3d 657, 675 (9th Cir. 2014)

23 (quoting Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551 (2011) (emphasis
24
25 omitted). However, “[m]erits questions may be considered to the extent—but only to the

26 extent—that they are relevant to determining whether the Rule 23 prerequisites for class

27 certification are satisfied.” Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 133 S. Ct. 1184, 28

10

Case 2:15-cv-00185-ROS Document 430 Filed 07/31/19 Page 14 of 24

1 1195 (2013). Here, substantial evidence demonstrates that plaintiffs are in compliance

2 with Rule 23.17 3

4

V. The Medicaid Subclass Should Be Recertified

5

A. Plaintiffs Satisfy the Commonality Requirement

6 1. The Commonality Standard
7

8

The Medicaid Subclass satisfies the commonality requirement of Rule 23(a),

9 which necessitates that the Subclass’s claims must “depend upon a common contention”

10 whose resolution “will resolve an issue that is central to the validity of each of the claims 11 12 in one stroke.” Parsons, 754 F.3d at 675 (internal citation and quotation marks omitted);

13 see Fed. R. Civ. P. 23(a)(2). In its decision in this case, the Ninth Circuit held that

14 certification of the Medicaid Subclass would be appropriate upon a showing that the 15
Subclass is subject to policies or practices that allegedly “expose every child in the 16
17 subclass to a significant risk of an imminent future Medicaid violation.” (Ninth Circuit

18 Opinion at 36.) The existence of such a policy or practice suffices to demonstrate
19 commonality because whether the common policy or practice does in fact pose a
20 21 significant risk of an imminent future Medicaid violation is a question whose answer will

22 necessarily resolve all the Subclass’s claims in one stroke. (See id. at 36 n.5.)

23

24
25 17 In Wal-Mart Stores, Inc. v. Dukes, the Supreme Court applied “significant proof” as one way to “bridg[e] the gap” in proving evidence of systemic discrimination. 131 S.Ct.
26 at 2553. As the Ninth Circuit noted in Parsons, “[c]ourts have taken different views of 27 whether Wal-Mart’s significant proof standard applies to all class certification decisions
or only to claims alleging systemic discrimination.” 754 F.3d at 684 n.29. In any case, 28 Plaintiffs have provided “significant proof” here of compliance with Rule 23. See id.

11

Case 2:15-cv-00185-ROS Document 430 Filed 07/31/19 Page 15 of 24

1

Here, there is substantial evidence that the Medicaid Subclass is subject to such

2 practices, including:

3

 Defendants’ practice of failing to provide an adequate array of behavioral

4

health and therapeutic services for members of the Medicaid Subclass;

5

 Defendants’ practice of failing to coordinate behavioral health services for

6

members of the Medicaid Subclass;

7

 Defendants’ practice of failing to provide Medicaid Subclass members with

8

timely mental health services;

9

 Defendants’ practice of failing to provide members of the Medicaid

Subclass with timely well-child visits and immunizations; and

10

 Defendants’ practice of ineffectively coordinating and monitoring physical

11

and dental health care.

12 These practices create a significant uniform risk that Subclass members will not receive 13
necessary physical, dental, and behavioral health services, in violation of the Medicaid 14

15 statute. This Court already recognized statewide practices of Defendants that affect the

16 provision of physical and dental EPSDT services to the Medicaid Subclass, including
17 excessive DCS caseworker caseloads and ineffective coordination and monitoring of
18
19 physical and dental services by DCS. (Class Certification Order at 17.) Furthermore,

20 Plaintiffs’ experts have offered considerable evidence that Defendants’ practices put all
21 Medicaid-eligible foster children at significant risk of being denied necessary physical
22 23 and dental health care.

24

As illustrated above, Paul Zurek and Dr. Steven Blatt both found that sizeable

25 numbers of foster children are not receiving mandated EPSDT examinations. (See supra 26

27

28

12

Case 2:15-cv-00185-ROS Document 430 Filed 07/31/19 Page 16 of 24

1 § 3.)18 Dr. Blatt concluded that DCS has consistent practices of failing to provide children

2 with medical and dental assessments upon entering care, failing to provide regular and
3 routine preventative care to children in care, and failing to ensure that medical and dental
4 5 needs are met throughout children’s time in care. (Blatt Rep. at 3.) These practices not

6 only create a substantial risk of harm to the Medicaid Subclass, they also put each

7 member of the Subclass at risk of not receiving appropriate and timely physical and 8 9 dental care in violation of the EPSDT provision of the Medicaid statute.

10

With respect to behavioral health care, this Court also recognized several practices

11 that detrimentally affect the provision of mental and behavioral services to children in 12
foster care, including ineffective coordination of care between DCS and AHCCCS 13
14 contractors, AHCCCS contractors’ incomplete and out-of-date service plans, a shortage

15 of therapeutic foster care placements and services maintained by AHCCCS and DCS, a
16 shortage of residential treatment center placements maintained by AHCCCS, a shortage
17 18 of behavioral health providers maintained by AHCCCS, excessive DCS caseworker

19 caseloads, and DCS’s overuse of congregate care for children with unmet mental health

20 needs. (Class Certification Order at 17-18.)

21

22

Plaintiffs’ expert Marci White concluded that Defendants’ failure to ensure

23 adequate behavioral health care services for foster children is “systemic” and that

24 “[c]hildren in foster care simply do not get the behavioral health services they need.” 25

26 18 As this Court noted, while it is “not necessary to assess the merits of whether
27 Defendants violated the Medicaid Act beyond the question of class certification,” the expert reports “offer reliability and significant information to show state-wide practices
28 exist.” (Class Certification Order at 18 n.5.)

13

Case 2:15-cv-00185-ROS Document 430 Filed 07/31/19 Page 17 of 24

1 (White Rep. at 44.) “Defendants do not maintain the structure and systems essential to

2 ensure that children in foster care receive the services they need when they need them.
3 Defendants do not maintain a sufficient array of behavioral health services for these
4 5 children. Defendants do not coordinate the provision of services.” (Id.) Such practices

6 create a common and significant risk to each member of the Subclass of a future

7 Medicaid violation by failing to ensure the mental and behavioral health care required by 8 9 the EPSDT provision.

10

B. Named Plaintiff B.K.’s Claims Are Typical

11

Under Rule 23(a)(3), a plaintiff may represent a class if her “claims or defenses”

12 are “typical of the claims or defenses of the class.” A named plaintiff’s claims are typical
13

14 if they are “reasonably coextensive with those of absent class members; they need not be

15 substantially identical.” Parsons, 754 F.3d at 685 (quoting Hanlon v. Chrysler Corp., 150

16 F.3d 1011, 1020 (9th Cir. 1998)).
17

18

B.K. is a 14-year-old girl who has regularly struggled to get access to adequate

19 health care, including medically necessary EPSDT services. She suffers from significant

20 psychiatric diagnoses and mental health needs of which Defendants have long been 21 22 aware. (Azzi-Lessing Rep. at 1.) Plaintiffs’ expert Lenette Azzi-Lessing reviewed the

23 case file of Named Plaintiff B.K. and determined that Defendants caused harm to her by

24 failing to provide needed mental, behavioral, and physical health care. 25
Due to B.K.’s difficult mental health needs, on multiple occasions, caretakers and 26
27 clinicians recommended that she be placed in a therapeutic foster home, where foster

28 parents receive additional training and supports to handle particularly troubling

14

Case 2:15-cv-00185-ROS Document 430 Filed 07/31/19 Page 18 of 24

1 behaviors. (See Azzi-Lessing Rep. at 11, 13, 18, 39.) Unfortunately, again and again,

2 such placements were not available in a timely manner. (Id.) Ms. Azzi-Lessing concluded
3 that this failure to provide needed care stemmed from Arizona’s lack of “an adequate
4 5 array of placement settings and behavioral health services for children in foster care” and

6 that B.K.’s access to therapeutic programs was “inappropriately restricted.” (Id. at 40; see

7 also White Rep. at 43 (noting that as a result of Defendants’ systemic failures to maintain 8 9 a sufficient array of therapeutic placement alternatives, B.K. did not receive behavioral

10 health services at the time she needed them).) B.K. was “placed in a series of placements

11 that could not meet her needs,” and “B.K. disrupted from each one, and each set of 12
disrupted relationships fueled B.K.’s difficulties in the following placement.” (Azzi13
14 Lessing Rep. at 43.)

15

Ms. Azzi-Lessing also found that the State repeatedly failed to address B.K.’s

16 multiple, severe psychiatric disorders. Though at times B.K. received behavioral
17

18 coaching, counseling, and other services, “[t]here is no evidence that these services were

19 well coordinated, meaning they were less likely to be effective, and may have, at times,

20 worked at cross purposes.” (Id. at 42-43.) B.K. also did not receive consistent 21 22 psychotherapy, and group staff sometimes completely failed to transport her to her

23 therapy appointments. (Id. at 53-55.) B.K.’s frequent placement changes exacerbated the

24 issue, such that one therapist expressed concern that she kept “falling through the 25
cracks.” (Id. at 55.) One doctor noted the lack of coordination between B.K.’s foster 26
27 parents, coaches, and her counselor, which he felt hampered the effectiveness of these

28 services. (Id. at 54.) Defendants’ failure to “maintain a sufficient array of behavioral

15

Case 2:15-cv-00185-ROS Document 430 Filed 07/31/19 Page 19 of 24

1 health services” and “coordinate the provision of services” resulted in B.K. not receiving

2 the behavioral health care she needed. (See White Rep. at 44.)
3 Defendants also failed to “effectively manage and coordinate the delivery of
4 5 physical . . . health care services” to B.K. (See Blatt Rep. at 2.) For example, it took over

6 two and a half years to receive an evaluation by an orthopedist despite a limp, difficulty

7 walking, pain, and falls. (Azzi-Lessing Rep. at 2, 57.) When she was finally brought to an 8 9 orthopedist, B.K. was fitted with orthotic insoles to help her walk correctly. (Id. at 16.)

10

Evidence indicates that B.K.’s injuries stem from policies and practices of

11 Defendants. Every member of the Medicaid Subclass is subject to the same policies and 12
practices that result in delayed or inadequate access to necessary physical, dental, and 13
14 behavioral health services. As detailed supra in Section 3, Plaintiffs’ experts Dr. Steven

15 Blatt and Paul Zurek each found that significant numbers of children in foster care do not
16 receive necessary EPSDT physical and dental medical care and Plaintiffs’ expert Marci
17 18 White found that Defendants have failed to ensure that children in foster care receive

19 necessary mental and behavioral health services. These reports indicate that the practices

20 that led to failures in care for B.K. broadly reach the Medicaid Subclass as a whole, and
21 22 subject each member of the Subclass to the same risk of inadequate and untimely care.19

23 19 Additionally, the Ninth Circuit found that B.K.’s allegations of Defendants’ failures to
24 ensure adequate physical and mental health care and the medical and placement evidence
25 in the record were, together, sufficient to support standing. (Ninth Circuit Opinion at 31.) The expanded evidence now in the record and detailed above clearly establishes that B.K.
26 has experienced significant delays in access to health care, including in obtaining
27 orthopedic services and appropriate therapeutic treatment. B.K. remains in care, and therefore there is “a sufficient likelihood that [s]he will again be wronged in a similar
28 way.” See Haro v. Sebelius, 747 F.3d 1099, 1108 (9th Cir. 2014) (quotation marks and

16

Case 2:15-cv-00185-ROS Document 430 Filed 07/31/19 Page 20 of 24

1

C. The Medicaid Subclass Satisfies the Numerosity and Adequacy of

Representation Requirements and Rule 23(b)(2)

2

3

1. Plaintiffs Satisfy the Numerosity and Adequacy of Representation Requirements

4

This Court held that the Medicaid Subclass met the numerosity and adequacy of

5

representation requirements of Rule 23(a) and the Ninth Circuit declined to address those 6

7 findings on appeal. The Medicaid Subclass is clearly sufficiently numerous and the

8 Named Plaintiff and counsel meet the adequacy of representation standard.
9 Numerosity is generally satisfied when a proposed class has 40 members. See,
10
11 e.g., Rannis v. Recchia, 380 F. App’x 646, 651 (9th Cir. 2010). Based on data made

12 available during discovery, there are thousands of children in the Medicaid Subclass.20
13 Thus, plainly, these classes are “so numerous that joinder of all members is
14 15 impracticable.” Fed. R. Civ. P. 23(a)(1).

16

The adequacy of representation requirement is satisfied where (1) the named

17 plaintiffs and their counsel do not have any conflict of interest with other class members 18 19 and (2) the named plaintiffs and their counsel will prosecute the action vigorously on

20 behalf of the class. Hanlon, 150 F.3d at 1020. B.K. and her counsel “do not have conflicts

21 of interest with other class members since [B.K.] seek[s] to improve structural
22 deficiencies that affect children in DCS custody.” (Class Certification Order at 20); see
23

24

25 citation omitted). This risk is redressable by an injunction ordering Directors to abate the
policies and practices that have caused the inadequate access to health care. See id. at 26 1108-09 (finding that injunctive relief would redress the plaintiff’s injury).
27 20 (See Dkt. No. 238-1, Ex. 33 at DCS-00121026, CMDP QMPI Strategic Reporting Committee Quarterly Meeting Minutes, August 19, 2014.)
28

17

Case 2:15-cv-00185-ROS Document 430 Filed 07/31/19 Page 21 of 24

1 also Marisol A. v. Giuliani, 126 F.3d 372, 378 (2d Cir. 1997) (holding the requirement

2 satisfied where plaintiffs sought “broad based relief which would require the child
3 welfare system to dramatically improve the quality of all of its services”).21 There can be
4 5 no doubt that B.K., her counsel, and the Next Friends have already and will continue to

6 prosecute this action vigorously on behalf of each class.22 Plaintiffs therefore meet the

7 requirements of Rule 23(a)(1) and (a)(4).

8

9

2. Plaintiffs Satisfy Rule 23(b)(2)

10

This Court previously found that the Medicaid Subclass satisfies Rule 23(b)(2),

11 which requires that “the party opposing the class has acted or refused to act on grounds

12 that apply generally to the class, so that final injunctive relief or corresponding 13
declaratory relief is appropriate respecting the class as a whole.” (See Class Certification 14
15 Order at 20-21 (citing Fed. R. Civ. P. 23(b)(2)).) This requirement is “‘unquestionably

16 satisfied’” when the putative class seeks “uniform injunctive or declaratory relief from
17 policies or practices that are generally applicable to the class as a whole.” (Id. at 20
18 19 (citing Parsons, 754 F.3d at 688).) The rule will “ordinarily be satisfied when plaintiffs

20 have described the general contours of an injunction that would provide relief to the

21

22 21 This Court has already determined that there is no conflict between the Next Friends
23 and the members of the class. (Dkt. Nos. 156 and 162.) 22 The Court has previously appointed Children’s Rights, Perkins Coie LLP, and Arizona
24 Center for Law in the Public Interest as class counsel in this action. (Class Certification
25 Order at 22.) Plaintiffs’ counsel continue to meet the requirements of Rule 23(g) and should be appointed again to represent the Medicaid Subclass. (See Dkt. No. 235, Declaration of
26 Harry Frischer in Support of Plaintiffs’ Motion for Class Certification, Nov. 29, 2016; Dkt.
27 No. 236, Declaration of Joseph E. Mais in Support of Plaintiffs’ Motion for Class Certification, Nov. 29, 2016; Dkt. No. 237, Declaration of Anne Ronan in Support of
28 Plaintiffs’ Motion for Class Certification, Nov. 28, 2016.)

18

Case 2:15-cv-00185-ROS Document 430 Filed 07/31/19 Page 22 of 24

1 whole class.” Parsons at 689 n.35.

2

Here, Plaintiffs’ claims “challenge Defendants’ common set of policies and

3 practices involving health care services and the placement of children in the foster care
4

5 system.” (Class Certification Order at 21.) Plaintiffs do not seek individual adjudications

6 of each members’ Medicaid claims, but rather “seek to remedy” the “‘risk of exposure’

7 created by subjecting children in foster care to [Defendants’] policies and practices.” (Id.) 8 9 Plaintiffs seek an injunction on behalf of the Medicaid Subclass to “develop and

10 implement, as soon as practical, a plan to eliminate” the risk of violation of the Medicaid

11 statute stemming from Defendants’ inadequate policies and practices. See Parsons, 754 12
F.3d at 687 (internal quotations omitted) (holding that the district court did not abuse its 13
14 discretion in determining that plaintiffs satisfied Rule 23(b)(2) where plaintiffs requested

15 similar injunctive relief to reduce a risk of harm and specified issues that any plan should
16 be required to address). Such classwide injunctive relief may include, among other
17 18 requirements, an injunction to hire more caseworkers in order to “meet health care

19 delivery deadlines in a manner that ensures the plaintiffs receive timely medical

20 evaluations and care.” (Ninth Circuit Opinion at 26.) Thus, Rule 23(b)(2) is satisfied.

21

22

VI. Conclusion

23

As stated above, the Court should certify the Medicaid Subclass.

24

25

26

27

28

19

Case 2:15-cv-00185-ROS Document 430 Filed 07/31/19 Page 23 of 24

1 Respectfully submitted this 31st day of July, 2019.

2

CHILDREN’S RIGHTS, INC.

3 By: s/ Aaron Finch

4

Harry Frischer

5

Aaron Finch

Daniele Gerard

6

88 Pine Street, Suite 800

7

New York, New York 10005

8

PERKINS COIE LLP

9

Joseph Mais Shane Swindle

10

2901 N. Central Avenue, Suite 2000

Phoenix, Arizona 85012-2788 11

12

ARIZONA CENTER FOR LAW IN THE PUBLIC

INTEREST

13

Daniel J. Adelman

14

Anne C. Ronan

514 West Roosevelt Street

15

Phoenix, Arizona 85003

16 Attorneys for Plaintiffs
17

18

19

20

21

22

23

24

25

26

27

28

20

Case 2:15-cv-00185-ROS Document 430 Filed 07/31/19 Page 24 of 24

1

CERTIFICATE OF SERVICE

2 I hereby certify that on July 31, 2019, I electronically transmitted the attached
3
4 document to the Clerk’s Office using the CM/ECF System for filing and transmittal to the

5 following CM/ECF registrants:

6 Robert Ellman

Logan T. Johnston

7 rle@elgarizona.com

ltjohnston@live.com

8

ELLMAN LAW GROUP LLC 3030 North Central Avenue, Suite 1110

JOHNSTON LAW OFFICES, P.L.C.

9 Phoenix, Arizona 85012

1402 E. Mescal Street

10 Daniel P. Quigley

Phoenix, Arizona 85020

11 dquigley@CDQLaw.com

Daniel P. Struck

Cindy C. Albracht-Crogan 12 ccrogan@CDQLaw.com

dstruck@strucklove.com Nicholas D. Acedo

13 Stacey F. Gottlieb sgottlieb@CDQLaw.com
14 Lauren M. LaPrade

nacedo@strucklove.com Timothy J. Bojanowski tbojanowski@strucklove.com

15 llprade@CDQLaw.com COHEN DOWD QUIGLEY P.L.C.
16 The Camelback Esplanade One

Dana M. Giallonardo dgiallonardo@strucklove.com STRUCK LOVE BOJANOWSKI &

17 2425 East Camelback Road, Ste. 1100 Phoenix, Arizona 85016

ACEDO, P.L.C. 3100 W. Ray Road, Suite 300

18

Chandler, Arizona 85226-2473

19

Attorneys for Defendant Gregory McKay Catherine D. Plumb

20

plumblawoffice@gmail.com

21

LAW OFFICES OF CATHERINE DODD PLUMB, P.L.C.

22

17225 N. 16th Place

Phoenix, Arizona 85022 23

24

Attorneys for Defendant Jami Snyder

25

s/ Aaron Finch

26

27

28

21

 
 Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 1 of 32

1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Margaret Tinsley, et al.,

No. CV-15-00185-PHX-ROS

10

Plaintiffs,

ORDER

11 v.

12 Michael Faust, et al.,

13

Defendants.

14

15

In 2016, Named Plaintiff B.K. (“Plaintiff” or “B.K.”), a minor in the custody of

16 the Arizona foster care system, sought certification of this matter as a class action with

17 subclasses under Rule 23(b)(2). This Court granted certification of the General Class, the

18 Non-Kinship Subclass, and the Medicaid Subclass. The Ninth Circuit affirmed the

19 certification of the General Class and the Non-Kinship Subclass, but vacated the

20 certification of the Medicaid Subclass and remanded to this Court for further

21 consideration of the commonality requirement under Rule 23(a). Plaintiff then filed a

22 motion to certify the Medicaid Subclass under Rules 23(a) and 23(b)(2). (Doc. 430.)

23 Defendants opposed. (Doc. 435.) For reasons that follow, the Court will grant the motion

24 for certification of the Medicaid Subclass.

25

BACKGROUND

26

Plaintiff filed this civil rights class action on behalf of children in the custody of

27 the Arizona foster care system, claiming the Arizona foster care system violates the U.S.

28 Constitution and the Medicaid Act. (Doc. 37.) She alleges Arizona’s uniform, statewide

Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 2 of 32

1 policies and practices in the foster care system exposed her and all other foster children to

2 harm or unreasonable risk of harm while in the state’s care, in violation of federal rights.

3 (Id.) Of particular relevance here, she alleges the policies and practices of the Arizona

4 Department of Child Safety (“DCS”) and the Arizona Health Care Cost Containment

5 System (“AHCCCS”) subject foster children to a significant risk of denial of medically

6 necessary health care. (Id.)

7

In 2017, this Court originally granted Plaintiff’s motion for class certification and

8 certified three groups of children: (1) all children who are or will be in the legal custody

9 of DCS due to a report or suspicion of abuse or neglect (the “General Class”); (2) all

10 members in the General Class who are not placed in the care of an adult relative or

11 person who has a significant relationship with the child (the “Non-Kinship Subclass”);

12 and (3) all members of the General Class who are entitled to early and periodic screening,

13 diagnostic, and treatment services under the federal Medicaid statute (the “Medicaid

14 Subclass”). (Doc. 363.) Plaintiff asserted constitutional due process claims for the

15 General Class and the Non-Kinship Subclass. Specifically, Plaintiff claimed that DCS

16 violated substantive due process rights under the Fourteenth Amendment by failing to

17 care adequately for the General Class, and by placing the Non-Kinship Subclass at

18 substantial risk of harm. For the Medicaid Subclass, Plaintiff asserted only a Medicaid

19 Act claim.

20

Defendants appealed the class certification to the Ninth Circuit. (Docs. 365; 366.)

21 On April 26, 2019, the Ninth Circuit issued its opinion affirming the certification of the

22 General Class, holding this Court “properly grounded its commonality determination in

23 the constitutionality of statewide policies and practices,” which “are the ‘glue’ that holds

24 the class together.” B.K., by next friend Tinsley v. Snyder, 922 F.3d 957, 969 (9th Cir.

25 2019) (citing Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014)).1 The Ninth Circuit

26 1 The nine statewide practices affecting the General Class are: (1) failure to provide

27

timely access to health care, including comprehensive evaluations, timely annual visits, semi-annual preventative dental health care, adequate health assessments,

28

and immunizations; (2) failure to coordinate physical and dental care service delivery; (3) ineffective coordination and monitoring of DCS physical and dental services; (4) overuse

of congregate care for children with unmet mental needs; (5) excessive caseworker

- 2 -

Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 3 of 32

1 also affirmed the certification of the Non-Kinship Subclass, holding that “[a]s with the

2 General Class, commonality, typicality, and uniformity of injunctive relief were satisfied

3 by identifying [three statewide] practices because the district court will be able to

4 determine whether [Defendants] have an unconstitutional practice of placing children in

5 substantial risk of harm by evaluating these practices as a whole, rather than as to each

6 individual class member.” 2 Id. at 973.

7

The Ninth Circuit reversed the certification of the Medicaid Subclass because

8 certification of the Medicaid Subclass was “based on an apparent misconception of the

9 legal framework for such a claim.” Id. at 975. The Ninth Circuit formulated two distinct

10 legal theories that could justify certifying the Medicaid Subclass. First, “whether every

11 child in the Medicaid Subclass is subjected to the same state-wide policy or practice that

12 violates the Medicaid Act.” Id. at 976–77. Second, whether a state-wide “policy or

13 practice could expose every child in the subclass to a significant risk of an imminent

14 future Medicaid violation.” Id. at 977. The Ninth Circuit held “[u]nder this [second]

15 theory, the plaintiffs . . . may challenge the Medicaid violation before it has taken place,

16 so long as the requisite ‘significant risk’ exists, so commonality may exist based on a

17 finding that all class members are subjected to the same risk.” Id.

18

Certification of the Medicaid Subclass was remanded to this Court for further

19 proceedings based on the Ninth Circuit’s proposed commonality standard, specifically on

20 the question of whether “every subclass member was subject to an identical ‘significant

21 risk’ of a future Medicaid violation that would support injunctive relief.” Id. Judge

22 Adelman dissented from the vacatur of the Medicaid Subclass certification order, finding

23 this Court did not err in applying Rule 23 standards, and noting that, at the class

24 certification stage, Plaintiff did not have to prove “that the defendants’ policies are in fact

25

26 caseloads; (6) failure to investigate reports of abuse timely; (7) failure to document

27

“safety assessments”; (8) failure to close investigations timely; and (9) investigation delays.

28

2 The three statewide practices affecting the Non-Kinship Sublcass are: (1) excessive use of emergency shelters and group homes; (2) unnecessary separation of siblings; and (3)

placement of children far from home.

- 3 -

Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 4 of 32

1 deficient,” but simply “that the question of whether the policies are deficient can be

2 resolved on a class-wide basis.” Id. at 982 (Adelman, J., concurring in part and dissenting

3 in part).

4

On remand, Plaintiff sought leave to seek certification of the Medicaid Subclass

5 “not because Defendants violated the Medicaid Act but because each class member is

6 subject to a significant risk that Defendants will violate the Medicaid Act.” (Doc. 425 at

7 2.)3 The Court granted Plaintiff’s request to file this motion. (Doc. 425.)

8

ANALYSIS

9

Plaintiff seeks to certify the Medicaid Subclass under Federal Rule of Civil

10 Procedure 23. Under Rule 23(a), a party seeking certification of a subclass must satisfy

11 four prerequisite requirements: (1) numerosity, (2) commonality, (3) typicality, and (4)

12 adequacy of representation. Fed. R. Civ. P. 23(a)(1)-(4). If the initial requirements are

13 met, Plaintiff’s proposed subclass must also satisfy the requirements of one of the

14 subsections of Rule 23(b), “which defines three different types of classes.” See Leyva v.

15 Medline Indus. Inc., 716 F.3d 510, 512 (9th Cir. 2013). Here, Plaintiff seeks to certify the

16 Medicaid Subclass pursuant to Rule 23(b)(2), which requires that “the party opposing the

17 class has acted or refused to act on grounds that apply generally to the class, so that final

18 injunctive relief or corresponding declaratory relief is appropriate respecting the class as

19 a whole.” See Fed. R. Civ. P. 23(b)(2).

20

District courts must conduct a rigorous analysis of whether the prerequisites of

21 Rule 23(a) are satisfied, an analysis which may “touch[] aspects of the merits.” Wal-Mart

22 Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011). However, “[m]erits questions may be

23 considered to the extent—but only to the extent—that they are relevant to determining

24 whether the Rule 23 prerequisites for class certification are satisfied.” Amgen Inc. v.

25 Connecticut Retirement Plans & Trust Funds, 568 U.S. 455, 466 (2013) (citing Wal-

26 Mart, 564 U.S. at 351 n.6).

27

Defendants oppose Plaintiff’s motion for alleged failure to adequately demonstrate

28 3 All page numbers on electronically filed documents refer to the ECF-generated page numbers.

- 4 -

Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 5 of 32

1 imminent Medicaid violations, and failure to meet the commonality, typicality, and Rule

2 23(b)(2) requirements. (Doc. 435 at 2.)

3

The Court will address the requirements of the Medicaid statute and what

4 constitutes a Medicaid violation. The Court will then turn to class certification and

5 address each of Defendants’ arguments in turn.

6

I. The Medicaid Statute

7

The parties disagree on what the Medicaid Act requires regarding early and

8 periodic screening, diagnostic, and treatment services (“EPSDT”), and what would

9 establish a violation. This fundamental question underlies resolution of all other issues in

10 the class certification motion.

11

A. The Relevant Medicaid Statutes

12

EPSDT services are defined in the Medicaid Act. The statute defines the term

13 “early and periodic screening, diagnostic, and treatment services” to mean five items and

14 services: (1) screening services4; (2) vision services; (3) dental services; (4) hearing

15 services; and (5) “Such other necessary health care, diagnostic services, treatment, and

16 other measures” as are necessary to “correct or ameliorate defects and physical and

17

18 4 Screening services are services:

19

(A) which are provided— (i) at intervals which meet reasonable standards of medical and

20

dental practice, as determined by the State after consultation with recognized medical and dental organizations involved in child health care

21

and, with respect to immunizations under subparagraph (B)(iii), in accordance with the schedule referred to in section 1396s(c)(2)(B)(i) of this

22

title for pediatric vaccines, and (ii) at such other intervals, indicated as medically necessary, to

23

determine the existence of certain physical or mental illnesses or conditions; and

24

(B) which shall at a minimum include— (i) a comprehensive health and developmental history (including

25

assessment of both physical and mental health development), (ii) a comprehensive unclothed physical exam,

26

(iii) appropriate immunizations (according to the schedule referred to in section 1396s(c)(2)(B)(i) of this title for pediatric vaccines) according

27

to age and health history, (iv) laboratory tests (including lead blood level assessment

28

appropriate for age and risk factors), and (v) health education (including anticipatory guidance).

42 U.S.C. § 1396d(r)(1).

- 5 -

Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 6 of 32

1 mental illnesses and conditions.”5 42 U.S.C. § 1396d(r)(1)–(5). Providers of EPSDT

2 services are instructed to read their duties broadly.6

3

The duties of the State of Arizona are laid out in Section 1396a, “State plans for

4 medical assistance.” Any state’s plan for medical assistance (i.e. Medicaid) must apply

5 universally within the state, 42 U.S.C. § 1396a(a)(1), and must provide for: (A) informing

6 eligible children of the availability of EPSDT services; (B) “providing or arranging for

7 the provision” of EPSDT services; (C) arranging for corrective treatment if necessary;

8 and (D) providing annual reports of how many children were screened, treated, and

9 received services, as well as reporting whether the state met the requirements of 42

10 U.S.C. § 1396d(r).7 42 U.S.C. § 1396a(a)(43).

11 5 The “other measures” include “any medical or remedial services . . . for the maximum

12

reduction of physical or mental disability and restoration of an individual to the best possible functional level.” 42 U.S.C. § 1396d(a)(13)(C).

13

6 The statute notes in concluding subsection (r) that “Nothing in this subchapter shall be construed as limiting providers of early and periodic screening, diagnostic, and treatment

14

services to providers who are qualified to provide all of the items and services described in the previous sentence or as preventing a provider that is qualified under the plan to

15

furnish one or more (but not all) of such items or services from being qualified to provide such items and services as part of early and periodic screening, diagnostic, and treatment

16

services.” 42 U.S.C. § 1396d(r). See also Rosie D. v. Romney, 410 F. Supp. 2d 18, 26 (D. Mass. 2006) (“Because the only limit placed on the provision of EPSDT services is the

17

requirement that they be ‘medically necessary,’ the scope of the EPSDT program is broad.”)

18

7 A state plan for medical assistance must provide for— (A) informing all persons in the State who are under the age of 21 and who

19

have been determined to be eligible for medical assistance including services described in section 1396d(a)(4)(B) of this title, of the availability

20

of early and periodic screening, diagnostic, and treatment services as described in section 1396d(r) of this title and the need for age-appropriate

21

immunizations against vaccine-preventable diseases, (B) providing or arranging for the provision of such screening services in

22

all cases where they are requested, (C) arranging for (directly or through referral to appropriate agencies,

23

organizations, or individuals) corrective treatment the need for which is disclosed by such child health screening services, and

24

(D) reporting to the Secretary (in a uniform form and manner established by the Secretary, by age group and by basis of eligibility for medical

25

assistance, and by not later than April 1 after the end of each fiscal year, beginning with fiscal year 1990) the following information relating to early

26

and periodic screening, diagnostic, and treatment services provided under the plan during each fiscal year:

27

(i) the number of children provided child health screening services, (ii) the number of children referred for corrective treatment (the need

28

for which is disclosed by such child health screening services), (iii) the number of children receiving dental services, and other

information relating to the provision of dental services to such

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Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 7 of 32

1

The Code of Federal Regulations also lays out relevant regulatory guidance,

2 defining EPSDT as “(1) Screening and diagnostic services to determine physical or

3 mental defects in beneficiaries under age 21; and (2) Health care, treatment, and other

4 measures to correct or ameliorate any defects and chronic conditions discovered.” 42

5 C.F.R. § 440.40(b). State Medicaid plans must “provide that the Medicaid agency meets

6 the requirements of §§ 441.56-441.62, with respect to EPSDT services.” 42 C.F.R.

7 § 441.55. Those sections describe: (1) required activities (§ 441.56); (2) discretionary

8 services (§ 441.57); (3) the periodicity schedule (§ 441.58); (4) treatment of requests for

9 EPSDT screening services (§ 441.59); (5) continuing care (§ 441.60); (6) utilization of

10 providers and coordination with related programs (§ 441.61); and (7) transportation and

11 scheduling assistance (§ 441.62). Sections 441.56, the required activities, and 441.58, the

12 periodicity schedule, are particularly important to the resolution of the class certification

13 motion.

14

The required activities include: (a) informing all EPSDT eligible individuals and

15 their families about the program’s details (§ 441.56(a))8; (b) screening, or “periodic

16 comprehensive child health assessments,” which “must be provided in accordance with

17 reasonable standards of medical and dental practice” (§ 441.56(b))9; (c) diagnosis and

18 treatment, including immunizations and treatment for vision, hearing, and dental

19 problems which would not otherwise be covered by Medicaid if the screening indicates a

20 need (§ 441.56(c))10; (d) accountability (§ 441.56(d)); and (e) timeliness (§ 441.56(e)).11

21

22

children described in section 1397hh(e) of this title and (iv) the State’s results in attaining the participation goals set for the

23

State under section 1396d(r) of this title. 42 U.S.C. § 1396a(a)(43) (footnote omitted).

24

8 Recipients of EPSDT services must be informed, among other things, “That necessary transportation and scheduling assistance described in § 441.62 of this subpart is available

25

to the EPSDT eligible individual upon request.” § 441.56(a)(2)(iv). 9 Periodic comprehensive child health assessments are “regularly scheduled examinations

26

and evaluations of the general physical and mental health, growth, development, and nutritional status of infants, children, and youth.” 42 C.F.R. § 441.56(b)(1).

27

10 “In addition to any diagnostic and treatment services included in the plan, the agency must provide to eligible EPSDT beneficiaries, the following services, the need for which

28

is indicated by screening, even if the services are not included in the plan”: “(1) Diagnosis of and treatment for defects in vision and hearing, including eyeglasses and

hearing aids; (2) Dental care, at as early an age as necessary, needed for relief of pain and

- 7 -

Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 8 of 32

1

The periodicity schedule must meet “reasonable standards of medical and dental

2 practice” and specify “screening services applicable at each stage of the beneficiary’s

3 life.” 42 C.F.R. § 441.58. Arizona publishes its periodicity schedule for EPSDT services

4 in the AHCCCS Medical Policy Manual (“AMPM”). For children ages 3–20, Arizona

5 requires that every child receive an annual well-child physical examination, at which

6 their blood pressure is taken, their social-emotional health is assessed, they are weighed

7 and measured, and other procedures are conducted.12 AMPM Policy 430, Exhibit 430-1.

8 The parties refer to this physical examination somewhat interchangeably as “well-child

9 exams,” “Well-Child Visits,” “Well-Care Visits,” and “EPSDT Exams.” (Docs. 430 at

10 10, 435 at 9, 392-4 at 19.) In addition, every child must see a dentist every six months,

11 and receive immunizations and vision and hearing screenings if indicated for their age.

12 AMPM Policy 430, Exhibit 430-1. The AMPM concludes “These are minimum

13 requirements. If at any time other procedures, tests, etc. are medically indicated, the

14 physician is obligated to perform them. If a child comes under care for the first time at

15 any point on the schedule, or if any items are not accomplished at the suggested age, the

16 schedule should be brought up to date at the earliest possible time.”13 Id. (emphasis in

17 original).

18

19

infections, restoration of teeth and maintenance of dental health; and (3) Appropriate immunizations. (If it is determined at the time of screening that immunization is needed

20

and appropriate to provide at the time of screening, then immunization treatment must be provided at that time.)” 42. C.F.R § 441.56(c).

21

11 “[T]he agency must set standards for the timely provision of EPSDT services which meet reasonable standards of medical and dental practice, as determined by the agency

22

after consultation with recognized medical and dental organizations involved in child health care, and must employ processes to ensure timely initiation of treatment, if

23

required, generally within an outer limit of 6 months after the request for screening services.” 42 C.F.R. § 441.56(e).

24

12 The ten procedures which must be conducted at an annual well-child examination, according to the AHCCCS periodicity schedule, are: “History Initial/Interval”;

25

“Length/Height & Weight”; “Body Mass Index (BMI)”; “Blood Pressure”; “Nutritional Assessment”; “Developmental Surveillance”; “Psychosocial/Behavioral Assessment

26

(Social-Emotional Health)”; “Physical Examination”; “Oral Health Screening by PCP”; and “Anticipatory Guidance.” AMPM Policy 430, Exhibit 430-1.

27

13 However, AHCCCS need not provide redundant services. If an eligible beneficiary requests EPSDT services, AHCCCS “must provide the screening services” unless

28

“written verification exists that the most recent age-appropriate screening services, due under the agency’s periodicity schedule, have already been provided to the eligible.” 42

C.F.R. § 441.59.

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Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 9 of 32

1

The required services and periodicity schedule are best illustrated by way of

2 example—for instance, a 5-year-old child in the continuous custody of the Arizona foster

3 care system must receive 1 well-child physical exam, 1 vision exam, 1 hearing exam, and

4 2 dental exams over the course of the year, for a total of five exams between their fifth

5 and sixth birthdays. Id.; Doc. 392-4 at 19. A 7-year-old child must receive 1 well-child

6 physical exam and 2 dental exams, for a total of three exams between their seventh and

7 eighth birthdays. AMPM Policy 430, Exhibit 430-1; Doc. 392-4 at 19.

8

Arizona has legislated that DCS “shall provide comprehensive medical and dental

9 care . . . for each child who is: (1) In a voluntary placement . . . [or] (2) In the custody of

10 the department in an out-of-home placement.” A.R.S. § 8-512(A). Comprehensive

11 medical and dental care “consists of those benefits provided by the [AHCCCS] benefit as

12 prescribed in title 36, chapter 29, article 1 [et seq.] and as set forth in the approved

13 medicaid state plan.” A.R.S. § 8-512(B).

14

The benefits provided by AHCCCS include “the following medically necessary

15 health and medical services: . . . Early and periodic health screening and diagnostic

16 services as required by section 1905(r) of title XIX of the social security act for members

17 who are under twenty-one years of age.” A.R.S. § 36-2907(A)(7).

18

In sum, Defendants must provide EPSDT services, as that term is defined in 42

19 U.S.C. § 1396d(r), to all children in the custody of the Arizona foster care system who

20 are eligible. To be clear, every eligible child must receive a well-child physical

21 examination each year, a dental examination every six months, and immunizations,

22 visual, and hearing screening based on their age. Evidence that any eligible child did not

23 receive EPSDT services is evidence of a Medicaid violation.

24

B. The Parties’ Positions

25

Plaintiff’s position is that the word “provide” in the relevant statutes means

26 Defendants are responsible for ensuring that each and every Medicaid-eligible child in

27 the custody of the Arizona foster care system actually receives EPSDT services, and

28 moreover receives those services with reasonable promptness. (Doc. 430 at 7, citing the

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Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 10 of 32

1 EPSDT Guide at 32.14) This position is summarized as: “In short, the EPSDT provisions

2 of Medicaid require that eligible children ‘get the health care they need when they need it

3 – the right care to the right child at the right time in the right setting,’ which is ‘the goal

4 of the EPSDT provision.’” (Id., citing the EPSDT Guide at 1.) Plaintiff provided

5 evidence, through expert reports, that “many foster children have not received mandated

6 physical and dental EPSDT examinations,” and alleges that the causes of the problem are

7 Defendants’ state-wide policies and practices. (Id. at 9.)

8

Defendants’ position is that Arizona is not required to ensure that the children

9 receive EPSDT services; rather, Arizona must ensure only that EPSDT services are

10 available. (Doc. 435 at 7, 13). Furthermore, Defendants state that if EPSDT services

11 result in a recommendation for treatment, such treatment is timely if it occurs within six

12 months. (Id. at 9.) Defendants summarize their position as: “Neither the statute, the rules,

13 CMS, nor CMS’s EPSDT Guide tasks the states with guaranteeing that children receive

14 the services that Defendants make available.” (Id. at 13.) Defendants attempt to

15 controvert Plaintiff’s expert reports by arguing the experts do not explicitly cite the

16 Medicaid standards. (Id. at 7.)

17

C. Violations of the Medicaid Act

18

In interpreting the EPSDT requirements of the Medicaid Act, the Court is guided

19 by Katie A., ex rel. Ludin v. Los Angeles County, 481 F.3d 1150 (9th Cir. 2007) and the

20 canons of statutory construction. “A primary canon of statutory interpretation is that the

21 plain language of a statute should be enforced according to its terms, in light of its

22 context.” Wadler v. Bio-Rad Labs., Inc., 916 F.3d 1176, 1186 (9th Cir. 2019) (quoting

23 ASARCO, LLC v. Celanese Chem. Co., 792 F.3d 1203, 1210 (9th Cir. 2015)).

24

States that have chosen to provide Medicaid to their citizens “have an obligation to

25 cover every type of health care or service necessary for EPSDT corrective or ameliorative

26

27

14 Centers for Medicare & Medicaid Services, U.S. Dep’t of Health & Human Services., EPSDT – A Guide for States: Coverage in the Medicaid Benefit for Children and

28

Adolescents (June 2014), https://www.medicaid.gov/medicaid/benefits/downloads/epsdt_coverage_guide.pdf

(hereinafter “EPSDT Guide”).

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Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 11 of 32

1 purposes,” and “an obligation to see that the services are provided when screening reveals

2 that they are medically necessary for a child.” Katie A., 482 F.3d at 1158 (citing 42

3 U.S.C. §§ 1396a(a)(43)(C), 1396d(a)). In a highly analogous case in the District of

4 Massachusetts addressing the provision of EPSDT services, the court made clear that

5 under Medicaid, children are owed greater benefits than adults. Rosie D. v. Romney, 410

6 F. Supp. 2d 18, 25 (D. Mass. 2006) (“As broad as the overall Medicaid umbrella is

7 generally, the initiatives aimed at children are far more expansive.”). This obligation is

8 active, not passive, and may require the state to be proactive in arranging for services,

9 since “the ultimate responsibility to ensure treatment remains with the state.” Katie A.,

10 482 F.3d at 1158–59 (collecting cases); see Rosie D., 410 F. Supp. 2d at 27 (“[T]he

11 [Medicaid] Act requires a proactive approach.”). “[S]tates do have broader Medicaid

12 obligations to children than to other populations of Medicaid recipients.” Alvarez v.

13 Betlach, No. CV 09-558 TUC AWT, 2012 WL 10861543, at *6 (D. Ariz. May 21, 2012),

14 aff’d in part, vacated in part, 572 F. App’x 519 (9th Cir. 2014).

15

A closer look at previous Ninth Circuit caselaw establishes Defendants’

16 interpretation of their own obligations is incorrect. The district court in Katie A. held that

17 state agencies were required to “provide services to class members, rather than simply

18 make such services available.” Katie A., 481 F.3d at 1162 (emphasis added). On appeal,

19 the Ninth Circuit affirmed this interpretation of the Medicaid Act, holding that

20 “[r]equiring the State actually to provide EPSDT services that have been found to be

21 medically necessary is consistent with the language of the Medicaid Act, which requires

22 that each state plan ‘provide for . . . arranging for (directly or through referral to

23 appropriate agencies, organizations, or individuals) corrective treatment the need for

24 which is disclosed by such child health screening services.’” Id. (quoting 42 U.S.C. §

25 1396a(a)(43)) (emphasis added); see also Rosie D., 410 F. Supp. 2d at 26 (“Congress’

26 firm intent to ensure that Medicaid-eligible children actually receive services is

27 powerfully underlined by provisions in the statute that place explicit duties on states to”

28 inform children of the availability of EPSDT services, “provide or arrange for” services

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Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 12 of 32

1 every time they are requested, and “arrange for whatever corrective treatments are

2 discovered to be needed.”) (citing 42 U.S.C. § 1396a(a)(43; 42 C.F.R. §§ 441.56(a)(1),

3 441.61, 441.62) (emphasis added).

4

The Ninth Circuit’s approach in Katie A. comports with the plain language of the

5 statute and regulations, which requires the provision of EPSDT services, not the

6 availability of services. See 42 U.S.C. § 1396a(a)(43) (state Medicaid plans “must

7 provide for—. . . such screening services”); 42 C.F.R. § 441.56(b)(1) (AHCCCS “must

8 provide . . . screening”); 42 C.F.R. § 441.56(c) (AHCCCS “must provide” dental, vision,

9 and hearing services, and immunizations); 42 C.F.R. § 441.59 (AHCCCS “must provide

10 the screening services”); and A.R.S. § 8-512(A) (DCS “shall provide comprehensive

11 medical and dental care”).

12

The State Medicaid Manual confirms this interpretation, describing the EPSDT

13 program as “A Comprehensive Child Health Program” which “consists of two, mutually

14 supportive, operational components: assuring the availability and accessibility of required

15 health care resources and helping Medicaid recipients and their parents or guardians

16 effectively use them.” State Medicaid Manual § 5010(B).15 The position taken by

17 Defendants addresses only the first component.

18

Not only must the state ensure that EPSDT services are provided in the first place,

19 it “also must ensure that the EPSDT services provided are reasonably effective.” Katie A.,

20 481 F.3d at 1159. And as the Ninth Circuit held in this case, “[t]he most natural reading

21 of the Act and our precedents is that a violation occurs when EPSDT services have failed

22 to be provided in a timely manner.” Tinsley, 922 F.3d at 976.

23

Defendants disagree that they are responsible for ensuring that children receive

24 care, asserting generally that “there are many reasons, beyond Defendants’ control” why

25 children in the custody of Arizona’s foster care system do not receive timely medical care

26 according to AHCCCS’s own periodicity schedule of screenings and treatments,

27 including that “some children do not need services,” “[n]ot everyone wants or requests

28 15 Available for download at https://www.cms.gov/Regulations-andGuidance/Guidance/Manuals/Paper-Based-Manuals-Items/CMS021927.html.

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Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 13 of 32

1 help that is available,” and many children “simply fail to show for their medical

2 appointments.” (Doc. 435 at 11.)

3

The Court does not find these arguments persuasive. The AHCCCS periodicity

4 schedule requires an annual well-child physical examination, as well as a dental referral

5 every six months, and concludes “These are minimum requirements.” AMPM Policy 430,

6 Exhibit 430-1 (emphasis in original). Having complied with the Medicaid statute to

7 determine the appropriate care intervals which “meet reasonable standards of medical and

8 dental practice,” 42 U.S.C. § 1396d(r)(1), Defendants cannot now baldly assert that

9 “some children do not need services.” (Doc. 435 at 11.) To the contrary, every child

10 needs medical services at least once per year. An assertion that Medicaid-eligible

11 children do not require any medical services is directly contrary to Congress’ intent and

12 the plain language of the Medicaid Act.

13

Nor does the burden lie on a child to request help. The Medicaid Act requires that

14 state proactively “identify obstacles to the effective conveyance of information” and

15 mitigate the negative impact of such obstacles; if Arizona’s “scheme for informing

16 children of their rights is ineffective . . . [Arizona] is not in compliance with the law.”

17 Rosie D., 410 F. Supp. 2d at 26–27. Thus, Arizona may not simply shrug indifferently

18 when children do not request help, but instead must first affirmatively determine what

19 obstacles lie between the children and the “help that is available,” and then mitigate those

20 obstacles. (Doc. 435 at 11.)

21

Nor is it the child’s fault if a child fails to show up for their medical appointment.

22 The Court reminds Defendants once again that the members of the Medicaid Subclass are

23 children.16 The responsibility for ensuring that a minor child attends a medical

24

25

16 Some members of the Medicaid Subclass are infants and toddlers. Many others are too young to take public transit, if public transit is even available to them. Children under the

26

age of 15 years and six months may not operate motor vehicles in the state of Arizona. See Arizona Dep’t of Transportation, https://azdot.gov/motor-vehicles/driver-

27

services/driver-license-classes-and-types. And even those children who are old enough to drive might not have access to a car. Furthermore, it is simply common sense that

28

children, particularly foster children, do not have the requisite skills or access to resources to make alternative transportation arrangements or negotiate the obstacles

surrounding their medical care alone.

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Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 14 of 32

1 appointment rests not with the child, but with the guardian of the child. Furthermore,

2 Defendants are required to inform children in the Medicaid Subclass “That necessary

3 transportation and scheduling assistance described in § 441.62 of this subpart is available

4 to the EPSDT eligible individual upon request” and Defendants must provide such

5 assistance. 42 C.F.R. § 441.56(a)(2)(iv). Defendants cite studies which attribute medical

6 appointment no-shows to a lack of transportation, but if a foster family fails to bring a

7 child to their appointment because of a lack of transportation, the ultimate responsibility

8 lies with Defendants for not informing the family that transportation assistance is

9 available and then providing such necessary assistance.17 (Doc. 435 at 11 n.8.) The Court

10 notes with concern that Defendant’s comparison between foster children missing

11 pediatrician appointments and patients at substance use disorder outpatient clinics

12 missing addiction treatment appointments is particularly inapposite. (Id.)

13

Defendants assert that “Plaintiffs’ premise that Defendants violate the law

14 whenever a child misses a service is false.” (Doc. 435 at 12.) But it is Defendants’

15 assertion that is false. The Court holds that the Medicaid Act requires Defendants to

16 proactively ensure that each child eligible for EPSDT services actually receives such

17 services in a timely manner. It is not sufficient for Defendants merely to make EPSDT

18 services available. Therefore, a violation of the Medicaid Act occurs when a child in the

19 Medicaid Subclass does not receive EPSDT services at all, or does not receive them in a

20 timely manner. The timeliness of an EPSDT service is determined by whether the child

21 received the service according to the schedule set forth in the AHCCCS Medicaid Policy

22 Manual.18 Consistent with 42 C.F.R. § 441.56(e), a child must begin treatment no later

23 than six months after the screening that established the need for the treatment.

24

25

26

17 The Court recognizes that even if Defendants provide transportation, some foster families might still miss the occasional medical appointment. In those instances,

27

Defendants must make all reasonable efforts to ensure that the children receive the necessary care as soon as possible. Defendants may not abdicate their responsibility to

28

ensure that the children actually receive care. 18 The AHCCCS Medicaid Policy Manual must continue to meet reasonable standards of

medical and dental practice.

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Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 15 of 32

1

II. Class Certification

2

The question remaining for the purpose of class certification is whether there is a

3 common question of law or fact such that every member of the Medicaid Subclass is

4 subject to an identical significant risk of an imminent future Medicaid violation that

5 would support injunctive relief; and if so, if the typicality and Rule 23(b)(2) requirements

6 have also been met.

7

Plaintiff has identified five policies and practices which she alleges “create a

8 significant uniform risk that Subclass members will not receive necessary physical,

9 dental, and behavioral health services, in violation of the Medicaid statute.” (Doc. 430 at

10 15.) These practices are: (1) Defendants’ practice of failing to provide an adequate array

11 of behavioral health and therapeutic services for members of the Medicaid Subclass; (2)

12 Defendants’ practice of failing to coordinate behavioral health services for members of

13 the Medicaid Subclass; (3) Defendants’ practice of failing to provide Medicaid Subclass

14 members with timely mental health services; (4) Defendants’ practice of failing to

15 provide members of the Medicaid Subclass with timely well-child visits and

16 immunizations; and (5) Defendants’ practice of ineffectively coordinating and monitoring

17 physical and dental health care. (Id.)

18

Defendants argue that Plaintiff has failed to prove that “what [Plaintiff] call[s]

19 ‘practices’ actually exist,” and that Plaintiff “do[es] not demonstrate that these practices

20 violate the Medicaid laws that apply to these allegations” or that “all children in foster

21 care are exposed to an identical risk of imminent violation of those laws.” (Doc. 435 at

22 4.)

23

The Court will first analyze each practice, and determine whether there is

24 sufficient factual support for the purposes of class certification to support Plaintiff’s

25 allegations each practice exists and violates the Medicaid Act. The Court will then

26 analyze whether there is commonality such that each member of the Medicaid Subclass is

27 subject to an identical significant risk of future Medicaid violations, and whether the

28 typicality and Rule 23(b)(2) requirements have been met.

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Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 16 of 32

1

A. Defendants’ Alleged Practices

2

i. Array of Services

3

Plaintiff alleges that Defendants have a practice of failing to provide an adequate

4 array of behavioral health and therapeutic services for members of the Medicaid

5 Subclass. (Doc. 430 at 15.) Plaintiff cites the report of her expert Marci White, who

6 asserts that one necessary element in this array is the therapeutic foster home. (Doc. 430

7 at 11.) A therapeutic foster home is one that, after receiving its initial license as a

8 professional foster home, receives specialized training to provide both a home and care to

9 children with such critical behavioral health needs that the only other options are more

10 restrictive (such as a hospital, a residential treatment center, or a therapeutic group

11 home). (Doc. 238-2 at 277–278.) Ms. White examined the availability of therapeutic

12 foster homes and the waitlists for behavioral health services. (Doc. 392-1 at 26–34.) Ms.

13 White states that in 2013, there were 425 therapeutic foster homes for approximately

14 15,000 children, which was characterized at the time by the Arizona Foster Family-based

15 Treatment Association as a shortage. (Id. at 26–27.) According to Ms. White, the

16 numbers of therapeutic foster homes continued to drop, from 310 in February 2016 (with

17 over 19,000 children in care) to fewer than 300 in August 2016 (with 18,287 children in

18 care), even though more than 1,000 “emotionally disturbed adolescents” may need such

19 homes. (Id. at 27.) Ms. White noted that Defendants’ deposition testimony “confirms that

20 there are ‘[n]ot enough [therapeutic foster home] providers and too many children

21 needing that level of care.’” (Id. at 29.) She concluded that “there are too few therapeutic

22 foster” homes, and the “shortage of therapeutic foster care in Arizona creates a serious

23 gap in the array of services available for children in DCS custody.” (Id. at 27–28.)

24 Defendants, who did not offer their own expert, do not contest these figures.

25

Defendants respond that allegations regarding practices of providing inadequate

26 foster home placements and behavioral health services were made with respect to the

27 General Class and the Non-Kinship Subclass, but that no such allegations were made

28 with respect to the Medicaid Subclass in the Second Amended Complaint. (Doc. 435 at

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Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 17 of 32

1 7.) The Court finds that consideration of these practices with respect to the Medicaid

2 Subclass is not foreclosed at the class certification stage because Defendants were put on

3 notice that those specific practices were being challenged, Plaintiff alleged broadly that

4 Defendants “have a practice of failing to provide members of the Medicaid Subclass with

5 the screening, diagnostic and treatment services required under the EPSDT provisions of

6 the Medicaid Act,” and Defendants have not established prejudice. Doc. 37 at 33–34; see

7 Golden Grain Macaroni Co. v. FTC, 472 F.2d 882, 886 (9th Cir. 1972) (complaint put

8 defendant “on notice that the specific practices as well as the alleged over-all scheme . . .

9 were being challenged”).

10

Defendants also respond that 42 C.F.R. § 441.61 requires them only to make

11 providers available, and that Katie A. does not require services to be provided in any

12 particular form. (Doc. 435 at 7–8.) But Defendants misunderstand the law. While 42

13 C.F.R. § 441.61(b) relates to availability, § 441.61(c) orders AHCCCS to “make

14 appropriate use of State health agencies” and “other public health [and] mental health

15 [programs] . . . to ensure an effective child health program.” 42 C.F.R. § 441.61(c)

16 (emphasis added). And while the specific sentence of Katie A. cited by Defendants

17 referred to the Ninth Circuit’s decision that it was not necessary to bundle necessary

18 services as long as a state provided all necessary services separately, the footnote to that

19 sentence concluded that “if the State fails adequately to provide the component services,

20 and the effectiveness of those services requires their coordinated delivery, it may be

21 appropriate to require the State to provide services packaged together in a particular

22 form.” Katie A., 482 F.3d at 1157 n.15. Finally, it is obvious that Arizona cannot ensure

23 an effective child health program if children cannot access healthcare.

24

As established in section I.C, supra, the Medicaid Act requires Defendants to

25 ensure that children actually receive medically necessary services. The Court credits Ms.

26 White’s decades of experience “with the design, implementation, management, and

27 monitoring of behavioral health service systems for children involved in the foster care,

28 mental health, and juvenile justice systems,” and finds her conclusion that “[t]he shortage

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Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 18 of 32

1 of therapeutic foster care in Arizona creates a serious gap in the array of services

2 available for children in DCS custody” to be credible. (Doc. 392-1 at 5, 28.) Accordingly,

3 the Court finds sufficient uncontroverted factual support for purposes of class

4 certification for Plaintiff’s allegation that Defendants have a practice of failing to provide

5 an adequate array of behavioral health and therapeutic services for members of the

6 Medicaid Subclass.

7

ii. Coordination of Services

8

Plaintiff also alleges that Defendants have two practices related to coordination: a

9 practice of failing to coordinate behavioral health services for members of the Medicaid

10 Subclass; and a practice of ineffectively coordinating and monitoring physical and dental

11 health care. (Doc. 430 at 15.) Defendants respond that while Plaintiff alleged a failure to

12 coordinate as a violation of due process, Plaintiff did not explicitly allege that Defendants

13 violated 42 C.F.R. § 441.61(c). (Doc. 435 at 8.)

14

As discussed in Section II.A.i, supra, the Court finds that consideration of these

15 practices with respect to the Medicaid Subclass is not foreclosed at the class certification

16 stage because Defendants were put on notice that those specific practices were being

17 challenged, Plaintiff alleged that Defendants have a practice of “failing to provide

18 members of the Medicaid Subclass with medically necessary diagnostic and treatment

19 services,” and Defendants have not shown prejudice. Doc. 37 at 34; see Golden Grain,

20 472 F.2d at 886.

21

Courts have recognized the essentiality of “centralized, knowledgeable, and

22 painstaking service coordination” in ensuring that children, particularly children with

23 complex behavioral health needs, actually receive all of the treatment to which they are

24 entitled under the Medicaid Act. Rosie D., 410 F. Supp. 2d at 31; id. at 32 (noting that

25 children with complex problems are at risk “that a lack of coordination among the service

26 providers will undermine the effectiveness of the treatment that they do receive”); see G.

27 v. Hawaii, 676 F. Supp. 2d 1006, 1017 (D. Haw. 2009) (stating a program intended to

28 better coordinate services “further[ed] the objectives of the Medicaid Act”).

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Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 19 of 32

1

Plaintiff cites to reports from their experts Ms. White and Arlene Happach

2 regarding the essential role DCS case managers (also known as caseworkers) play in

3 coordinating care. (Doc. 430 at 11–13.) Specifically, Ms. White stated that the Child and

4 Family Team (CFT) process (wherein the primary caregiver, a DCS case manager

5 familiar with a child’s needs and treatment history, and other individuals knowledgeable

6 about a child’s life develop a “behavioral services plan ‘to address the behavioral health

7 treatment needs of the child’”) “remains broken in Arizona and, as a result, children in

8 foster care do not get the behavioral health services they need.” (Doc. 392-1 at 36–37.)

9 Ms. White noted several contributing factors, including the failure of case managers to

10 regularly participate in CFTs; “evidence of insufficient clinical oversight and

11 involvement in CFTs”; inadequately trained CFT facilitators; service plans generated

12 based not on necessary services but on available ones; and a lack of systematic

13 monitoring of the process. (Id. at 37.) The regular absence of case managers from the

14 CFT process was confirmed through discovery, an absence which might delay all

15 behavioral health services requiring DCS consent (including “inpatient psychiatric care

16 services, residential treatment services, therapeutic group homes,” and therapeutic foster

17 homes). (Id. at 38.)

18

Ms. Happach asserted that “the majority of tasks related to placement and

19 permanency are handled by the case manager.” (Doc. 392-5 at 23.) She listed ten

20 responsibilities assigned to each case manager by DCS policy, including developing and

21 monitoring the case plan; “[e]nsuring that a child’s medical needs are met by arranging

22 for each child to have” medical examinations, immunizations, and all necessary follow-

23 ups and referrals; “[e]nsuring that a child’s mental health needs are met” by taking a child

24 to intake and assessment appointments, and “[e]nsuring that appropriate services are

25 received in a timely manner”; and attending CFT meetings. (Id. at 23–25.) Ms. Happach

26 stated that in order for a case manager to complete all tasks for all of the children they are

27 responsible for, the caseload must be manageable. (Id. at 25.) National guidelines

28 promulgated by The Child Welfare League of America recommend a caseload of no

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Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 20 of 32

1 more that 12-15 children in out-of-home placements at one time, while Arizona

2 established a “caseload standard” of 20 children based on an aggregate time study’s

3 finding that a case manager must spend “120 minutes on placing a child, 120 minutes on

4 planning and case management, and 360 minutes on court-mandated activities.” (Id. at

5 26.) Ms. Happach states that in the first quarter of 2018, “about half of DCS’s offices had

6 average out-of-home caseloads of 30 or more.” (Id. at 27.)

7

Despite a significant reduction in the number of children in out-of-home care from

8 16,471 in Q1FY18 to 14,299 in Q4FY19, as of June 2019 many DCS offices continued to

9 have extremely high caseloads. Department of Child Safety, Quarterly Benchmark

10 Progress Report Q4 FY2019 at 5–6 (Sept. 30, 2019).19 For example, out of seven sections

11 in the Maricopa-East Region with at least one out-of-home child per worker, one section

12 had a caseload of 22 children per worker and the other six sections had caseloads of 25 or

13 more (as high as 38 children per worker). Id. at 6. Similarly, in the Maricopa-West

14 Region, out of eight sections with at least one out-of-home child per worker, seven

15 sections had caseloads over 20 children, including six sections with caseloads of 25 or

16 more, and as high as 32 children per worker. Id. In fact, of the 34 Arizona sections with at

17 least one out-of-home child per worker, nine sections had caseloads of between one and

18 20 children, in accordance with Arizona’s standards; eight sections had caseloads of 21-

19 24 children; 12 sections had caseloads of 25-29 children; and five sections had caseloads

20 of over 30 children per worker. Id. This means that 74% of DCS case managers have

21 caseloads that are not manageable under DCS’s own standard.

22

Ms. Happach concluded that overburdened case managers put children at risk,

23 noting that 75% of the time, case managers “failed to update their continuous child safety

24 and risk assessment at the times required by policy,” and “efforts to assess the physical

25 19 Available at https://dcs.az.gov/news-reports/dcs-reports. The Court takes judicial

26

notice of this progress report. Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992, 999 (9th Cir. 2010) (holding courts may take judicial notice of information made publicly

27

available by government entities on government websites). Each quarterly report “on the progress made in meeting the caseload standard and reducing the number of backlog

28

cases and out-of-home children” “shall include the number of backlog cases, the number of open reports, the number of out‑of‑home children and the caseworker workload in

comparison to the previous quarter.” 2019 Ariz. Legis. Serv. Ch. 263 (H.B. 2747) (West).

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Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 21 of 32

1 health needs of children were inadequate in a third of the cases.” (Doc. 392-5 at 29.)

2

The Court credits Plaintiff’s uncontroverted expert opinions that caseworkers are

3 essential to the proper coordination of physical, dental, and behavioral health care, and

4 that an overloaded case manager with an unmanageable caseload is not properly

5 coordinating the delivery of such care. The Court also takes judicial notice of the most

6 recent DCS caseload progress report, which reported 74% of sections had unmanageable

7 caseloads. Therefore, the Court finds sufficient factual support for purposes of class

8 certification for Plaintiff’s allegations that Defendants have a practice of failing to

9 coordinate behavioral health services for members of the Medicaid Subclass, and a

10 practice of ineffectively coordinating and monitoring physical and dental health care.

11

iii. Timeliness of Mental Health Services

12

Plaintiff alleges that Defendants have a practice of failing to provide Medicaid

13 Subclass members with timely mental health services. (Doc. 430 at 15.) Defendants do

14 not respond specifically to this allegation, but respond to the two “timeliness” allegations

15 (regarding the provision of mental health services, and the provision of well-child visits

16 and immunizations) collectively. (Doc. 435 at 8–12.)

17

To support this allegation, Plaintiff cites to Ms. White’s expert report. (Doc. 430 at

18 11.) Ms. White devoted several pages of her expert report to her assertion that “Children

19 Do Not Receive Timely Mental and Behavioral Health Services Required in Their First

20 30 Days in Care.” (Doc. 392-1 at 14–17.) Ms. White states that after DCS brings a child

21 into foster care, DCS refers that child to a community-based managed care organization

22 (known as a Regional Behavioral Health Authority, or “RBHA”) for a “‘Rapid Response’

23 to assess the mental and behavioral health needs of the child.” (Id. at 14.) The RBHA

24 must conduct the Rapid Response within 72 hours of receiving the referral and forward

25 the assessment results to DCS. (Id. at 14–15.) If the Rapid Response assessment identifies

26 a child as needing mental and behavioral health services, the child is then “referred for an

27 ‘intake appointment’ or ‘initial evaluation and assessment’ with a RBHA, where the DCS

28 case worker is supposed to accompany the child.” (Id. at 15.) The initial assessment

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Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 22 of 32

1 should occur within 7 days of the Rapid Response referral and, if the initial assessment

2 determines that services are required, the first service must be received within 21 days of

3 the initial assessment. Id.; A.R.S. § 8-512.01.

4

Ms. White reviewed “updated data the RBHAs reported to AHCCCS,” and

5 concluded that in 2016 one of the three RBHAs met the timeliness requirements for under

6 10% of the foster children it serves, while the other two RBHAs also fell significantly

7 below the standards. (Doc. 392-1 at 16–17.) Although Defendants chose not to cite to

8 their own expert in their response to the class certification motion, their expert Dr. Robert

9 M. Freidman confirmed the Rapid Response timeline, and concluded that the data,

10 particularly for the seven-day and 21-day timelines, “shows a continuing need for

11 improvement.” (Doc. 393-1 at 16–17.) Dr. Friedman noted that encounter data from FY

12 2017 showed that only 56.39% of newly enrolled children received a behavioral health

13 assessment within seven days, while 79.67% received a service within 21 days,

14 concluding “This is clearly still a work in progress.” (Id. at 17.)

15

Defendants broadly challenge all of Plaintiff’s experts for failing to cite a

16 Medicaid standard. Ms. White’s failure to recite specific statutes does not affect the

17 reliability of her facts and opinions. The Medicaid Act requires Defendants to provide

18 screening services necessary “to determine the existence of certain physical or mental

19 illnesses or conditions.” 42 U.S.C. § 1396d(r)(1)(A)(ii). Arizona law requires these

20 services to be provided on the schedule Ms. White described. A.R.S. § 8-512.01. If

21 children do not receive necessary services in a timely manner, the ultimate responsibility

22 lies with Defendants. Accordingly, the Court credits Ms. White’s report and finds

23 sufficient factual support for purposes of class certification for Plaintiff’s allegation that

24 Defendants have a practice of failing to provide Medicaid Subclass members with timely

25 mental health services.

26

iv. Timeliness of Well-Child Visits

27

Finally, Plaintiff alleges Defendants have a practice of failing to provide members

28 of the Medicaid Subclass with timely well-child visits and immunizations. (Doc. 430 at

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Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 23 of 32

1 15.) Defendants respond that “the great majority of foster care children get their services

2 according to the periodicity schedules.” (Doc. 435 at 11.)

3

Both parties have provided statistical figures illustrating what percentage of

4 children in the custody of the Arizona foster care system received the mandated well-

5 child physical examination in the years 2012 through 2016. An examination of these

6 statistics supports the conclusion that, in the past, each year approximately one-quarter to

7 one-third of foster children did not receive their well-child examination.

8

The AMPM requires that the well-child examination be performed at least one

9 time per year. Defendants cite the 2015-2016 Annual Report for Acute Care and

10 DES/CMDP, which calculated treatment figures based on a combination of

11 administrative data collected from the automated managed care data system, and data

12 collected by contractors from medical and/or case management records. (Doc. 435-2 at

13 79.) For 2012, 63.7% of children ages 3–6, and 63.8% of adolescents,20 received their

14 well-care visits. (Id.) Defendants’ statistics necessarily imply that 36.3% of children ages

15 3–6 and 36.2% of adolescents did not receive their well-care visits. For 2013, 71.8% of

16 children ages 3–6, and 68.3% of adolescents, received their well-care visits. (Doc. 435-2

17 at 79.) Again, this implies that in 2013 28.2% of children ages 3–6 and 31.7% of

18 adolescents did not receive such care. The Court finds that 63.7%, 63.8%, 71.8%. or

19 68.3% is not an “overwhelming majority.” (See Doc. 435 at 9.)

20

Plaintiff cites the expert report of Dr. Steven Blatt, who examined the quarterly

21 CMDP EPSDT Adult and performance Measure Monitoring Reports from 2014–17.

22 (Doc. 392-3 at 6–7.) Dr. Blatt concluded that in 2014, 24%–29.9% of children ages 3–6

23 and 32.2%–33.9% of adolescents ages 12–21 did not receive an annual well-child exam,

24 depending on the quarter. (Id. at 7.) He concluded that the 2015 figures were 27.3%–

25 29.9% for children and 32.5%–34.1% for adolescents; the 2016 figures were 27.5%–

26 29.4% for children and 34.8%–35.5% for adolescents in Q1, Q3, and Q4 (the Court notes

27

28

20 Defendants do not define the term “adolescents,” but Plaintiff’s expert Dr. Steven Blatt, citing a similar report, defines “Adolescent Well-Child Visits” to include the data

of children between the ages of 12 and 21. (Doc. 392-3 at 7 n.22.)

- 23 -

Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 24 of 32

1 that the statistic of 4.1% in Q2 2016 appears to be a typographical error); and the figures

2 for the first two quarters of 2017 were 26%–27% for children and 32% for adolescents.

3 (Id.) The Court notes that these figures change quarterly, and attributes that to the “churn

4 in members” as some children are reunified or adopted, while other children are enrolled.

5 (Doc. 238-1 at 128.)

6

The statistics provided by the parties regarding children who specifically did not

7 receive well-child visits all fall within the range of 24% to 36.3%. However, the statistics

8 for EPSDT participation more broadly differ significantly. The Court attributes a portion

9 of this differential likely to inconsistent definitions. Defendants, who do not define the

10 term, state that EPSDT participation was 100% in 2012 and 92.6% in 2013; in other

11 words, 0% of children in 2012 and 7.4% of children in 2013 did not participate. (Doc.

12 435-2 at 79.) Plaintiff’s expert Dr. Blatt defines the EPSDT Participation Rate as “the

13 total number of children in CMDP who received at least one documented initial or

14 periodic screen during the year, divided by the total number of children who should have

15 received at least one initial or periodic screen, under the state’s periodicity schedule.”

16 (Doc. 392-3 at 7 n.18.) Dr. Blatt calculated that the “Total Percent of Children who did

17 not Participate in EPSDT Well-Child Exams” was 16.1%–18.4% in 2014; 17.2%–19.8%

18 in 2015; and 22%–51.7% in 2016. (Id.)

19

Plaintiff’s expert Dr. Paul Zurek performed an analysis of EPSDT participation

20 using data only for children who were in foster care between January 1, 2015 and August

21 18, 2017. (Doc. 392-4 at 4.) That is, all children who were in foster care in 2012-2014,

22 but were no longer in care on January 1, 2015, were included in Defendants’ data and Dr.

23 Blatt’s data but not in Dr. Zurek’s data. Accordingly, Dr. Zurek had only 1,345

24 observations for 2012, as opposed to 19,472 observations for 2016. (Doc. 392-4 at 26.)

25 Dr. Zurek found the percentage of mandated EPSDT exams received to be 67.51% in

26 2012, 68.63% in 2013, 70.09% in 2014, 68.98% in 2015, and 70.81% in 2016. (Id.) This

27 means that the percentages of children who did not receive EPSDT exams was 32.49% in

28 2012, 31.37% in 2013, 29.91% in 2014, 31.02% in 2015, and 29.19% in 2016.

- 24 -

Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 25 of 32

1

The Court finds the statistics provided by both parties to be credible, and attributes

2 the variations in the figures to the variations in the data sources and methods of analysis.

3 Defendants and Dr. Blatt relied upon the regular reports produced by AHCCCS in

4 accordance with 42 U.S.C. § 1396a(a)(43)(D), while Dr. Zurek relied on the raw data

5 provided by DCS in discovery. Accordingly, the Court finds that in the past, each year

6 approximately one-quarter to one-third of Medicaid-eligible children in the custody of

7 Arizona’s foster care system did not receive the EPSDT well-child examinations

8 mandated by the Medicaid Act. In other words, the Court finds sufficient factual support

9 for purposes of class certification for Plaintiff’s allegation that Defendants have a policy

10 or practice of failing to provide members of the Medicaid Subclass with timely well-child

11 visits and immunizations.

12

In sum, the Court has reviewed the five policies and practices alleged by Plaintiff,

13 namely failure to provide an adequate array of behavioral health and therapeutic services;

14 failure to coordinate behavioral health services; ineffective coordination and monitoring

15 of physical and dental health care; failure to timely provide mental health services; and

16 failure to timely provide well-child visits and immunizations. In all instances, the Court

17 finds sufficient factual support for the purposes of class certification for Plaintiff’s

18 allegations these policies and practices create a significant uniform risk that members of

19 the Medicaid Subclass will not receive necessary physical, dental, and behavioral health

20 services, in violation of the Medicaid statute.

21

B. Significance of risk and imminence of violation

22

Having found that in the past, approximately one-quarter to one-third of Medicaid-

23 eligible children in the custody of Arizona’s foster care system did not receive the

24 EPSDT well-child examinations mandated by the Medicaid Act, which constituted a

25 violation of the Medicaid Act, the Court must determine whether every member of the

26 Medicaid Subclass is subject to an identical significant risk of an imminent future

27 Medicaid violation that would support injunctive relief. There is no directly applicable

28 guidance in the Ninth Circuit as to what level of risk constitutes a significant risk of a

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Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 26 of 32

1 statutory violation, but the Ninth Circuit’s findings in Parsons are instructive.

2

The Parsons court noted that every individual in the custody of a state agency “is

3 necessarily subject to the same medical, mental health, and dental care policies and

4 practices of [the agency]. And any one of them could easily fall ill, be injured, need to fill

5 a prescription, require emergency or specialist care, crack a tooth, or require mental

6 health treatment.” Parsons, 754 F.3d at 678. Furthermore, the Parsons court found that a

7 case involving both “uniform statewide practices created and overseen by two individuals

8 who are charged by law with ultimate responsibility for health care” and thousands of

9 individuals “in the custody of a single state agency,” looking at the question of “whether

10 current conditions . . . create a risk of future harm, was a case where “‘the questions of

11 law are applicable in the same manner to each potential class member.’” Id. at 681–682

12 (quoting Hughes v. Judd, No. 8:12-CV-568-T-23MAP, 2013 WL 1821077, at *23 (M.D.

13 Fla. Mar. 27, 2013), report and recommendation adopted as modified, No. 8:12-CV-568-

14 T-23MAP, 2013 WL 1810806 (M.D. Fla. Apr. 30, 2013)).

15

Similar logic applies to “suits challenging a state’s provision of social services to

16 children in its protection.” Id. at 682. Simply by virtue of being in foster care, all

17 Medicaid Subclass members are subject to the same purportedly deficient practices, and

18 therefore all Medicaid Subclass members are allegedly exposed to the same risk of harm.

19 Id. (citing DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1196 (10th Cir. 2010)). The

20 only real dispute is the magnitude of that risk of harm.

21

The Ninth Circuit inquired into the imminence of harm when it determined

22 whether Plaintiff had standing to bring a Medicaid Act claim in the first place,

23 concluding that she did. Tinsley, 922 F.3d at 973–74. The Ninth Circuit held that an

24 allegation “that the [Defendants] have ‘a practice of failing to provide members of the

25 Medicaid Subclass with the screening, diagnostic, and treatment services required under

26 the EPSDT provisions of the Medicaid Act,’ . . . if true, would demonstrate . . . ‘a

27 sufficient likelihood that [Plaintiff] will again be wronged in a similar way,’ which would

28 be redressable by an injunction ordering [Defendants] to abate the policies and/or

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Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 27 of 32

1 practices that caused the delivery failure.” Id. at 974 (citing Haro v. Sebelius, 747 F.3d

2 1099, 1108 (9th Cir. 2014)). The Ninth Circuit further held that at the class certification

3 stage, a plaintiff can meet their evidentiary burden if the plaintiff’s “allegations are

4 detailed and supported by additional materials.” Id. (citing Parsons, 754 F.3d at 683).

5

In other cases, courts in the Ninth Circuit set the bar for what percentage of a

6 chance of something occurring constitutes a significant risk to be very low. See generally

7 Ortiz ex rel. Ortiz v. United States, No. CIV F03-6541 AWISMS, 2007 WL 404899, at

8 *6 (E.D. Cal. Feb. 2, 2007) (“Plaintiff was at significant risk of cerebral palsy, meaning

9 that there was a 20% chance of cerebral palsy and an 80% chance that Plaintiff was not

10 going to have cerebral palsy. . .”); see also Campbell v. Wood, 18 F.3d 662, 712 (9th Cir.

11 1994) (“Although such a slow and painful death will occur in only a comparatively small

12 percentage of cases, every single hanging involves a significant risk that it will occur.”).

13 Plaintiff’s expert Dr. Zurek examined medical records dating back to 7/14/98 for children

14 who were in foster care from 1/1/15 to 8/18/17, over 19 years of data. (Doc. 392-4 at 20.)

15 Over that time, 31.52% of children received less than half of the mandated EPSDT

16 examinations, including 16.26% who did not receive any EPSDT examinations at all.

17 (Id.) These statistics, and the statistics discussed in Section II.A.iv, supra, are higher than

18 the percentages courts in the Ninth Circuit have previously held to constitute a significant

19 risk.

20

Considering the factual evidence, the caselaw on what constitutes a significant

21 risk, and the Ninth Circuit’s previous holding in this matter that factual support for the

22 allegation that Defendants have a “practice of failing to provide members of the Medicaid

23 Subclass with the screening, diagnostic, and treatment services required under the

24 EPSDT provisions of the Medicaid Act” would demonstrate a likelihood of future harm

25 that is appropriately redressable by an injunction, Tinsley, 922 F.3d at 974, the Court

26 finds that the risk that a child in the Medicaid Subclass will not receive timely and

27 adequate EPSDT services is significant, and that for purposes of class certification there

28 is a common question whether every member of the Medicaid Subclass is exposed to a

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Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 28 of 32

1 significant risk of an imminent future Medicaid violation.

2

C. Numerosity and Adequacy

3

Defendants do not dispute that Plaintiff meets the requirements of numerosity and

4 adequacy of representation. (Doc. 435 at 20.) The Court agrees Plaintiff has satisfied that

5 burden. (Doc. 363 at 12, 20.)

6

D. Typicality

7

Having found commonality, numerosity, and adequacy, the court must analyze

8 “whether B.K. is typical of those in the Medicaid Subclass” and “whether every other

9 child had, like B.K., been denied adequate medical care or was subject to an imminent

10 risk of a statutory violation.” Tinsley, 922 F.3d at 976 n.4.

11

Defendants contend that “the evidence shows that the Defendants consistently

12 provided EPSDT services to B.K. when the need arose and nothing suggests she will be

13 harmed by an imminent Medicaid violation.” (Doc. 435 at 18–19.) Defendants argue that

14 “every class member’s claim of inadequate, untimely, or ineffective service would be a

15 fact-intensive dispute typical of no other class member’s claim. Plaintiffs thus have not

16 shown B.K.’s exposure to an identical, class-wide, imminent risk that is typical of other

17 class members.” (Doc. 435 at 19.)

18

The Medicaid Act requires that eligible children receive “Such other necessary

19 health care, diagnostic services, treatment, and other measures described in subsection (a)

20 to correct or ameliorate defects and physical and mental illnesses and conditions

21 discovered by the screening services, whether or not such services are covered under the

22 State plan.” 42 U.S.C. § 1396d(r)(5). Plaintiff alleges she failed to receive the treatment

23 necessary to correct or ameliorate a physical condition that had been discovered by the

24 screening services in a timely manner. Such an allegation, if true, would constitute a

25 violation of the Medicaid Act.

26

In June 2013, notes from B.K’s caseworkers indicate that B.K. was limping. (Doc.

27 392-2 at 13, 59.) In October 2014, over a year later, B.K.’s therapist noted that B.K.’s

28 limp had not been addressed. (Id. at 59.) B.K.’s primary care doctor referred her to a

- 28 -

Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 29 of 32

1 December, 2014 appointment with an orthopedist, but it appears that this appointment did

2 not take place. (Id.) B.K.’s physical difficulties continued through the summer of 2015,

3 when another orthopedist appointment was apparently scheduled, though it appears that

4 appointment did not take place. (Id. at 59–60.) B.K. did not receive insoles until March,

5 2016. (Id. at 60.) Even if the first official request for screening services were October

6 2014, when B.K.’s primary care physician referred her to an orthopedist, rather than June

7 2013 when the need for healthcare was first identified, the Medicaid Act requires that

8 B.K. have received treatment no later than April, 2015. Instead, B.K. suffered “difficulty

9 walking, pain, and falls” for another 11 months until she finally received her insoles. (Id.)

10 The confidential summary Defendants provided regarding the treatment of B.K.’s feet

11 confirms she did not receive timely treatment of this condition. (Doc. 437 at 12.) In

12 addition, Defendants’ confidential summary of dental health services provided to B.K

13 establishes she did not receive dental examinations as required under the schedule. (Id. at

14 10–11.)

15

The Medicaid Act’s requirements for EPSDT services are broad, and cover

16 everything from the annual well-child visits discussed in Section II.B.iv, supra, to

17 treatment for a bad foot. The Court has found that in any given year, roughly a quarter to

18 a third of the Medicaid Subclass does not receive timely and adequate EPSDT services;

19 and the record supports a finding that Defendants did not “ensure timely initiation of

20 treatment, if required, generally within an outer limit of 6 months after the request for

21 screening services,” in violation of 42 C.F.R. § 441.56(e), when B.K. did not receive

22 treatment for her foot problems for over two and a half years. (Doc. 392-2 at 13.) The

23 record also supports a finding that B.K. did not receive timely dental examinations. (Doc.

24 437 at 10–11.)

25

Accordingly, the Court finds that B.K. is typical of the class. In Parsons, the Ninth

26 Circuit explicitly rejected arguments in this context about how named plaintiffs may have

27 in the past suffered varying injuries or how they may currently have different health care

28 needs. Parsons, 754 F.3d at 686. The Ninth Circuit held Rule 23(a)(3) requires only that

- 29 -

Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 30 of 32

1 a named plaintiff’s claims be “typical” of the class, not that the named plaintiff be

2 identically positioned to each other or to every class member. Id. (citing Ellis v. Costco

3 Wholesale Corp., 657 F.3d 970, 985 n.9 (9th Cir. 2011) (finding that typicality is not

4 defeated by different factual scenarios when they result in a claim of the same nature)).

5 Thus, Plaintiff satisfies typicality, and has exposure to an identical, class-wide, imminent

6 risk that is typical of other class members.

7

E. Rule 23(b)(2)

8

Certification under this rule requires that “the party opposing the class has acted or

9 refused to act on grounds that apply generally to the class, so that final injunctive relief or

10 corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R.

11 Civ. P. 23(b)(2). Defendant argues that Plaintiff has not identified a practice by

12 Defendants and shown how it causes denials of medically necessary health care, and

13 therefore there is no “remediable class-wide Medicaid violation.” (Doc. 435 at 20.)

14

As explored in detail above, Plaintiff has identified five practices which she

15 alleges “create a significant uniform risk that Subclass members will not receive

16 necessary physical, dental, and behavioral health services, in violation of the Medicaid

17 statute.” (Doc. 430 at 15.)

18

The Ninth Circuit, in addressing this argument by Defendants regarding the

19 General Class, dismissed it:

20

[Defendants] next argue that the district court erred because the

plaintiffs failed to provide a specific injunction that could satisfy Rule

21

23(b)(2) and Rule 65(d). This argument has no basis in existing law,

22

whether in the text of the Federal Rules or in our precedent. Plaintiffs do not need to specify the precise injunctive relief they will ultimately seek at

23

the class certification stage. Instead, as we have explained before, Rule

24

23(b)(2) “ordinarily will be satisfied when plaintiffs have described the general contours of an injunction that would provide relief to the whole

25

class, that is more specific than a bare injunction to follow the law, and that

can be given greater substance and specificity at an appropriate stage in the

26

litigation through fact-finding, negotiations, and expert testimony.”

27

Parsons, 754 F.3d at 689 n.35. . . . A more specific injunction will depend

on further fact-finding and what claims the plaintiffs actually prove through

28

further litigation.

- 30 -

Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 31 of 32

1

Plaintiff “seek[s] an injunction on behalf of the Medicaid Subclass to ‘develop and

2 implement, as soon as practical, a plan to eliminate’ the risk of violation of the Medicaid

3 statute stemming from Defendants’ inadequate policies and practices,” and states that one

4 aspect of such a plan might be increased hiring of caseworkers. (Doc. 430 at 22, quoting

5 Parsons, 754 F.3d at 687.) Plaintiff has adequately described the general contours of an

6 injunction that would provide relief to the whole class. Thus, this requirement is satisfied.

7

F. Appointment of Counsel

8

The Court has previously appointed Perkins Coie LLP, Arizona Center for Law in

9 the Public Interest, and Children’s Rights, Inc. as class counsel for the General Class and

10 the Non-Kinship Subclass. (Doc. 363 at 22.) Class counsel must fairly and adequately

11 represent the interests of the class. Fed. R. Civ. P. 26(g)(4). The Court found in 2017 that

12 Plaintiff’s counsel satisfied the four requirements under Rule 26(g)(4), and the Court now

13 finds that Plaintiff’s counsel’s diligent litigation over the past two years confirms that

14 they satisfy the four requirements under Rule 26(g)(4) to represent the Medicaid Subclass

15 as well. Thus, the Court will appoint Plaintiff’s counsel as counsel for the Medicaid

16 Subclass.

17

CONCLUSION

18

The Court holds for purposes of class certification that there is a common question

19 whether every member of the Medicaid Subclass is subject to an identical significant risk

20 of a future Medicaid violation that would support injunctive relief. Because there is no

21 dispute as to numerosity or adequacy, and the Court holds B.K. is typical, class

22 certification is appropriate.

23

Accordingly,

24

IT IS ORDERED Plaintiff’s motion to certify the Medicaid Subclass (Doc. 430)

25 is GRANTED. The Court certifies the Medicaid Subclass as: All members of the General

26 Class who are entitled to early and periodic screening, diagnostic, and treatment services

27 under the federal Medicaid statute.

28

IT IS FURTHER ORDERED B.K., by her next friend Margaret Tinsley, is

- 31 -

Case 2:15-cv-00185-ROS Document 461 Filed 10/11/19 Page 32 of 32

1 appointed as Class Representative for the Medicaid Subclass.

2

IT IS FURTHER ORDERED Perkins Coie LLP, Arizona Center for Law in the

3 Public Interest, and Children’s Rights, Inc. are appointed as Class Counsel for the

4 Medicaid Subclass.

5

Dated this 11th day of October, 2019.

6

7

8

Honorable Roslyn O. Silver

9

Senior United States District Judge

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 32 -

 
 Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 1 of 44
CLASSACT,PROTO,STD
U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:15−cv−00185−ROS

Tinsley et al v. Flanagan et al Assigned to: Senior Judge Roslyn O Silver Case in other court: Ninth Circuit Court of Appeals, 17−17501
− Mandate 07/24/19
Ninth Circuit Court of Appeals, 17−17502 − Mandate 07/24/19
Ninth Circuit Court, 17−80211, Termed 12/19/17
Ninth Circuit Court, 17−80212, Termed 12/19/17 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 02/03/2015 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Margaret Tinsley on behalf of minors: next friend of B.K.

represented by Aaron Finch Children's Rights Wall Street Plz. 88 Pine St., Ste. 800 New York, NY 10005 212−683−2210 Fax: 212−683−4015 Email: afinch@childrensrights.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Adriana Teresa Luciano Childrens Rights Incorporated 330 7th Ave., 4th Fl. New York, NY 10001 212−683−2210 Fax: 212−683−4015 Email: aluciano@childrensrights.org TERMINATED: 07/07/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anne C Ronan Arizona Center for Law In The Public Interest − Phoenix, AZ 202 E McDowell Rd., Ste. 153 Phoenix, AZ 85004 602−258−8850 Fax: 602−258−8757 Email: aronan@aclpi.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Jay Adelman Adelman German PLC 8245 N 85th Way Scottsdale, AZ 85258 480−607−9166 Fax: 480−607−9031 Email: danny@aclpi.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 2 of 44
Erin Geloff McGuinness Childrens Rights Wall Street Plz. 88 Pine St., Ste. 800 New York, NY 10005 212−683−2210 Fax: 212−683−4015 Email: emcguinness@childrensrights.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Harry Frischer Childrens Rights Wall Street Plz. 88 Pine St., Ste. 800 New York, NY 10005 212−683−2210 Fax: 212−683−4015 Email: hfrischer@childrensrights.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ira Lustbader Childrens Rights Wall Street Plz. 88 Pine St., Ste. 800 New York, NY 10005 646−216−3318 Email: ilustbader@childrensrights.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph E Mais Perkins Coie LLP − Phoenix, AZ 2901 N Central Ave., Ste. 2000 Phoenix, AZ 85012 602−351−8000 Fax: 602−648−7180 Email: JMais@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julia Lucia Davis Childrens Rights Incorporated 330 7th Ave., 4th Fl. New York, NY 10001 212−683−2210 Fax: 212−683−4015 Email: jdavis@childrensrights.org TERMINATED: 01/23/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn Anne Wood Childrens Rights Wall Street Plz. 88 Pine St., Ste. 800 New York, NY 10005 212−683−2210 Fax: 212−683−4015 Email: kwood@childrensrights.org TERMINATED: 10/11/2016

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 3 of 44
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Keith Beauchamp Coppersmith Brockelman PLC 2800 N Central Ave., Ste. 1900 Phoenix, AZ 85004 602−224−0999 Fax: 602−224−6020 Email: kbeauchamp@cblawyers.com TERMINATED: 03/03/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel Brodin Nili Childrens Rights Incorporated 330 7th Ave., 4th Fl. New York, NY 10001 212−683−2210 Fax: 212−683−4015 Email: rnili@childrensrights.org TERMINATED: 05/24/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roopali H Desai Coppersmith Brockelman PLC 2800 N Central Ave., Ste. 1900 Phoenix, AZ 85004 602−381−5478 Fax: 602−224−6020 Email: rdesai@cblawyers.com TERMINATED: 03/03/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shane R Swindle Perkins Coie LLP P.O. Box 400 Phoenix, AZ 85001−0400 602−351−8000 Fax: 602−648−7184 Email: SSwindle@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shelley Tolman Coppersmith Brockelman PLC 2800 N Central Ave., Ste. 1900 Phoenix, AZ 85004 602−381−5488 Fax: 602−224−6020 Email: stolman@cblawyers.com TERMINATED: 03/03/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephanie Persson Childrens Rights Wall Street Plz. 88 Pine St., Ste. 800 New York, NY 10005 212−683−2210 Email: spersson@childrensrights.org LEAD ATTORNEY

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 4 of 44

PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen Dixon Childrens Rights Wall Street Plz. 88 Pine St., Ste. 800 New York, NY 10005 212−216−9690 Fax: 212−683−4015 Email: sdixon@childrensrights.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Timothy Michael Hogan Arizona Center for Law in the Public Interest − Tucson, AZ 2205 E Speedway Blvd. Tucson, AZ 85719 520−529−1798 Fax: 520−529−2927 Email: thogan@aclpi.org TERMINATED: 02/06/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

William A Kapell Childrens Rights Incorporated 330 7th Ave., 4th Fl. New York, NY 10001 212−683−2210 Fax: 212−683−4015 Email: wkapell@childrensrights.org TERMINATED: 05/24/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniele Gerard Childrens Rights Wall Street Plz. 88 Pine St., Ste. 800 New York, NY 10005 212−683−2210 Fax: 212−683−4015 Email: dgerard@childrensrights.org PRO HAC VICE ATTORNEY TO BE NOTICED

Philip Barber Childrens Rights Incorporated 330 7th Ave., 4th Fl. New York, NY 10001 212−683−2210 Fax: 212−683−4015 Email: pbarber@childrensrights.org TERMINATED: 01/23/2017 ATTORNEY TO BE NOTICED

Plaintiff
Jennifer Kupiszewski on behalf of minors: next friend of C.P.

represented by Aaron Finch (See above for address) LEAD ATTORNEY PRO HAC VICE

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 5 of 44

next friend of B.T.

ATTORNEY TO BE NOTICED
Anne C Ronan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Jay Adelman Adelman German PLC 8245 N 85th Way Scottsdale, AZ 85258 480−607−9166 Fax: 480−607−9031 Email: danny@adelmangerman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin Geloff McGuinness (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Harry Frischer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ira Lustbader (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E Mais (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julia Lucia Davis (See above for address) TERMINATED: 01/23/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathryn Anne Wood (See above for address) TERMINATED: 10/11/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Keith Beauchamp (See above for address) TERMINATED: 03/03/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roopali H Desai (See above for address) TERMINATED: 03/03/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shane R Swindle

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 6 of 44

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

Shelley Tolman (See above for address) TERMINATED: 03/03/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie Persson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen Dixon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Timothy Michael Hogan (See above for address) TERMINATED: 02/06/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

William A Kapell (See above for address) TERMINATED: 05/24/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adriana Teresa Luciano (See above for address) TERMINATED: 07/07/2016 ATTORNEY TO BE NOTICED

Daniele Gerard (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Philip Barber (See above for address) TERMINATED: 01/23/2017 ATTORNEY TO BE NOTICED

Rachel Brodin Nili (See above for address) TERMINATED: 05/24/2016 ATTORNEY TO BE NOTICED

Plaintiff
Susan Brandt on behalf of minors: TERMINATED: 04/20/2015 next friend of A.A. next friend of A.C.B. next friend of M.C.B.

represented by Anne C Ronan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph E Mais (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 7 of 44

next friend of J.C.B. next friend of D.C.B. next friend of J.M. next friend of J.C.

Julia Lucia Davis (See above for address) TERMINATED: 01/23/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Keith Beauchamp (See above for address) TERMINATED: 03/03/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roopali H Desai (See above for address) TERMINATED: 03/03/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shane R Swindle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shelley Tolman (See above for address) TERMINATED: 03/03/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen Dixon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Timothy Michael Hogan (See above for address) TERMINATED: 02/06/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

William A Kapell (See above for address) TERMINATED: 05/24/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Susan Brandt on behalf of minors: next friend of A.T. TERMINATED: 01/19/2016 next friend of A.C.B. next friend of M.C.B. next friend of J.C.B. TERMINATED: 08/23/2016 next friend of D.C.B. next friend of

represented by Aaron Finch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Anne C Ronan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Jay Adelman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 8 of 44

J.M. next friend of J.C. TERMINATED: 01/19/2016

Erin Geloff McGuinness (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Harry Frischer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ira Lustbader (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E Mais (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julia Lucia Davis (See above for address) TERMINATED: 01/23/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathryn Anne Wood (See above for address) TERMINATED: 10/11/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shane R Swindle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie Persson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen Dixon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Timothy Michael Hogan (See above for address) TERMINATED: 02/06/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

William A Kapell (See above for address) TERMINATED: 05/24/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 9 of 44
Daniele Gerard (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Philip Barber (See above for address) TERMINATED: 01/23/2017 ATTORNEY TO BE NOTICED

V. Defendant Charles Flanagan in his official capacity as Director of the Arizona Department of Child Safety TERMINATED: 02/25/2015
Defendant William Humble in his official capacity as Director of the Arizona Department of Health Services TERMINATED: 03/16/2015
Defendant Gregory McKay Director, Arizona Department of Child Safety TERMINATED: 09/27/2019

represented by David Daniel Weinzweig Office of the Attorney General − Phoenix 2005 N Central Ave. Phoenix, AZ 85004−1592 602−542−7989 Fax: 602−364−2214 TERMINATED: 02/06/2018 LEAD ATTORNEY
Robert Lawrence Ellman Ellman Law Group LLC 3030 N Central Ave., Ste. 1110 Phoenix, AZ 85012 480−630−6490 Email: rle@elgarizona.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel Patrick Struck Struck Love Bojanowski & Acedo PLC 3100 W Ray Rd., Ste. 300 Chandler, AZ 85226 480−420−1600 Email: dstruck@strucklove.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen L Wieneke Wieneke Law Group PLC 1095 W Rio Salado Pkwy., Ste. 209 Tempe, AZ 85281 602−715−1986 Email: kwieneke@wienekelawgroup.com TERMINATED: 08/25/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cynthia Christine Albracht−Crogan Cohen Dowd Quigley PC Camelback Esplanade I 2425 E Camelback Rd., Ste. 1100 Phoenix, AZ 85016 602−252−8400 Fax: 602−252−5339 Email: ccrogan@cdqlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 10 of 44
Daniel P Quigley Cohen Dowd Quigley PC Camelback Esplanade I 2425 E Camelback Rd., Ste. 1100 Phoenix, AZ 85016 602−252−3076 Fax: 602−252−5339 Email: dquigley@cdqlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Daniel Weinzweig (See above for address) TERMINATED: 02/06/2018 LEAD ATTORNEY
Gary N Lento Office of the Attorney General − Phoenix 1275 W Washington St. Phoenix, AZ 85007−2997 602−364−0681 Email: gary.lento@azag.gov TERMINATED: 12/08/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Robert Zimmerman Snell & Wilmer LLP − Phoenix, AZ 1 Arizona Center 400 E Van Buren Phoenix, AZ 85004−2202 602−382−6000 Email: joshua.zimmerman@bowmanandbrooke.com TERMINATED: 10/24/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren Marie LaPrade Cohen Dowd Quigley PC Camelback Esplanade I 2425 E Camelback Rd., Ste. 1100 Phoenix, AZ 85016 602−252−8400 Fax: 602−252−5339 Email: llaprade@cdqlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melanie Grace McBride Office of the Attorney General − Phoenix 2005 N Central Ave. Phoenix, AZ 85004−1592 602−542−8305 Fax: 602−542−8308 Email: Melanie.McBride@azag.gov TERMINATED: 04/26/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lawrence Ellman (See above for address) LEAD ATTORNEY
Stacey Faith Gottlieb

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 11 of 44

Cohen Dowd Quigley PC Camelback Esplanade I 2425 E Camelback Rd., Ste. 1100 Phoenix, AZ 85016 602−252−8400 Fax: 602−252−5339 Email: sgottlieb@cdqlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wendy Jacobsen Harrison Office of the Attorney General − Phoenix 1275 W Washington St. Phoenix, AZ 85007−2997 602−542−9413 Fax: 602−364−0055 Email: Wendy.Harrison@azag.gov TERMINATED: 12/08/2017 ATTORNEY TO BE NOTICED

Defendant
Cory D Nelson in his official capacity as Interim Director of the Arizona Department of Health Services TERMINATED: 06/08/2015

represented by Daniel Patrick Struck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen L Wieneke (See above for address) TERMINATED: 08/25/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicholas Daniel Acedo Struck Love Bojanowski & Acedo PLC 3100 W Ray Rd., Ste. 300 Chandler, AZ 85226 480−420−1600 Email: NAcedo@strucklove.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy James Bojanowski Struck Love Bojanowski & Acedo PLC 3100 W Ray Rd., Ste. 300 Chandler, AZ 85226 480−420−1600 Fax: 480−420−1696 Email: tbojanowski@strucklove.com ATTORNEY TO BE NOTICED

Defendant
Cara M Christ in her official capacity as Director of the Arizona Department of Health Services TERMINATED: 08/01/2016

represented by Daniel Patrick Struck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen L Wieneke (See above for address) TERMINATED: 08/25/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicholas Daniel Acedo (See above for address)

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 12 of 44

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tara Brooke Zoellner Struck Wieneke & Love PLC 3100 W Ray Rd., Ste. 300 Chandler, AZ 85226 480−420−1600 Email: tzoellner@wienekelawgroup.com TERMINATED: 08/03/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy James Bojanowski (See above for address) ATTORNEY TO BE NOTICED

Defendant
Thomas J Betlach in his official capacity as Director of the Arizona Health Care Cost Containment System TERMINATED: 08/13/2019

represented by Daniel Patrick Struck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen L Wieneke (See above for address) TERMINATED: 08/25/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Logan T Johnston Johnston Law Offices PLC 14040 N Cave Creek Rd., Ste. 309 Phoenix, AZ 85022 602−452−0615 Fax: 602−716−5997 Email: LTJohnston@JohnstonLawOffices.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicholas Daniel Acedo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tara Brooke Zoellner (See above for address) TERMINATED: 08/03/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy James Bojanowski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine Dodd Plumb Law Offices of Catherine Dodd Plumb PLC 17225 N 16th Pl. Phoenix, AZ 85022 602−510−5184 Email: plumblawoffice@gmail.com ATTORNEY TO BE NOTICED

Dana M Keene

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 13 of 44

Struck Love Bojanowski & Acedo PLC 3100 W Ray Rd., Ste. 300 Chandler, AZ 85226 480−420−1620 Fax: 4804−420−1695 Email: DKeene@strucklove.com ATTORNEY TO BE NOTICED

David Daniel Weinzweig (See above for address) TERMINATED: 02/06/2018

Defendant
Jami Snyder in her official capacity as Director of the Arizona Health Care Costs Containment System

represented by Daniel Patrick Struck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Logan T Johnston (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicholas Daniel Acedo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy James Bojanowski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dana M Keene (See above for address) ATTORNEY TO BE NOTICED

Defendant
Michael Faust in official capacity as Director of the Arizona Department of Child Safety

represented by Cynthia Christine Albracht−Crogan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel P Quigley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen J Hartman−Tellez Ellman Law Group LLC 3030 N Central Ave., Ste. 1110 Phoenix, AZ 85012 480−630−6480 Email: kjh@elgarizona.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren Marie LaPrade (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Lawrence Ellman (See above for address)

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 14 of 44
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stacey Faith Gottlieb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Neil Stuart Cohen Dowd Quigley PC Camelback Esplanade I 2425 E Camelback Rd., Ste. 1100 Phoenix, AZ 85016 602−252−8400 Fax: 602−252−5339 Email: NStuart@cdqlaw.com ATTORNEY TO BE NOTICED

V. Intervenor Defendant Thomas Betlach Director of Arizona Health Care Cost Containment System (AHCCCS)
Movant Mercy Maricopa Integrated Care/Desert Vista Hospital Attorneys for Mercy Maricopa Integrated Care
Movant H.B. named as Plaintiff H.B. TERMINATED: 09/24/2018

represented by Logan T Johnston (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy James Bojanowski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Catherine Dodd Plumb (See above for address) ATTORNEY TO BE NOTICED
David Daniel Weinzweig (See above for address) TERMINATED: 02/06/2018
represented by Camilla June Porter Slattery Petersen PC − Phoenix, AZ 340 E Palm Lane, Ste. 250 Phoenix, AZ 85004 602−507−6110 Email: cporter@slatterypetersen.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jill M Covington Slattery Petersen PLLC 3390 N Campbell, Ste. 130 Tucson, AZ 85719 602−507−6110 Email: jcovington@slatterypetersen.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by H.B. Juvenile Justice Center Unit 8

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 15 of 44
2500 Fairmont Drive San Leandro, CA 94578 PRO SE

Date Filed 02/03/2015 02/03/2015 02/03/2015
02/03/2015
02/04/2015 02/04/2015 02/04/2015 02/04/2015 02/04/2015
02/10/2015 02/24/2015 02/24/2015 02/24/2015 02/25/2015

# Docket Text
1 COMPLAINT. Filing fee received: $400.00, receipt number 0970−11314597 filed by Susan Brandt, Margaret Tinsley, Jennifer Kupiszewski. (submitted by Roopali Desai) (Attachments: # 1 Civil Cover Sheet)(REK) (Entered: 02/03/2015)
2 SUMMONS Submitted by Susan Brandt, Jennifer Kupiszewski, Margaret Tinsley. (submitted by Roopali Desai) (Attachments: # 1 Summons)(REK) (Entered: 02/03/2015)
3 Filing fee paid, receipt number 0970−11314597. This case has been assigned to the Honorable Roslyn O. Silver. All future pleadings or documents should bear the correct case number: CV−15−00185−PHX−ROS. Notice of Availability of Magistrate Judge to Exercise Jurisdiction form attached. (REK) (Entered: 02/03/2015)
4 Summons Issued as to Charles Flanagan, William Humble. (Attachments: # 1 Summons)(REK). *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document. (Entered: 02/03/2015)
5 MOTION for Admission Pro Hac Vice as to attorney Julia Lucia Davis on behalf of Susan Brandt, Jennifer Kupiszewski, and Margaret Tinsley. (BAS) (Entered: 02/04/2015)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX154949 as to Julia L Davis. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 02/04/2015)
6 MOTION for Admission Pro Hac Vice as to attorney William A Kapell on behalf of Susan Brandt, Jennifer Kupiszewski, and Margaret Tinsley. (BAS) (Entered: 02/04/2015)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX154950 as to William A Kapell. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 02/04/2015)
7 ORDER pursuant to General Order 09−08 granting 5 Motion for Admission Pro Hac Vice; granting 6 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e−mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 02/04/2015)
8 SERVICE EXECUTED filed by Susan Brandt, Jennifer Kupiszewski, Margaret Tinsley: Proof of Service re: Summons and Complaint upon Charles Flanagan and William Humble on 02/04/2015. (Desai, Roopali) (Entered: 02/10/2015)
9 NOTICE of Appearance by Robert Lawrence Ellman on behalf of Charles Flanagan. (Ellman, Robert) (Entered: 02/24/2015)
10 STIPULATION FOR EXTENSION OF TIME TO ANSWER COMPLAINT FIRST REQUEST. (Attachments: # 1 Text of Proposed Order)(Ellman, Robert) (Entered: 02/24/2015)
11 NOTICE of Appearance by Daniel Patrick Struck on behalf of William Humble. (Struck, Daniel) (Entered: 02/24/2015)
12 ORDER approving the 10 Stipulation For Extension of Time To Answer Complaint: William Humble answer due 3/27/2015; Gregory McKay answer due 3/27/2015. IT IS FURTHER ORDERED the caption of this action is amended to substitute Gregory McKay as a defendant in place of Charles Flanagan. Signed by Senior Judge Roslyn O Silver on 2/24/15. (LAD) (Entered: 02/25/2015)

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 16 of 44

02/27/2015 03/02/2015 03/03/2015 03/13/2015
03/16/2015
03/18/2015 03/19/2015 04/16/2015 04/20/2015 04/20/2015 05/07/2015 05/07/2015
05/07/2015 05/07/2015
05/08/2015

13 NOTICE of Appearance by David Daniel Weinzweig on behalf of Gregory McKay. (Weinzweig, David) (Entered: 02/27/2015)
14 MOTION to Withdraw as Attorney by Susan Brandt, Jennifer Kupiszewski, Margaret Tinsley. (Attachments: # 1 Text of Proposed Order)(Beauchamp, Keith) (Entered: 03/02/2015)
15 ORDER granting 14 Motion (Application) for Withdrawal of Counsel. Attorney Shelley Tolman; Keith Beauchamp and Roopali H Desai terminated. Signed by Senior Judge Roslyn O Silver on 3/3/15.(LAD) (Entered: 03/03/2015)
16 Joint MOTION for Protective Order and Stipulation to Extend Time to Answer or Otherwise Plead (Second Request) and Request to Amend Caption by William Humble. (Attachments: # 1 Text of Proposed Order Protective Order and Order Granting Extension of Time to Answer or Otherwise Plead (Second Request) and Order Granting Request to Amend Caption)(Struck, Daniel) (Entered: 03/13/2015)
17 ORDER denying in part the 16 Motion for Protective Order. No protective order will issue. But, as stipulated by the parties, Defendants shall have an additional thirty days in which to answer the complaint after the identities of all minor Plaintiffs are made known to all of the Defendants. IT IS FURTHER ORDERED the caption of this action is hereby amended to substitute Cory Nelson as a defendant in place of defendant William Humble. (See document for full details). Signed by Senior Judge Roslyn O Silver on 3/16/15.(LAD) (Entered: 03/16/2015)
18 Joint MOTION for Protective Order Joint Motion to Enter into a Protective Order by Cory D Nelson. (Attachments: # 1 Exhibit A − Protective Order)(Struck, Daniel) (Entered: 03/18/2015)
19 PROTECTIVE ORDER − ORDERED granting 18 Joint Motion for Protective Order. (See attached Order). Signed by Senior Judge Roslyn O Silver on 3/19/2015.(TLB) (Entered: 03/19/2015)
20 NOTICE of Appearance by Joseph E Mais on behalf of Susan Brandt, Jennifer Kupiszewski, Margaret Tinsley. (Mais, Joseph) (Entered: 04/16/2015)
21 AMENDED COMPLAINT by Consent against Gregory McKay, Cory D Nelson filed by Susan Brandt, Margaret Tinsley, Jennifer Kupiszewski.(Kapell, William) (Entered: 04/20/2015)
22 NOTICE of Filing Amended Pleading pursuant to LRCiv 15.1(b) by Susan Brandt, Jennifer Kupiszewski, Margaret Tinsley . (Attachments: # 1 Exhibit Amended Complaint with Changes Marked)(Kapell, William) (Entered: 04/20/2015)
23 * MOTION to Intervene of AHCCCS Director Thomas Betlach and MOTION FOR Leave to File Answer by Thomas Betlach. (Attachments: # 1 Text of Proposed Order)(Johnston, Logan). *Added MOTION for Leave to File on 5/8/2015 (REK). (Entered: 05/07/2015)
24 * (Filed at Doc. 35 ) LODGED Proposed Proposed Answer of Thomas Betlach to First Amended Complaint re: 23 MOTION to Intervene of AHCCCS Director Thomas Betlach. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Thomas Betlach. (Johnston, Logan) Modified on 6/3/2015 (LAD). (Entered: 05/07/2015)
25 *MOTION Leave to Exceed Page Limit by Gregory McKay, Cory D Nelson. (Attachments: # 1 Text of Proposed Order)(Weinzweig, David) *Modified to correct event − attorney noticed on 5/8/2015 (REK). (Entered: 05/07/2015)
26 *FILED AT DOC 39 * LODGED PROPOSED DOCUMENT re: 25 Motion for Leave to File Excess Pages: MOTION to Dismiss for Lack of Jurisdiction Motion to Abstain and Dismiss by Gregory McKay, Cory D Nelson. (Weinzweig, David)* Modified to correct event − attorney noticed on 5/8/2015 (REK). Modified on 6/8/2015 (ATD). (Entered: 05/07/2015)
27 NOTICE of Appearance by Timothy James Bojanowski on behalf of Cory D Nelson. (Bojanowski, Timothy) (Entered: 05/08/2015)

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 17 of 44

05/11/2015
05/11/2015 05/19/2015 05/22/2015 05/26/2015 05/26/2015 05/27/2015 05/27/2015 05/27/2015
06/03/2015
06/03/2015 06/08/2015 06/08/2015 06/08/2015 06/09/2015

28 ORDER granting 25 Defendants' Joint Motion for Leave to File Excess Page Limit. FURTHER ORDERED Defendants Joint Motion to Abstain and DismissPursuant to Fed. R. Civ. P. 12(b)(1), of no more than 30 pages in length, (Doc. 26 ), will be allowed. Signed by Senior Judge Roslyn O Silver on 5/11/2015.(TLB) (Entered: 05/11/2015)
39 JOINT MOTION to Abstain and Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) by Gregory McKay, Cory D Nelson. (ATD) (Entered: 06/08/2015)
29 RESPONSE in Opposition re: 23 MOTION to Intervene of AHCCCS Director Thomas Betlach MOTION for Leave to File filed by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley. (Mais, Joseph) (Entered: 05/19/2015)
30 NOTICE re: Non−Opposition by Cory D Nelson re: 23 MOTION to Intervene of AHCCCS Director Thomas Betlach MOTION for Leave to File . (Acedo, Nicholas) (Entered: 05/22/2015)
31 MOTION for Admission Pro Hac Vice as to attorney Rachel Brodin Nili on behalf of Jennifer Kupiszewski, and Margaret Tinsley. (BAS) (Entered: 05/27/2015)
32 MOTION for Admission Pro Hac Vice as to attorney Adriana Teresa Luciano on behalf of Jennifer Kupiszewski, and Margaret Tinsley. (BAS) (Entered: 05/27/2015)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX158930 as to Rachel Brodin Nili. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 05/27/2015)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX158925 as to Adriana Teresa Luciano. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 05/27/2015)
33 ORDER pursuant to General Order 09−08 granting 31 Motion for Admission Pro Hac Vice; granting 32 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e−mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 05/27/2015)
34 ORDER − IT IS ORDERED Thomas Betlach's motion to intervene, (Doc. 23 ), is GRANTED. IT IS FURTHER ORDERED the Clerk of Court shall add Betlach as a Defendant as to Plaintiffs' Second Cause of Action and file his previously lodged answer to the first amended complaint, (Doc. 24 ). Signed by Senior Judge Roslyn O Silver on 6/3/15. (LAD) (Entered: 06/03/2015)
35 ANSWER to 21 First Amended Complaint by Thomas Betlach. (LAD) (Entered: 06/03/2015)
36 STIPULATION of Consent to Substitution of Party, Amendment of Caption, Filing of Second Amended Complaint, and Motion Briefing Schedule by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley. (Attachments: # 1 Text of Proposed Order)(Kapell, William) (Entered: 06/08/2015)
37 AMENDED COMPLAINT Second Amended Complaint against All Defendants filed by Margaret Tinsley, Susan Brandt(on behalf of minors:), Jennifer Kupiszewski.(Kapell, William) (Entered: 06/08/2015)
38 NOTICE of Filing Amended Pleading pursuant to LRCiv 15.1(b) by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley . (Attachments: # 1 Exhibit Second Amended Complaint with Changes Marked)(Kapell, William) (Entered: 06/08/2015)
40 ORDER − Pursuant to Stipulation 36 , IT IS ORDERED Cara Christ is hereby substituted as a Defendant in place of Defendant Cory Nelson. The caption of this action is hereby amended to reflect Defendant Christ's substitution for Defendant Nelson. IT IS FURTHER ORDERED following Plaintiffs' filing of a Second Amended Complaint ("SAC") with Defendants' consent pursuant to Fed. R. Civ. P. 15(a) (2) on June 8, 2015, Defendants McKay, Christ and Betlach shall file a single

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 18 of 44

06/09/2015 06/11/2015
06/11/2015 06/12/2015 06/12/2015 06/29/2015 06/29/2015
06/30/2015 06/30/2015 06/30/2015 09/29/2015 10/13/2015 10/13/2015 10/13/2015

joint motion to abstain and dismiss pursuant to Fed. R. Civ. P. 12(b)(1) as against the SAC on June 9, 2015. Plaintiffs shall file their opposition to that motion by June 11, 2015. Defendants' time to file any reply memorandum will be fifteen (15) days after service of Plaintiffs' opposition, as provided by Local Rules 7.2 and 12.1. IT IS FURTHER ORDERED in light of the Second Amended Complaint, Defendant McKay and former Defendant Nelson's motion to abstain and dismiss the First Amended Complaint, (Docs. 39 ), is DENIED AS MOOT. Signed by Senior Judge Roslyn O Silver on 6/8/15. (LAD) (Entered: 06/09/2015)
41 MOTION to Dismiss for Lack of Jurisdiction Motion to Abstain and Dismiss Plaintiffs' Second Amended Complaint by Thomas Betlach, Thomas J Betlach, Cara M Christ, Gregory McKay. (Weinzweig, David) (Entered: 06/09/2015)
42 **FILED AT DOC 45 ** LODGED Proposed PLAINTIFFS OPPOSITION TO DEFENDANTS JOINT MOTION TO ABSTAIN AND DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(1) [LODGED]. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley. (Kapell, William) Modified on 6/12/2015 (ATD). (Entered: 06/11/2015)
43 *MOTION for Leave to File Opposition that Exceeds Page Limit by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley. (Attachments: # 1 Text of Proposed Order)(Kapell, William) *Modified to correct motion type on 6/12/2015 (REK). (Entered: 06/11/2015)
44 ORDER granting 43 Plaintiffs' Motion for Leave to Exceed Page Limit. The proposed brief (Plaintiff's Opposition−Doc. 42 ) shall be filed by the Clerk. Signed by Senior Judge Roslyn O Silver on 6/12/2015.(TLB) (Entered: 06/12/2015)
45 RESPONSE (OPPOSITION) to 41 MOTION to Abstain and Dismiss Plaintiffs' Second Amended Complaint filed by Susan Brandt (on behalf of minors), Jennifer Kupiszewski, Margaret Tinsley. (ATD) (Entered: 06/12/2015)
46 Joint MOTION for Leave to File Excess Pages for Reply in Support of Motion to Abstain and Dismiss by Thomas J Betlach, Cara M Christ, Gregory McKay. (Attachments: # 1 Text of Proposed Order)(Weinzweig, David) (Entered: 06/29/2015)
47 *(Filed at (Doc. 49 )−−LODGED Proposed Joint Reply in Support of Motion to Abstain and Dismiss re: 46 Joint MOTION for Leave to File Excess Pages for Reply in Support of Motion to Abstain and Dismiss. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Thomas J Betlach, Cara M Christ, Gregory McKay. (Attachments: # 1 Exhibit)(Weinzweig, David) Modified on 6/30/2015 (LSP). (Entered: 06/29/2015)
48 ORDER granting 46 Defendants' Joint Motion for Leave to Exceed Page LImit. The Clerk shall file the over−length brief lodged at Doc. 47 . Signed by Senior Judge Roslyn O Silver on 6/30/15.(TLB) (Entered: 06/30/2015)
49 REPLY to Response to Motion re: 41 MOTION to Dismiss for Lack of Jurisdiction Motion to Abstain and Dismiss Plaintiffs' Second Amended Complaint filed by Thomas J Betlach, Cara M Christ, Gregory McKay. (LSP) (Entered: 06/30/2015)
50 Additional Attachments to Main Document, Exhibit A re: 49 Reply to Response to Motion by Defendants Thomas J Betlach, Cara M Christ, Gregory McKay. (ATD) (Entered: 07/01/2015)
51 ORDER denying 41 Motion to Abstain and Dismiss. See attached Order. Signed by Senior Judge Roslyn O Silver on 9/29/2015.(TLB) (Entered: 09/29/2015)
52 ANSWER to 37 Amended Complaint by Gregory McKay.(Ellman, Robert) (Entered: 10/13/2015)
53 Answer of Thomas Betlach to Second Amended Complaint ANSWER to 37 Amended Complaint by Thomas J Betlach.(Johnston, Logan) (Entered: 10/13/2015)
54 ANSWER to 37 Amended Complaint by Cara M Christ.(Struck, Daniel) (Entered: 10/13/2015)

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 19 of 44

10/21/2015
10/30/2015 12/01/2015
12/10/2015 12/10/2015 12/10/2015 12/10/2015 12/11/2015

55 ORDER − Rule 16 Scheduling Conference set for 12/11/2015 at 11:00 AM in Courtroom 604, 401 West Washington Street, Phoenix, AZ 85003 before Senior Judge Roslyn O Silver. Counsel/parties shall prepare a Proposed Case Management Plan and a Proposed Scheduling Order and shall file them with the Court not less than ten (10) days before the Scheduling Conference. Signed by Senior Judge Roslyn O Silver on 10/21/2015. (TLB) (Entered: 10/21/2015)
56 NOTICE of Appearance by Gary N Lento on behalf of Gregory McKay. (Lento, Gary) (Entered: 10/30/2015)
57 *REPORT re: Rule 16 Scheduling Order by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley. (Attachments: # 1 Attachment 1 − Plaintiffs' Proposed Rule 16 Scheduling Order, # 2 Attachment 2 − Defendants' Proposed Rule 16 Scheduling Order)(Swindle, Shane) *Modified to correct event on 12/2/2015 (REK). (Entered: 12/01/2015)
58 *NOTICE of Service of Discovery re: Plaintiffs Initial Disclosures Pursuant to Rule 26(a)(1) by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley . (Kapell, William) *Modified to correct event on 12/11/2015 (REK). (Entered: 12/10/2015)
59 *NOTICE of Service of Discovery re: Initial Disclosures by Gregory McKay . (Lento, Gary) *Modified to correct event on 12/11/2015 (REK). (Entered: 12/10/2015)
60 NOTICE of Service of Discovery filed by Cara M Christ. (Struck, Daniel) (Entered: 12/10/2015)
61 NOTICE of Service of Discovery filed by Thomas J Betlach. (Johnston, Logan) (Entered: 12/10/2015)
62 MINUTE ENTRY for proceedings held before Senior Judge Roslyn O Silver: Scheduling Conference held on 12/11/2015. Case status and deadlines are discussed. The parties shall confer regarding discovery during the week of 1/4/2016 and file a notice of compliance with the court not later than 1/8/2016. The parties shall submit a proposed scheduling order not later than 12/18/2015.

12/11/2015 12/14/2015 12/14/2015 12/14/2015
12/15/2015 12/21/2015

APPEARANCES: William Kapell, Joseph Mais, Anne Ronan, Adriana Luciano and Julia Davis for Plaintiffs. Daniel Struck, Nicholas Acedo, Logan Johnston, Robert Ellman, Gary Lento and Melanie McBride for Defendants. (Court Reporter Elva Cruz−Lauer.) Hearing held 11:34 AM to 12:35 PM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (LMR) (Entered: 12/11/2015)
63 NOTICE of Appearance by Melanie Grace McBride on behalf of Gregory McKay. (McBride, Melanie) (Entered: 12/11/2015)
64 TRANSCRIPT REQUEST Re: Scheduling Conference Proceedings by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley for proceedings held on 12/11/2015, Judge Roslyn O Silver hearing judge(s). (Kapell, William) (Entered: 12/14/2015)
65 TRANSCRIPT REQUEST by Gregory McKay for proceedings held on December 11, 2015, Judge Roslyn O Silver hearing judge(s). (Lento, Gary) (Entered: 12/14/2015)
67 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of SCHEDULING CONFERENCE proceedings held on 12/11/2015, before Judge Roslyn O. Silver. (Court Reporter: Elva Cruz−Lauer). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/4/2016. Redacted Transcript Deadline set for 1/14/2016. Release of Transcript Restriction set for 3/14/2016. (RAP) (Entered: 12/17/2015)
66 NOTICE of Appearance by Daniel Patrick Struck on behalf of Cara M Christ. (Struck, Daniel) (Entered: 12/15/2015)
68 SCHEDULING ORDER: Discovery due by 12/30/2016. Dispositive motions due by 6/16/2017. Joint Statement due by 5/11/2016. Proposed Pretrial Order due by

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 20 of 44

12/22/2015 01/05/2016 01/08/2016 01/19/2016 01/19/2016
01/22/2016 02/05/2016 02/08/2016 02/11/2016
02/17/2016 02/18/2016
02/19/2016 02/19/2016 02/19/2016 02/19/2016

8/31/2017 [see attached Order for details]. Signed by Senior Judge Roslyn O Silver on 12/21/15. (MAW) (Entered: 12/21/2015)
69 NOTICE of Appearance by Catherine Dodd Plumb on behalf of Thomas J Betlach. (Plumb, Catherine) (Entered: 12/22/2015)
70 NOTICE of Attorney Substitution by Melanie Grace McBride. (McBride, Melanie) (Entered: 01/05/2016)
71 *NOTICE re: Joint Notice of Compliance of 68 Order by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley . (Kapell, William) *Modified to add link on 1/11/2016 (REK). (Entered: 01/08/2016)
72 STIPULATION of Dismissal of Plaintiffs A.T. and J.C. Without Prejudice by Cara M Christ. (Attachments: # 1 Text of Proposed Order)(Zoellner, Tara) (Entered: 01/19/2016)
73 ORDER: Pursuant to the parties' Stipulation to Dismiss Plaintiffs A.T. and J.C. Without Prejudice (Doc. 72 ), and good cause appearing, IT IS ORDERED the claims of Plaintiffs A.T. and J.C. are dismissed without prejudice. Each party shall bear its own taxable costs with respect to Plaintiffs A.T. and J.C.'s individual claims. The claims of all other Plaintiffs remain active at this time. Signed by Senior Judge Roslyn O Silver on 1/19/2016. (REK) (Entered: 01/19/2016)
74 *NOTICE re: Joint Notice of Compliance re: 68 Scheduling Order by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley . (Kapell, William) *Modified to add link on 1/25/2016 (REK). (Entered: 01/22/2016)
75 NOTICE of Service of Discovery filed by Cara M Christ. (Zoellner, Tara) (Entered: 02/05/2016)
76 * STATEMENT of Joint Statement of Discovery Dispute by Plaintiffs Susan Brandt, Jennifer Kupiszewski, Margaret Tinsley, Gregory McKay, Cara M Christ, Thomas J Betlach. (Kapell, William) * Modified to add additional filers on 2/9/2016 (LAD). (Entered: 02/08/2016)
77 ORDER: IT IS ORDERED no later than February 19, 2016, Plaintiffs shall file either a motion or stipulation regarding their Next Friend status. IT IS FURTHER ORDERED no later than February 19, 2016, the parties shall file a joint statement outlining their positions regarding redactions in non−party records. The parties shall also file a proposed protective order regarding the handling of non−party records [see attached Order for details]. Signed by Senior Judge Roslyn O Silver on 2/11/2016. (KAL) (Entered: 02/11/2016)
78 MOTION for Leave to File Excess Pages by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley. (Attachments: # 1 Text of Proposed Order)(Kapell, William) (Entered: 02/17/2016)
79 ORDER: The Court having considered Plaintiff's Motion for Leave to File a Six−Page Submission, and good cause appearing, IT IS ORDERED the motion 78 is GRANTED, and each party may submit a statement of up to six pages for the joint statement regarding redactions. Signed by Senior Judge Roslyn O Silver on 2/17/2016. (KAL) (Entered: 02/18/2016)
80 STIPULATION and [Proposed] Order for Protection of Privileged/Confidential Material by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley. (Kapell, William) (Entered: 02/19/2016)
81 STATEMENT of Redaction Issue by Plaintiffs Susan Brandt, Susan Brandt, Jennifer Kupiszewski, Margaret Tinsley. (Kapell, William) (Entered: 02/19/2016)
82 DECLARATION of William Kapell in Support of Plaintiffs' Position in Joint Statement Regarding Redaction Issue re: 81 Statement by Plaintiffs Susan Brandt, Susan Brandt, Jennifer Kupiszewski, Margaret Tinsley. (Kapell, William) (Entered: 02/19/2016)
83 MOTION to Appoint Next Friends Under Federal Rule of Civil Procedure 17(c) by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley. (Attachments: # 1 Text of Proposed Order)(Kapell, William) (Entered: 02/19/2016)

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 21 of 44

02/19/2016
02/19/2016 02/19/2016 02/19/2016 02/24/2016 02/24/2016 02/24/2016
02/29/2016 03/01/2016 03/03/2016 03/04/2016 03/07/2016 03/07/2016
03/10/2016

84 DECLARATION of William Kapell in Support of Plaintiffs' Motion for Appointment of Next Friends Under Federal Rule of Civil Procedure 17(c) re: 83 MOTION to Appoint Next Friends Under Federal Rule of Civil Procedure 17(c) by Plaintiffs Susan Brandt, Susan Brandt, Jennifer Kupiszewski, Margaret Tinsley. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Kapell, William) (Entered: 02/19/2016)
85 DECLARATION of Susan Brandt in Support of Motion for Appointment as Next Friend Under Federal Rule of Civil Procedure 17(c) re: 83 MOTION to Appoint Next Friends Under Federal Rule of Civil Procedure 17(c) by Plaintiffs Susan Brandt, Susan Brandt, Jennifer Kupiszewski, Margaret Tinsley. (Kapell, William) (Entered: 02/19/2016)
86 DECLARATION of Jennifer Kupiszewski in Support of Motion for Appointment as Next Friend Under Federal Rule of Civil Procedure 17(c) re: 83 MOTION to Appoint Next Friends Under Federal Rule of Civil Procedure 17(c) by Plaintiffs Susan Brandt, Susan Brandt, Jennifer Kupiszewski, Margaret Tinsley. (Kapell, William) (Entered: 02/19/2016)
87 DECLARATION of Margaret R. Tinsley in Support of Motion for Appointment as Next Friend Under Federal Rule of Civil Procedure 17(c) re: 83 MOTION to Appoint Next Friends Under Federal Rule of Civil Procedure 17(c) by Plaintiffs Susan Brandt, Susan Brandt, Jennifer Kupiszewski, Margaret Tinsley. (Kapell, William) (Entered: 02/19/2016)
88 *Joint MOTION for Leave to File Defendants Joint Motion for Leave to Respond to Plaintiffs Six−Page Submission in the Joint Statement Regarding Redaction Issue re: 81 Statement by Gregory McKay. (Attachments: # 1 Text of Proposed Order Proposed Order)(McBride, Melanie) *Modified to add link on 2/25/2016 (REK). (Entered: 02/24/2016)
89 RESPONSE in Opposition re: 88 Joint MOTION for Leave to File Defendants Joint Motion for Leave to Respond to Plaintiffs Six−Page Submission in the Joint Statement Regarding Redaction Issue filed by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley. (Kapell, William) (Entered: 02/24/2016)
90 DECLARATION of William Kapell in Support of Plaintiffs' Opposition to Defendants' Joint Motion for Leave to Respond to Plaintiffs' Six−Page Submission in the Joint Statement Regarding Redaction Issue re: 89 Response in Opposition to Motion by Plaintiffs Susan Brandt, Susan Brandt, Jennifer Kupiszewski, Margaret Tinsley. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Kapell, William) (Entered: 02/24/2016)
91 NOTICE of Service of Discovery filed by Gregory McKay. (McBride, Melanie) (Entered: 02/29/2016)
92 NOTICE of Service of Discovery filed by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley. (Kapell, William) (Entered: 03/01/2016)
93 NOTICE of Service of Discovery filed by Cara M Christ. (Zoellner, Tara) (Entered: 03/03/2016)
94 NOTICE of Service of Discovery filed by Thomas J Betlach. (Johnston, Logan) (Entered: 03/04/2016)
95 RESPONSE to Motion re: 83 MOTION to Appoint Next Friends Under Federal Rule of Civil Procedure 17(c) Defendants' Joint Opposition filed by Gregory McKay. (Lento, Gary) (Entered: 03/07/2016)
96 ORDER: On the Court's own motion, IT IS ORDERED setting oral argument for March 11, 2016 at 2:30 p.m. regarding the Parties' Joint Submission of Proposed Protective Order (Doc. 80 ) and Defendants' Joint Motion for Leave to Respond to Plaintiffs' Six−Page Submission in the Joint Statement Regarding Redaction Issue (Doc. 88 ). Signed by Senior Judge Roslyn O Silver on 3/7/2016. (KAL) (Entered: 03/07/2016)
97 ORDER: IT IS ORDERED at the March 11, 2016, hearing the parties shall be prepared to discuss the attached protective order as well as the next friend issue. [See

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 22 of 44

03/11/2016

attached Order for details.] Signed by Senior Judge Roslyn O Silver on 3/10/2016. (KAL) (Entered: 03/10/2016)
102 MINUTE ENTRY for proceedings held before Senior Judge Roslyn O Silver: Motion Hearing held on 3/11/2016 regarding the Parties' Joint Submission of Proposed Protective Order 80 and Defendants' Joint Motion for Leave to Respond to Plaintiffs' Six−Page Submission in the Joint Statement Regarding Redaction Issue 88 . Discussion held regarding the protective order and the next friend issue. Written Order regarding protective order to follow. Next friend issue will be resolved once briefing is complete.

03/14/2016 03/14/2016
03/14/2016 03/14/2016 03/15/2016 03/15/2016
03/15/2016
03/16/2016 03/17/2016

APPEARANCES: Julia Davis, Anne Ronan and Shane Swindle for Plaintiffs. Daniel Struck and Tara Zoellner for Defendant Cara Christ. Logan Johnston for Defendant Thomas Betlach. Gary Lento and Melanie McBride for Defendant Gregory McKay. (Court Reporter: Elva Cruz−Lauer.) Hearing held 2:55 PM to 3:33 PM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (KAL) (Entered: 03/15/2016)
98 TRANSCRIPT REQUEST by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley for proceedings held on 3/11/2016, Judge Roslyn O Silver hearing judge(s). (Kapell, William) (Entered: 03/14/2016)
99 NOTICE TO FILER OF DEFICIENCY re: AO435 98 Transcript Request filed by Jennifer Kupiszewski, Margaret Tinsley, Susan Brandt. Item 19 − Signature is not in proper electronic format. FOLLOW−UP ACTION REQUIRED: Please refile with Item 19 in proper electronic signature format − s/typewritten name of e−filer. Deficiency must be corrected within one business day of this notice. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (RAP) (Entered: 03/14/2016)
100 TRANSCRIPT REQUEST (corrected) by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley for proceedings held on 3/11/2016, Judge Roslyn O Silver hearing judge(s). (Kapell, William) (Entered: 03/14/2016)
101 TRANSCRIPT REQUEST of Oral Argument Pursuant to Order [Doc. 96] by Gregory McKay for proceedings held on March 11, 2016, Judge Roslyn O Silver hearing judge(s). (Lento, Gary) (Entered: 03/14/2016)
103 NOTICE of Service of Discovery filed by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley. (Kapell, William) (Entered: 03/15/2016)
104 ORDER for Protection of Privileged/Confidential Material − IT IS ORDERED Defendants shall produce the redacted information regarding named plaintiffs no later than April 1, 2016. Defendants should not expect any extension of this deadline. IT IS FURTHER ORDERED the Motion for Leave to Respond to Plaintiffs' Submission (Doc. 88 ) is DENIED AS MOOT. IT IS FURTHER ORDERED the Parties' Joint Submission of Proposed Protective Order (Doc. 80 ) is APPROVED IN PART. (See document for full details). Signed by Senior Judge Roslyn O Silver on 3/14/16. (LAD) (Entered: 03/15/2016)
106 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of ORAL ARGUMENT proceedings held on 03/11/2016, before Judge Roslyn O. Silver. (Court Reporter: Elva Cruz−Lauer). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/5/2016. Redacted Transcript Deadline set for 4/15/2016. Release of Transcript Restriction set for 6/13/2016. (RAP) (Entered: 03/17/2016)
105 MOTION for Leave to File Excess Pages by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley. (Attachments: # 1 Text of Proposed Order)(Kapell, William) (Entered: 03/16/2016)
107 IT IS ORDERED granting 105 Plaintiffs' Motion for Leave to File Excess Pages. IT IS FURTHER ORDERED in the future, the parties should indicate the position of the opposing side. Ordered by Senior Judge Roslyn O. Silver.(ROS, kb)(This is a TEXT

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 23 of 44

03/17/2016 03/17/2016 03/17/2016 03/18/2016 03/18/2016
03/18/2016 03/18/2016 03/18/2016 03/23/2016 03/23/2016
03/23/2016
03/24/2016 03/25/2016 03/25/2016

ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 03/17/2016)
108 * REPLY to Response to 83 Motion to Appoint Next Friends by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley . (Kapell, William) * Modified to add document linkage on 3/18/2016 (LAD). (Entered: 03/17/2016)
109 DECLARATION of Julia L. Davis in Further Support of Plaintiffs' Motion for Appointment of Next Friends Under Federal Rule of Civil Procedure 17(c) re: 108 Brief − Reply by Plaintiffs Susan Brandt, Susan Brandt, Jennifer Kupiszewski, Margaret Tinsley. (Kapell, William) (Entered: 03/17/2016)
110 DECLARATION of Susan Brandt in Further Support of Plaintiffs' Motion for Appointment as Next Friend Under Federal Rule of Civil Procedure 17(c) re: 108 Brief − Reply by Plaintiffs Susan Brandt, Susan Brandt, Jennifer Kupiszewski, Margaret Tinsley. (Kapell, William) (Entered: 03/17/2016)
111 NOTICE re: OF MEET & CONFER REGARDING APPROPRIATE NEXT FRIENDS IN COMPLIANCE WITH THE COURTS ORDER by Gregory McKay . (McBride, Melanie) (Entered: 03/18/2016)
112 Joint MOTION for Leave to File UNOPPOSED JOINT MOTION FOR LEAVE TO FILE A SUR−REPLY TO PLAINTIFFS REPLY MEMORANDUM IN SUPPORT OF THEIR MOTION FOR APPOINTMENT OF NEXT FRIENDS UNDER FEDERAL RULE OF CIVIL PROCEDURE 17(c) by Gregory McKay. (Attachments: # 1 Text of Proposed Order Proposed Order)(McBride, Melanie) (Entered: 03/18/2016)
113 NOTICE of Attorney Withdrawal ROBERT L. ELLMAN filed by Melanie Grace McBride. (McBride, Melanie) (Entered: 03/18/2016)
114 *NOTICE of Waiver of Electronic Service by David Daniel Weinzweig. (McBride, Melanie) *Modified to correct event on 3/21/2016 (REK). (Entered: 03/18/2016)
115 ORDER granting 112 Motion for Leave to File Sur−Reply and no later than March 23, 2016, Defendants may file a sur−reply of no more than nine pages to Plaintiffs' reply in support of motion for appointment of next friends. Signed by Senior Judge Roslyn O Silver on 3/18/16.(MAW) (Entered: 03/18/2016)
116 RESPONSE re: 111 Notice (Other) Pls' Response to Defs' Joint Notice of Meet and Confer Regarding Next Friends by Plaintiffs Susan Brandt, Susan Brandt, Jennifer Kupiszewski, Margaret Tinsley. (Kapell, William) (Entered: 03/23/2016)
117 *REPLY − Defendant's Sur−Reply to Plaintiff's Reply Memorandum in Support of their Motion for Appointment of Next Friends under Federal Rule of Civil Procedure 17(c) re: 108 Reply to Response to 83 MOTION to Appoint Next Friends Under Federal Rule of Civil Procedure 17(c) filed by Gregory McKay. (McBride, Melanie) *Modified to correct event on 3/24/2016 (REK). (Entered: 03/23/2016)
118 *STRICKEN By Doc. 120 *SEALED LODGED Proposed Exhibit 1 and 2 to Defendant's Sur Reply. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Gregory McKay. (Attachments: # 1 Text of Proposed Order Proposed Order, # 2 Exhibit 1, # 3 Exhibit 2)(McBride, Melanie) *Modified on 3/25/2016 (MAP)*. (Entered: 03/23/2016)
119 RESPONSE re: 118 Sealed Lodged Proposed Document by Plaintiffs Susan Brandt, Susan Brandt, Jennifer Kupiszewski, Margaret Tinsley. (Kapell, William) (Entered: 03/24/2016)
120 ORDER That Defendant's Motion for Leave to File Documents Under Seal 118 is STRICKEN. Signed by Senior Judge Roslyn O Silver on 3/24/16. (MAP) (Entered: 03/25/2016)
121 MOTION to Seal Document submitted in support of Defendant's Sur−Reply in Opposition to Plaintiffs' Motion to Appoint Next Friends Under Federal Rule of Civil Procedure 17(c) by Gregory McKay. (Attachments: # 1 Text of Proposed Order Proposed Order)(McBride, Melanie) (Entered: 03/25/2016)

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 24 of 44

03/25/2016
03/25/2016
03/28/2016 03/29/2016 03/29/2016
03/29/2016 03/29/2016 03/31/2016 03/31/2016 04/04/2016 04/04/2016 04/07/2016 04/11/2016 04/13/2016 04/21/2016 04/21/2016 04/21/2016

122 *FILED at Doc. 127 *SEALED LODGED Proposed Proposed Exhibit 1 and 2 to Defendant's Sur Reply re: 121 MOTION to Seal Document submitted in support of Defendant's Sur−Reply in Opposition to Plaintiffs' Motion to Appoint Next Friends Under Federal Rule of Civil Procedure 17(c). Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Gregory McKay. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(McBride, Melanie) *Modified on 3/29/2016 (MAP)*. (Entered: 03/25/2016)
123 RESPONSE to Motion re: 121 MOTION to Seal Document submitted in support of Defendant's Sur−Reply in Opposition to Plaintiffs' Motion to Appoint Next Friends Under Federal Rule of Civil Procedure 17(c) filed by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley. (Kapell, William) (Entered: 03/25/2016)
124 STIPULATION of Dismissal of PLAINTIFF C.P. WITHOUT PREJUDICE by Gregory McKay. (Attachments: # 1 Text of Proposed Order Proposed Order)(McBride, Melanie) (Entered: 03/28/2016)
125 Joinder re: 117 Response in Opposition to Motion, Reply to Response to Motion for Appointment of Next Friends under FRCP 17(c) by Defendant Cara M Christ. filed by Cara M Christ. (Zoellner, Tara) (Entered: 03/29/2016)
126 ORDER granting 121 Motion to Seal. FURTHER ORDERED That the Stipulation of Dismissal 124 is APPROVED. Plaintiff C.P. is dismissed without prejudice. Each party shall bear their/its own taxable costs with respect to the individual claims of Plaintiff C.P. Signed by Senior Judge Roslyn O Silver on 3/29/16. (MAP) (Entered: 03/29/2016)
127 Sealed Exhibits to 117 Sur−Reply Memorandum in Support of their Motion for Appointment of Next Friends under Federal Rule of Civil Procedure 17(c) by Gregory McKay. (Attachments: # 1 Exhibit 2)(MAP) (Entered: 03/29/2016)
128 NOTICE of Service of Discovery filed by Cara M Christ. (Zoellner, Tara) (Entered: 03/29/2016)
129 NOTICE of Service of Discovery filed by Cara M Christ. (Zoellner, Tara) (Entered: 03/31/2016)
130 NOTICE of Service of Discovery filed by Thomas J Betlach. (Johnston, Logan) (Entered: 03/31/2016)
131 *NOTICE re: NOTICE OF COMPLIANCE WITH COURT ORDER 104 by Gregory McKay . (McBride, Melanie) *Modified to add link on 4/5/2016 (REK). (Entered: 04/04/2016)
132 NOTICE of Service of Discovery filed by Gregory McKay. (McBride, Melanie) (Entered: 04/04/2016)
133 NOTICE of Service of Discovery filed by Gregory McKay. (McBride, Melanie) (Entered: 04/07/2016)
134 *NOTICE re: OF COMPLIANCE WITH PROTECTIVE ORDER 104 by Gregory McKay . (Attachments: # 1 Exhibit A)(McBride, Melanie) *Modified to add document number on 4/12/2016 (KGM). (Entered: 04/11/2016)
135 NOTICE of Service of Discovery filed by Thomas J Betlach. (Johnston, Logan) (Entered: 04/13/2016)
136 MOTION for Admission Pro Hac Vice as to attorney Philip Barber on behalf of Susan Brandt(on behalf of minors:). (BAS) (Entered: 04/21/2016)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX170997 as to Philip Barber. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 04/21/2016)
137 ORDER pursuant to General Order 09−08 granting 136 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov.

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 25 of 44

04/28/2016 04/28/2016
04/28/2016
04/29/2016 04/29/2016 04/29/2016 05/02/2016 05/03/2016 05/03/2016 05/05/2016
05/05/2016 05/05/2016 05/06/2016 05/06/2016 05/10/2016 05/10/2016 05/11/2016

Counsel is advised that they are limited to two (2) additional e−mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 04/21/2016)
138 ***Amended by 140 ***STATEMENT of Joint Statement Regarding Redaction Issue by Plaintiffs Susan Brandt, Susan Brandt, Jennifer Kupiszewski, Margaret Tinsley. (Kapell, William) Modified on 4/29/2016 (REK). (Entered: 04/28/2016)
139 STATEMENT of DEFENDANT GREGORY McKAYS CORRECTION TO MIS−STATEMENT MADE BY PLAINTIFFS IN JOINT STATEMENT OF DISPUTE REGARDING REDACTION ISSUE [DOC. 138] FILED BY PLAINTIFFS re: 138 Statement by Defendant Gregory McKay. (McBride, Melanie) (Entered: 04/28/2016)
140 *Amended STATEMENT of [CORRECTED] JOINT STATEMENT REGARDING REDACTION ISSUE re: 138 Statement by Plaintiffs Susan Brandt, Susan Brandt, Jennifer Kupiszewski, Margaret Tinsley. (Kapell, William) *Modified to correct text and add link on 4/29/2016 (REK). (Entered: 04/28/2016)
141 NOTICE of Service of Discovery filed by Gregory McKay. (McBride, Melanie) (Entered: 04/29/2016)
142 ORDER: IT IS ORDERED no later than May 5, 2016, Defendants shall produce the unredacted files to Plaintiffs. See attached Order for complete details. Signed by Senior Judge Roslyn O Silver on 4/29/2016. (KAL) (Entered: 04/29/2016)
143 NOTICE of Service of Discovery filed by Cara M Christ. (Zoellner, Tara) (Entered: 04/29/2016)
144 ORDER no later than May 5, 2016, Defendants shall produce the unredacted files to Plaintiffs. Signed by Senior Judge Roslyn O Silver on 4/29/16. (LSP) (Entered: 05/02/2016)
145 NOTICE re: Filing Protective Order Agreements in Compliance with Protective Order (Doc. 104) by Cara M Christ . (Attachments: # 1 Exhibit A − Executed Protective Order Agreements)(Zoellner, Tara) (Entered: 05/03/2016)
146 NOTICE of Service of Discovery filed by Cara M Christ. (Zoellner, Tara) (Entered: 05/03/2016)
147 *NOTICE re: COMPLIANCE WITH PROTECTIVE ORDER re: 104 by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley . (Attachments: # 1 Exhibit A)(Davis, Julia) *Modified to add link on 5/6/2016 (REK). (Entered: 05/05/2016)
148 NOTICE of Service of Discovery filed by Gregory McKay. (McBride, Melanie) (Entered: 05/05/2016)
149 NOTICE re: NOTICE OF COMPLIANCE WITH COURT ORDER by Gregory McKay re: 144 Order . (McBride, Melanie) (Entered: 05/05/2016)
150 NOTICE of Service of Discovery filed by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley. (Davis, Julia) (Entered: 05/06/2016)
151 MOTION to Amend/Correct Rule 16 Scheduling Order by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley. (Attachments: # 1 Text of Proposed Order)(Davis, Julia) (Entered: 05/06/2016)
152 NOTICE of Service of Discovery filed by Gregory McKay. (McBride, Melanie) (Entered: 05/10/2016)
153 NOTICE of Service of Discovery filed by Gregory McKay. (McBride, Melanie) (Entered: 05/10/2016)
154 *NOTICE of Service of Discovery and Settlement by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley . (Barber, Philip) *Modified to correct event type on 5/12/2016 (EJA). (Entered: 05/11/2016)

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 26 of 44

05/12/2016
05/13/2016
05/18/2016 05/24/2016 05/24/2016 05/24/2016 05/27/2016 06/02/2016
06/10/2016 06/10/2016 06/10/2016 06/10/2016 06/10/2016 06/10/2016 06/10/2016 06/10/2016 06/13/2016

155 ***AMENDED BY 283 ***FIRST AMENDED RULE 16 SCHEDULING ORDER: IT IS ORDERED granting Plaintiffs' 151 Motion to Amend the Court's Rule 16 Scheduling Order. Fact Discovery due by 3/30/2017. Dispositive motions due by 9/14/2017. Joint Proposed Pretrial Order due by 11/29/2017. Signed by Senior Judge Roslyn O Silver on 5/11/16. (CLB) Modified on 2/22/2017 (REK). (Entered: 05/12/2016)
156 ORDER the Motion for Appointment 83 is GRANTED IN PART. Jennifer Kupiszewski is appointed as next friend of B.T and Margaret Tinsley is appointed as next friend of B.K. IT IS FURTHER ORDERED the parties shall meet and confer and, no later than May 27, 2016 submit a joint statement identifying a suitable individual to serve as next friend for A.C−B, M.C−B, J.C−B, D.C−B, and J.M. If the parties cannot agree on a suitable individual, they shall each identify two suitable individuals, explaining those individuals' backgrounds. Signed by Senior Judge Roslyn O. Silver on 5/13/16. (CLB) (Entered: 05/13/2016)
157 NOTICE re: Notice of Filing Protective Order Agreements by Thomas J Betlach . (Attachments: # 1 Exhibit)(Johnston, Logan) (Entered: 05/18/2016)
158 NOTICE of Attorney Withdrawal of William Kapell filed by Julia Lucia Davis. (Davis, Julia) (Entered: 05/24/2016)
159 NOTICE of Attorney Withdrawal of Rachel B. Nili filed by Julia Lucia Davis. (Davis, Julia) (Entered: 05/24/2016)
160 NOTICE OF PARTY'S CHANGE OF ADDRESS by Jennifer Kupiszewski, Margaret Tinsley: Children's Rights, Inc., Wall Street Plaza, 88 Pine Street, Suite 800, New York, New York 10005. (Davis, Julia) (Entered: 05/24/2016)
161 STATEMENT of Joint Statement Identifying Suitable Next Friend by Plaintiffs Jennifer Kupiszewski, Margaret Tinsley. (Barber, Philip) (Entered: 05/27/2016)
162 ORDER Nicole Hinderaker is appointed as next friend for A.C−B, M.CB, J.C−B, D.C−B, and J.M. IT IS FURTHER ORDERED no later than June 10, 2016, Ms. Hinderaker shall file a statement indicating whether this litigation is in the best interests of A.C−B, M.C−B, J.C−B, D.C−B, and J.M. Signed by Senior Judge Roslyn O. Silver on 6/2/16. (CLB) (Entered: 06/02/2016)
163 NOTICE re: STATEMENT OF NEXT FRIEND NICOLE HINDERAKER by Jennifer Kupiszewski, Margaret Tinsley . (Davis, Julia) (Entered: 06/10/2016)
164 DECLARATION of Nicole Hinderaker re: 163 Notice (Other) of Statement of Next Friend Nicole Hinderaker by Plaintiffs Jennifer Kupiszewski, Margaret Tinsley. (Davis, Julia) (Entered: 06/10/2016)
165 NOTICE of Deposition of Arizona Health Care Cost Containment System, filed by Jennifer Kupiszewski, Margaret Tinsley. (Barber, Philip) (Entered: 06/10/2016)
166 NOTICE of Deposition of Arizona Department of Child Safety, filed by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley. (Barber, Philip) (Entered: 06/10/2016)
167 NOTICE of Deposition of Arizona Department of Health Services, filed by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley. (Barber, Philip) (Entered: 06/10/2016)
168 NOTICE of Deposition of Arizona Department of Child Safety, filed by Jennifer Kupiszewski, Margaret Tinsley. (Barber, Philip) (Entered: 06/10/2016)
169 NOTICE of Deposition of Arizona Department of Child Safety, filed by Jennifer Kupiszewski, Margaret Tinsley. (Barber, Philip) (Entered: 06/10/2016)
170 NOTICE of Deposition of Arizona Department of Child Safety, filed by Jennifer Kupiszewski, Margaret Tinsley. (Barber, Philip) (Entered: 06/10/2016)
171 *NOTICE of Service of Discovery filed by Jennifer Kupiszewski, Margaret Tinsley, Susan Brandt. (Barber, Philip) *Modified to add filer on 6/14/2016 (REK). (Entered: 06/13/2016)

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 27 of 44

06/17/2016 06/20/2016 06/23/2016 06/24/2016 07/01/2016 07/01/2016 07/06/2016 07/06/2016 07/06/2016 07/06/2016 07/06/2016
07/07/2016 07/07/2016 07/11/2016 07/15/2016 07/15/2016 07/25/2016 07/29/2016
08/01/2016

172 NOTICE of Service of Discovery filed by Cara M Christ. (Zoellner, Tara) (Entered: 06/17/2016)
173 NOTICE of Service of Discovery filed by Gregory McKay. (Lento, Gary) (Entered: 06/20/2016)
174 NOTICE of Service of Discovery filed by Cara M Christ. (Zoellner, Tara) (Entered: 06/23/2016)
175 NOTICE of Service of Discovery filed by Thomas J Betlach. (Johnston, Logan) (Entered: 06/24/2016)
176 NOTICE of Service of Discovery filed by Gregory McKay. (Lento, Gary) (Entered: 07/01/2016)
177 NOTICE of Service of Discovery filed by Cara M Christ. (Zoellner, Tara) (Entered: 07/01/2016)
178 MOTION for Admission Pro Hac Vice as to attorney Kathryn Anne Wood on behalf of Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, and Margaret Tinsley. (BAS) (Entered: 07/06/2016)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX173704 as to Kathryn Anne Wood. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 07/06/2016)
179 MOTION for Admission Pro Hac Vice as to attorney Aaron Finch on behalf of Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, and Margaret Tinsley. (BAS) (Entered: 07/06/2016)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX173705 as to Aaron Finch. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 07/06/2016)
180 ORDER pursuant to General Order 09−08 granting 178 Motion for Admission Pro Hac Vice; granting 179 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e−mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 07/06/2016)
181 NOTICE of Attorney Withdrawal of Adriana Teresa Luciano filed by Philip Barber. (Barber, Philip) (Entered: 07/07/2016)
182 NOTICE of Service of Discovery filed by Thomas J Betlach. (Johnston, Logan) (Entered: 07/07/2016)
183 NOTICE of Service of Discovery filed by Cara M Christ. (Zoellner, Tara) (Entered: 07/11/2016)
184 NOTICE of Service of Discovery filed by Gregory McKay. (Lento, Gary) (Entered: 07/15/2016)
185 NOTICE of Service of Discovery filed by Gregory McKay. (Lento, Gary) (Entered: 07/15/2016)
186 NOTICE of Service of Discovery filed by Thomas J Betlach. (Johnston, Logan) (Entered: 07/25/2016)
187 *Joint MOTION to Substitute Party: substituting Defendant Betlach in place of Defendant Christ in the First Cause of Action and MOTION to Dismiss Defendant Christ from the Action by Jennifer Kupiszewski, Margaret Tinsley. (Attachments: # 1 Text of Proposed Order)(Barber, Philip). *Added MOTION to Dismiss Party on 8/1/2016 (REK). (Entered: 07/29/2016)
188 ORDER: The motion (Doc. 187 ) is GRANTED. Thomas J. Betlach is substituted as a defendant in the First Cause of Action set forth in the Second Amended Complaint (Doc. 37 ), in place of Defendant Cara M. Christ. IT IS FURTHER ORDERED that

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 28 of 44

08/04/2016 08/05/2016 08/08/2016 08/09/2016 08/10/2016
08/16/2016 08/17/2016 08/18/2016 08/18/2016
08/19/2016 08/23/2016
08/23/2016 08/23/2016
08/30/2016 08/30/2016
08/31/2016 08/31/2016

Defendant Cara M. Christ is dismissed from the above−entitled action. Signed by Senior Judge Roslyn O Silver on 7/29/2016. (REK) (Entered: 08/01/2016)
189 NOTICE of Appearance by Logan T Johnston on behalf of Thomas J Betlach. (Johnston, Logan) (Entered: 08/04/2016)
190 NOTICE of Service of Discovery filed by Gregory McKay. (McBride, Melanie) (Entered: 08/05/2016)
191 NOTICE of Service of Discovery filed by Thomas J Betlach. (Zoellner, Tara) (Entered: 08/08/2016)
192 *AMENDED ANSWER to 37 Amended Complaint by Thomas J Betlach.(Johnston, Logan) *Modified to correct event on 8/10/2016 (ATD). (Entered: 08/09/2016)
193 NOTICE of Errata re: 192 Answer to Amended Complaint, 37 Amended Complaint by Defendant Thomas J Betlach.. (Attachments: # 1 Corrected Amended Answer of Defendant Thomas Betlach to Second Amended Complaint)(Zoellner, Tara) (Entered: 08/10/2016)
194 STIPULATION of Dismissal of Named Plaintiff J.C−B. Without Prejudice by Gregory McKay. (Attachments: # 1 Text of Proposed Order Proposed Order)(McBride, Melanie) (Entered: 08/16/2016)
195 NOTICE of Service of Discovery filed by Gregory McKay. (Lento, Gary) (Entered: 08/17/2016)
196 MOTION to Seal Document by Jennifer Kupiszewski, Margaret Tinsley. (Barber, Philip) (Entered: 08/18/2016)
197 ***FILED at (Doc. 200 )−−SEALED LODGED Proposed Appendix A of Protective Order Agreement re: 196 MOTION to Seal Document . Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Jennifer Kupiszewski, Margaret Tinsley. (Barber, Philip) Modified on 8/23/2016 (ATD). (Entered: 08/18/2016)
198 NOTICE of Service of Discovery filed by Thomas J Betlach. (Zoellner, Tara) (Entered: 08/19/2016)
199 ORDER granting 196 Motion to Seal "Appendix A of Protective Order Agreement." FURTHER ORDERED the sealed documents will not be provided to Defendants at this time. Signed by Senior Judge Roslyn O Silver on 8/23/2016. (ATD) (Entered: 08/23/2016)
200 Sealed: Appendix A of Protective Order Agreement by Jennifer Kupiszewski and Margaret Tinsley. (ATD) (Entered: 08/23/2016)
201 ORDER: The stipulation (Doc. 194 ) is GRANTED. Plaintiff J.C−B., and any claims of Named Plaintiff J.C−B., are hereby dismissed without prejudice. Each Party shall bear their own taxable costs with respect to the individual claims of Named Plaintiff J.C−B. The claims of the remaining Named Plaintiffs remain active in this lawsuit at this time. Signed by Senior Judge Roslyn O Silver on 8/23/2016. (REK) (Entered: 08/23/2016)
202 STATEMENT of Joint Statement of Dispute Regarding Production of Expert Reports for Class Certification by Defendant Gregory McKay. (Lento, Gary) (Entered: 08/30/2016)
203 *STATEMENT of Joint Statement of Dispute Regarding Production of Expert Reports for Class Certification by Defendant Gregory McKay. (McBride, Melanie)*Document Appears to be a duplicate of 202 *Modified on 8/31/2016 (REK). (Entered: 08/30/2016)
204 NOTICE of Service of Discovery filed by Gregory McKay. (Lento, Gary) (Entered: 08/31/2016)
205 STATEMENT of JOINT STATEMENT OF DISPUTE REGARDING NAMED PLAINTIFFS RESPONSES TO DEFENDANT GREGORY McKAYS REQUESTS FOR PRODUCTION OF DOCUMENTS TO EACH NAMED PLAINTIFF − SET NO. ONE by Defendant Gregory McKay. (McBride, Melanie) (Entered: 08/31/2016)

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 29 of 44

09/06/2016 09/06/2016 09/06/2016 09/06/2016 09/12/2016 09/16/2016 09/23/2016 09/23/2016 10/04/2016 10/05/2016 10/11/2016 10/13/2016
10/13/2016 10/13/2016 10/14/2016
10/14/2016 10/18/2016 10/21/2016 10/24/2016 11/01/2016

206 NOTICE of Service of Discovery filed by Gregory McKay. (Lento, Gary) (Entered: 09/06/2016)
207 NOTICE of Service of Discovery filed by Gregory McKay. (Lento, Gary) (Entered: 09/06/2016)
208 ORDER: The parties have submitted two discovery disputes. This Order addresses both. See attached Order for complete details. Signed by Senior Judge Roslyn O Silver on 9/6/2016. (KAL) (Entered: 09/06/2016)
209 NOTICE of Service of Discovery filed by Thomas J Betlach. (Zoellner, Tara) (Entered: 09/06/2016)
210 *Second NOTICE of Service of Discovery and Settlement by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley . (Barber, Philip) *Modified to correct event on 9/13/2016 (REK). (Entered: 09/12/2016)
211 NOTICE re: Notice of Compliance with First Amended Scheduling Order by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley re: 155 Scheduling Order, Terminate Motions . (Barber, Philip) (Entered: 09/16/2016)
212 NOTICE of Service of Discovery filed by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley. (Barber, Philip) (Entered: 09/23/2016)
213 NOTICE of Service of Discovery filed by Gregory McKay. (Lento, Gary) (Entered: 09/23/2016)
214 *NOTICE of Service of Discovery filed by Jennifer Kupiszewski, Margaret Tinsley, Susan Brandt. (Barber, Philip) *Modified to correct filers on 10/5/2016 (REK). (Entered: 10/04/2016)
215 NOTICE of Appearance by Wendy Jacobsen Harrison on behalf of Gregory McKay. (Harrison, Wendy) (Entered: 10/05/2016)
216 NOTICE of Attorney Withdrawal of Kathryn Anne Wood filed by Philip Barber. (Barber, Philip) (Entered: 10/11/2016)
217 Joint MOTION to Dismiss Counts/Claims : Dismissal of the First Cause of Action as against Director Betlach and to the Dismissal of the Fifth Cause of Action in this Action by Jennifer Kupiszewski, Margaret Tinsley. (Attachments: # 1 Text of Proposed Order)(Barber, Philip) (Entered: 10/13/2016)
218 NOTICE re: Filing Protective Order Agreement in Compliance with Protective Order by Thomas J Betlach re: 104 Order on Motion for Leave to File . (Attachments: # 1 Exhibit A − Protective Order Agreement)(Zoellner, Tara) (Entered: 10/13/2016)
219 NOTICE of Service of Discovery filed by Thomas J Betlach. (Zoellner, Tara) (Entered: 10/13/2016)
220 ORDER granting 217 Joint MOTION to Dismiss Counts/Claims. Defendant Thomas J. Betlach is dismissed as a defendant from the First Cause of Action set forth in the 37 Second Amended Complaint. The Fifth Cause of Action set forth in the 37 Second Amended Complaint is dismissed from the above−captioned action. Signed by Senior Judge Roslyn O Silver on 10/14/2016. (ATD) (Entered: 10/14/2016)
221 NOTICE of Service of Discovery filed by Gregory McKay. (Lento, Gary) (Entered: 10/14/2016)
222 NOTICE re: Filing Protective Order Agreement in Compliance with Protective Order by Gregory McKay re: 104 Order on Motion for Leave to File . (Attachments: # 1 Exhibit A − Protective Order Agreement)(Lento, Gary) (Entered: 10/18/2016)
223 NOTICE of Service of Discovery filed by Thomas J Betlach. (Zoellner, Tara) (Entered: 10/21/2016)
224 NOTICE of Service of Discovery filed by Gregory McKay. (Lento, Gary) (Entered: 10/24/2016)
225 *Joint MOTION for Extension of Time for the Briefing Motions Set by L.R. Civ. P. 7.2, Joint MOTION for Leave to File Excess Pages for Motion for the Briefing

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 30 of 44

11/02/2016 11/02/2016 11/02/2016 11/10/2016
11/17/2016 11/18/2016 11/18/2016
11/29/2016 11/29/2016 11/29/2016 11/29/2016 11/29/2016 11/29/2016

Motions Set by L.R. Civ. P. 7.2 by Jennifer Kupiszewski, Margaret Tinsley, Susan Brandt. (Attachments: # 1 Text of Proposed Order)(Barber, Philip) *Modified to correct motion type and add additional filer on 11/2/2016 (REK). (Entered: 11/01/2016)
226 *NOTICE of Deposition of Janette Bell, filed by Jennifer Kupiszewski, Margaret Tinsley, Susan Brandt. (Barber, Philip) *Modified to add additional filer on 11/3/2016 (REK). (Entered: 11/02/2016)
227 *NOTICE of Deposition of Jason Keith, filed by Jennifer Kupiszewski, Margaret Tinsley. (Barber, Philip) *Modified to add additional filer on 11/3/2016 (REK). (Entered: 11/02/2016)
228 *NOTICE of Deposition of Curtis Ballard, filed by Jennifer Kupiszewski, Margaret Tinsley, Susan Brandt. (Barber, Philip) *Modified to add additional filer on 11/3/2016 (REK). (Entered: 11/02/2016)
229 ORDER: IT IS ORDERED Joint Motion and Stipulation to Exceed Page and Time Limits for the Briefing of Motions (Doc. 225 ) is GRANTED in part and DENIED in part. Parties' request to extend the class certification briefing schedule is GRANTED. Parties' request for leave to file excess pages for class certification briefing is GRANTED in part and DENIED in part. Plaintiffs' brief in support of their Motion for Class Certification shall be no more than 40 pages. Defendants shall file one joint Opposition Brief of no more than 40 pages or each defendant may file an individual opposition of no more than 20 pages. Plaintiffs' Reply Brief shall be no more than 25 pages. Ordered by Senior Judge Roslyn O Silver. (KAL) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 11/10/2016)
230 MOTION for Admission Pro Hac Vice as to attorney Harry Frischer on behalf of Susan Brandt(on behalf of minors:), and Margaret Tinsley. (BAS) (Entered: 11/18/2016)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX178838 as to Harry Frischer. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 11/18/2016)
231 ORDER pursuant to General Order 09−08 granting 230 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e−mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 11/18/2016)
232 Joint MOTION to Seal Document Items Associated With Motion for Class Certification by Jennifer Kupiszewski, Margaret Tinsley. (Attachments: # 1 Text of Proposed Order)(Frischer, Harry) (Entered: 11/29/2016)
233 *FILED at Doc. 286 *SEALED LODGED Proposed Items Associated with Motion for Class Certification re: 232 Joint MOTION to Seal Document Items Associated With Motion for Class Certification. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Jennifer Kupiszewski, Margaret Tinsley. (Frischer, Harry) *Modified on 2/23/2017 (MAP)*. (Entered: 11/29/2016)
234 MOTION to Certify Class and Memorandum of Points and Authorities by Jennifer Kupiszewski, Margaret Tinsley. (Attachments: # 1 Text of Proposed Order)(Frischer, Harry) (Entered: 11/29/2016)
235 DECLARATION of Harry Frischer re: 234 MOTION to Certify Class and Memorandum of Points and Authorities by Plaintiffs Jennifer Kupiszewski, Margaret Tinsley. (Frischer, Harry) (Entered: 11/29/2016)
236 DECLARATION of Joseph Mais re: 234 MOTION to Certify Class and Memorandum of Points and Authorities by Plaintiffs Jennifer Kupiszewski, Margaret Tinsley. (Frischer, Harry) (Entered: 11/29/2016)
237 DECLARATION of Anne Ronan re: 234 MOTION to Certify Class and Memorandum of Points and Authorities by Plaintiffs Jennifer Kupiszewski, Margaret Tinsley.

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 31 of 44

11/29/2016
11/29/2016 11/30/2016 12/20/2016 12/20/2016
12/21/2016 12/21/2016
12/21/2016 12/21/2016 12/21/2016 12/21/2016
12/22/2016 01/03/2017 01/03/2017

(Frischer, Harry) (Entered: 11/29/2016)
238 DECLARATION of Julia L. Davis re: 234 MOTION to Certify Class and Memorandum of Points and Authorities by Plaintiffs Jennifer Kupiszewski, Margaret Tinsley. (Attachments: # 1 Exhibit Index, 31−36, # 2 Exhibit 37−49, # 3 Exhibit 50−63, # 4 Exhibit 65−75, # 5 Exhibit 76−82, # 6 Exhibit 83−84 86−88)(Frischer, Harry) (Entered: 11/29/2016)
239 Additional Attachments to Main Document re: 235 Declaration, 237 Declaration, 238 Declaration, 236 Declaration Certificate of Service by Plaintiffs Jennifer Kupiszewski, Margaret Tinsley. (Frischer, Harry) (Entered: 11/29/2016)
240 NOTICE of Service of Discovery filed by Jennifer Kupiszewski, Margaret Tinsley. (Frischer, Harry) (Entered: 11/30/2016)
241 MOTION Defendants' Emergency Motion to Postpone Class Certification Briefing by Thomas J Betlach. (Attachments: # 1 Exhibit A − Email from N. Acedo to Plaintiffs' counsel, # 2 Exhibit B − Email from N. Acedo to H. Frischer, # 3 Text of Proposed Order)(Struck, Daniel) (Entered: 12/20/2016)
242 IT IS ORDERED Defendants' Emergency Motion to Postpone Class Certification Briefing 241 is DENIED. Defendants' concern that Plaintiffs will seek an amendment to add new parties in the middle of class certification is well taken. The deadline to amend the Complaint has passed, and the Court will not be inclined to allow Plaintiffs to add additional parties at this point. IT IS FURTHER ORDERED Parties shall adhere to the class certification deadlines as previously set in the Court's November 10, 2016 Order 229 . Ordered by Senior Judge Roslyn O. Silver.(ROS, sg)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 12/20/2016)
243 MOTION to Seal Document by Gregory McKay. (Attachments: # 1 Text of Proposed Order Proposed Order)(McBride, Melanie) (Entered: 12/21/2016)
244 *FILED at Doc. 288 *SEALED LODGED Proposed Exhibits 4, 5, 6 to DCS Opposition to Motion for Class Certification re: 243 MOTION to Seal Document . Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Gregory McKay. (McBride, Melanie) *Modified on 2/23/2017 (MAP)*. (Entered: 12/21/2016)
245 RESPONSE in Opposition re: 234 MOTION to Certify Class and Memorandum of Points and Authorities filed by Gregory McKay. (McBride, Melanie) (Entered: 12/21/2016)
246 DECLARATION of Gary N. Lento re: 245 Response in Opposition to Motion for Class Certification by Defendant Gregory McKay. (Attachments: # 1 Exhibit Exhibits 1−3, 7−13, # 2 Exhibit Exhibits 14−25)(McBride, Melanie) (Entered: 12/21/2016)
247 DECLARATION of Michael Faust in Support of DCS'S Opposition to Motion for Class Certification re: 245 Response in Opposition to Motion for Class Certification by Defendant Gregory McKay. (McBride, Melanie) (Entered: 12/21/2016)
248 RESPONSE to Motion re: 234 MOTION to Certify Class and Memorandum of Points and Authorities filed by Thomas J Betlach. (Attachments: # 1 Exhibit A − ACH081468, # 2 Exhibit B − Leclair Turner Depo Excerpts, # 3 Exhibit C − Jason Keith Depo Excerpts, # 4 Exhibit D − Declaration of Dr. Sara Salek, # 5 Exhibit E − Janette Bell Depo Excerpts, # 6 Exhibit F − CMDP Penetration, # 7 Exhibit G − Immunizations)(Struck, Daniel) (Entered: 12/21/2016)
249 NOTICE re: of Filing Signed Declaration of Dr. Sara Salek in support of Defendant Betlach's Response to Plaintiffs' Motion for Class Certification (Dkt. 248−04) by Thomas J Betlach re: 248 Response to Motion . (Attachments: # 1 Exhibit Executed Declaration of Dr. Sara Salek)(Struck, Daniel) (Entered: 12/22/2016)
250 NOTICE of Service of Discovery filed by Gregory McKay. (McBride, Melanie) (Entered: 01/03/2017)
251 NOTICE of Service of Discovery filed by Gregory McKay. (McBride, Melanie) (Entered: 01/03/2017)

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 32 of 44

01/03/2017 01/04/2017 01/04/2017
01/05/2017
01/05/2017 01/05/2017 01/05/2017
01/05/2017 01/05/2017 01/05/2017 01/05/2017 01/06/2017 01/06/2017 01/09/2017 01/12/2017 01/20/2017 01/23/2017

252 MOTION for Admission Pro Hac Vice as to attorney Daniele Gerard on behalf of Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, and Margaret Tinsley. (BAS) (Entered: 01/04/2017)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX180317 as to Daniele Gerard. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 01/04/2017)
253 ORDER pursuant to General Order 09−08 granting 252 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e−mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 01/04/2017)
254 *REPLY to Response to Motion re: 234 MOTION to Certify Class and Memorandum of Points and Authorities filed by Jennifer Kupiszewski, Margaret Tinsley, Susan Brandt. (Frischer, Harry) *Modified to add filer on 1/6/2017 (REK). (Entered: 01/05/2017)
255 *NOTICE re: Intent to Serve Subpoena on Cenpatico Integrated Care by Jennifer Kupiszewski, Margaret Tinsley, Susan Brandt . (Frischer, Harry) *Modified to add additional filer on 1/6/2017 (REK). (Entered: 01/05/2017)
256 *NOTICE re: Intent to Serve Subpoena on Community Partnership of Southern Arizona, Inc. by Jennifer Kupiszewski, Margaret Tinsley, Susan Brandt . (Frischer, Harry) *Modified to add additional filer on 1/6/2017 (REK). (Entered: 01/05/2017)
257 *NOTICE re: Intent to Serve Subpoena on the Foster Care Review Board of the Arizona State Supreme Court by Jennifer Kupiszewski, Margaret Tinsley, Susan Brandt . (Frischer, Harry) *Modified to add additional filer on 1/6/2017 (REK). (Entered: 01/05/2017)
258 *NOTICE re: Intent to Serve Subpoena on Health Choice Integrated Care by Jennifer Kupiszewski, Margaret Tinsley, Susan Brandt . (Frischer, Harry) *Modified to add additional filer on 1/6/2017 (REK). (Entered: 01/05/2017)
259 *NOTICE re: Intent to Serve Subpoena on Magellan Health Services of Arizona, Inc. by Jennifer Kupiszewski, Margaret Tinsley, Susan Brandt . (Frischer, Harry) *Modified to add additional filer on 1/6/2017 (REK). (Entered: 01/05/2017)
260 *NOTICE re: Intent to Serve Subpoena on Mercy Maricopa Integrated Care by Jennifer Kupiszewski, Margaret Tinsley, Susan Brandt . (Frischer, Harry) *Modified to add additional filer on 1/6/2017 (REK). (Entered: 01/05/2017)
261 *NOTICE re: Intent to Serve Subpoena on Northern Arizona Regional Behavioral Health Authority by Jennifer Kupiszewski, Margaret Tinsley, Susan Brandt . (Frischer, Harry) *Modified to add additional filer on 1/6/2017 (REK). (Entered: 01/05/2017)
262 NOTICE of Service of Discovery filed by Gregory McKay. (McBride, Melanie) (Entered: 01/06/2017)
263 NOTICE of Service of Discovery filed by Jennifer Kupiszewski, Margaret Tinsley. (Finch, Aaron) (Entered: 01/06/2017)
264 NOTICE re: Amended Notice of Intent to Serve Subpoena on Cenpatico Integrated Care by Jennifer Kupiszewski, Margaret Tinsley re: 255 Notice (Other) . (Frischer, Harry) (Entered: 01/09/2017)
265 NOTICE re: Third Notice of Discovery and Settlement by Jennifer Kupiszewski, Margaret Tinsley . (Frischer, Harry) (Entered: 01/12/2017)
266 NOTICE of Service of Discovery filed by Thomas J Betlach. (Zoellner, Tara) (Entered: 01/20/2017)
267 NOTICE of Attorney Withdrawal of Philip Barber filed by Aaron Finch. (Finch, Aaron) (Entered: 01/23/2017)

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 33 of 44

01/23/2017 01/23/2017 01/24/2017 01/24/2017
01/26/2017 01/27/2017 01/31/2017 02/02/2017 02/02/2017 02/02/2017 02/08/2017 02/08/2017
02/10/2017 02/13/2017 02/16/2017
02/22/2017
02/22/2017

268 NOTICE of Attorney Withdrawal of Julia Lucia Davis filed by Aaron Finch. (Finch, Aaron) (Entered: 01/23/2017)
269 MOTION to Quash Plaintiffs' Subpoena by Mercy Maricopa Integrated Care/Desert Vista Hospital. (Attachments: # 1 Exhibit A)(Covington, Jill) (Entered: 01/23/2017)
270 NOTICE re: Revised Notice of Deposition of Employees of the Arizona Health Care Cost Containment System by Jennifer Kupiszewski, Margaret Tinsley . (Finch, Aaron) (Entered: 01/24/2017)
271 IT IS ORDERED pursuant to Local Rule 7.2(j) and Judge Silver's Standing Orders, counsel for Non−Party Mercy Maricopa Integrated Care and Plaintiffs shall personally meet and confer and make all reasonable efforts to resolve the discovery disputes raised in [Doc. 269] Non−Party Mercy Maricopa Integrated Care's Motion to Quash. If unable to resolve all their disputes, Non−Party Mercy Maricopa Integrated Care and Plaintiffs may file a joint statement regarding any remaining disputes. This joint statement is not to exceed 14 lines per issue for each side and shall be accompanied by written certification that there has been compliance with Rule 7.2(j). Ordered by Senior Judge Roslyn O Silver on 01/24/2017. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (ROS, sg) (Entered: 01/24/2017)
272 NOTICE re: Intent to Serve Subpoena on Clarus Consulting Group by Jennifer Kupiszewski, Margaret Tinsley . (Finch, Aaron) (Entered: 01/26/2017)
273 NOTICE of Service of Discovery filed by Thomas J Betlach. (Zoellner, Tara) (Entered: 01/27/2017)
274 NOTICE re: Intent to Serve Subpoena on Cenpatico Behavioral Health of Arizona by Jennifer Kupiszewski, Margaret Tinsley . (Finch, Aaron) (Entered: 01/31/2017)
275 NOTICE of Service of Discovery filed by Gregory McKay. (McBride, Melanie) (Entered: 02/02/2017)
276 NOTICE of Service of Discovery filed by Gregory McKay. (McBride, Melanie) (Entered: 02/02/2017)
277 NOTICE of Service of Discovery filed by Thomas J Betlach. (Zoellner, Tara) (Entered: 02/02/2017)
278 MOTION to Seal Document by Jennifer Kupiszewski, Margaret Tinsley. (Attachments: # 1 Exhibit Oral Argument Transcript)(Finch, Aaron) (Entered: 02/08/2017)
279 S*FILED at Doc. 290 *EALED LODGED Proposed Appendix A of Protective Order Agreement re: 278 MOTION to Seal Document . Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Jennifer Kupiszewski, Margaret Tinsley. (Finch, Aaron) *Modified on 2/23/2017 (MAP)*. (Entered: 02/08/2017)
280 NOTICE of Service of Discovery filed by Thomas J Betlach. (Zoellner, Tara) (Entered: 02/10/2017)
281 NOTICE of Service of Discovery filed by Gregory McKay. (McBride, Melanie) (Entered: 02/13/2017)
282 *JOINT MOTION to Amend/Correct 155 First Amended Rule 16 Scheduling Order by Jennifer Kupiszewski, Margaret Tinsley. (Attachments: # 1 Text of Proposed Order)(Frischer, Harry) *Modified on 2/16/2017 to correct docket text (MAP)*. Modified to add document link on 2/17/2017 (REK). (Entered: 02/16/2017)
283 SECOND AMENDED RULE 16 SCHEDULING ORDER: The Joint Motion to Amend the Rule 16 Scheduling Order 282 is GRANTED. Discovery due by 8/31/2017. Dispositive motions due by 2/14/2018. Proposed Pretrial Order due by 4/30/2018. See document for further details. Signed by Senior Judge Roslyn O Silver on 2/22/2017. (REK) (Entered: 02/22/2017)
284 ORDER: IT IS ORDERED Non−Party Mercy Maricopa Integrated Care's Motion to Quash Plaintiffs' Subpoena 269 is DENIED AS MOOT [see attached Order for details]. Signed by Senior Judge Roslyn O Silver on 2/22/17.(MAW) (Entered: 02/22/2017)

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 34 of 44

02/23/2017
02/23/2017 02/23/2017
02/23/2017 02/23/2017
02/23/2017 02/27/2017 02/27/2017
03/03/2017 03/03/2017 03/06/2017
03/06/2017 03/06/2017
03/06/2017 03/10/2017 03/17/2017 03/17/2017

285 *ORDER granting 232 Motion to Seal. That the exhibits contained in Document 233 , which are submitted in support of Plaintiffs' Motion for Class Certification, shall be filed under seal. Signed by Senior Judge Roslyn O Silver on 2/22/17. (MAP) *Modified on 2/23/2017 to unseal, sealed in error; NEF regenerated (MAP)/(SCH). (Entered: 02/23/2017)
286 Sealed Exhibits to 234 Motion to Certify Class by Jennifer Kupiszewski, Margaret Tinsley. (MAP) (Entered: 02/23/2017)
287 ORDER granting 243 Motion to Seal. That the Exhibits contained in Document 243 , which are submitted in support of DCS's Opposition to Plaintiffs' Motion for Class Certification, may be filed under seal. Signed by Senior Judge Roslyn O Silver on 2/22/17. (MAP) (Entered: 02/23/2017)
288 Sealed Exhibits to 245 Response in Opposition to Motion to Certify Class by Gregory McKay. (MAP) (Entered: 02/23/2017)
289 ORDER granting 278 Motion to Seal. Pursuant to LRCiv 5.6, Plaintiffs are permitted to file ex parte and under seal signed copies of, Appendix A: Protective Order Agreement. Signed by Senior Judge Roslyn O Silver on 2/22/17. (MAP) (Entered: 02/23/2017)
290 Sealed Ex Parte Appendix A of Protective Order Agreement by Jennifer Kupiszewski, Margaret Tinsley. (MAP) (Entered: 02/23/2017)
291 MOTION to Seal Document by Jennifer Kupiszewski, Margaret Tinsley. (Attachments: # 1 Text of Proposed Order)(Finch, Aaron) (Entered: 02/27/2017)
292 *FILED at Doc. 296 *SEALED LODGED Proposed Appendix A of Protective Order Agreement re: 291 MOTION to Seal Document . Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Jennifer Kupiszewski, Margaret Tinsley. (Finch, Aaron) *Modified on 3/6/2017 (MAP)*. (Entered: 02/27/2017)
293 *FILED at Doc. 298 *SEALED LODGED Proposed Appendix A. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Gregory McKay. (McBride, Melanie) *Modified on 3/6/2017 (MAP)*. (Entered: 03/03/2017)
294 MOTION to Seal Document 293 Sealed Lodged Proposed Document by Gregory McKay. (Attachments: # 1 Text of Proposed Order Proposed Order)(McBride, Melanie) (Entered: 03/03/2017)
295 ORDER granting 291 Motion to Seal. Plaintiffs are permitted to file ex parte and under seal a signed copy of "Appendix A: Protective Order Agreement," submitted February 27, 2017 pursuant to LRCiv 5.6. Signed by Senior Judge Roslyn O Silver on 3/3/17.(MAP) (Entered: 03/06/2017)
296 Sealed Ex Parte Appendix A of Protective Order Agreement by Jennifer Kupiszewski, Margaret Tinsley. (MAP) (Entered: 03/06/2017)
297 ORDER granting 294 Motion to Seal. Pursuant to LRCiv 5.6, Defendants are permitted to file ex parte and under seal the signed Copies of Appendix A: Protective Order Agreement. Signed by Senior Judge Roslyn O Silver on 3/3/17.(MAP) (Entered: 03/06/2017)
298 Sealed Ex Parte Appendix A: Protective Order Agreement by Gregory McKay. (MAP) (Entered: 03/06/2017)
299 NOTICE of Service of Discovery filed by Gregory McKay. (Lento, Gary) (Entered: 03/10/2017)
300 MOTION to Seal Document by Jennifer Kupiszewski, Margaret Tinsley. (Attachments: # 1 Text of Proposed Order)(Finch, Aaron) (Entered: 03/17/2017)
301 ***FILED at (Doc. 303 )−−SEALED LODGED Proposed Appendix A of Protective Order Agreement re: 300 MOTION to Seal Document . Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Jennifer Kupiszewski, Margaret Tinsley. (Finch, Aaron) Modified on 3/21/2017 (ATD). (Entered: 03/17/2017)

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 35 of 44

03/21/2017
03/21/2017 03/23/2017 03/23/2017 03/27/2017 03/27/2017 03/28/2017 04/05/2017 04/05/2017
04/06/2017 04/07/2017 04/07/2017 04/07/2017 04/26/2017 05/09/2017 05/12/2017 05/15/2017
05/19/2017

302 ORDER granting 300 Motion to Seal and Submit Document Ex Parte. Pursuant to LRCiv 5.6, Plaintiffs may file ex parte and under seal a signed copy of Appendix A: Protective Order Agreement. Signed by Senior Judge Roslyn O Silver on 03/20/2017. (ATD) (Entered: 03/21/2017)
303 EX PARTE SEALED APPENDIX A signed by Jennifer Kupiszewski and Margaret Tinsley. (ATD) (Entered: 03/21/2017)
304 NOTICE of Service of Discovery filed by Gregory McKay. (Lento, Gary) (Entered: 03/23/2017)
305 NOTICE of Service of Discovery filed by Gregory McKay. (Lento, Gary) (Entered: 03/23/2017)
306 NOTICE of Service of Discovery filed by Gregory McKay. (Lento, Gary) (Entered: 03/27/2017)
307 NOTICE of Service of Discovery filed by Thomas J Betlach. (Zoellner, Tara) (Entered: 03/27/2017)
308 NOTICE of Service of Discovery filed by Jennifer Kupiszewski, Margaret Tinsley. (Finch, Aaron) (Entered: 03/28/2017)
309 MOTION to Seal Document by Jennifer Kupiszewski, Margaret Tinsley. (Attachments: # 1 Text of Proposed Order)(Finch, Aaron) (Entered: 04/05/2017)
310 *FILED at Doc. 312 *SEALED LODGED Proposed Appendix A of Protective Order Agreement re: 309 MOTION to Seal Document . Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Jennifer Kupiszewski, Margaret Tinsley. (Finch, Aaron) *Modified on 4/7/2017 (MAP)*. (Entered: 04/05/2017)
Remark: Pro hac vice motion granted for Stephanie Persson on behalf of all plaintiff children. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 04/06/2017)
311 ORDER granting 309 Motion to file Ex Parte and Under Seal Signed Copies of Appendix A: Protective Order Agreement. Signed by Senior Judge Roslyn O Silver on 4/6/17.(MAP) (Entered: 04/07/2017)
312 Sealed Ex Parte Appendix A of Protective Order Agreement (Signed Copies) by Jennifer Kupiszewski, Margaret Tinsley. (MAP) (Entered: 04/07/2017)
313 NOTICE of Service of Discovery filed by Thomas J Betlach. (Zoellner, Tara) (Entered: 04/07/2017)
314 NOTICE of Attorney Withdrawal Melanie G. McBride filed by Gary N Lento. (Lento, Gary) (Entered: 04/26/2017)
315 NOTICE of Service of Discovery filed by Thomas J Betlach. (Zoellner, Tara) (Entered: 05/09/2017)
316 *NOTICE (Fourth) of Discovery and Settlement by Jennifer Kupiszewski, Margaret Tinsley . (Finch, Aaron) *Modified to correct event on 5/15/2017 (REK). (Entered: 05/12/2017)
317 *Joint MOTION to Amend/Correct 283 Second Amended Rule 16 Scheduling Order by Jennifer Kupiszewski, Margaret Tinsley. (Attachments: # 1 Text of Proposed Order)(Finch, Aaron) *Modified to add document link on 5/16/2017 (REK). (Entered: 05/15/2017)
318 ** AMENDED BY 367 ** ORDER: Pursuant to the Parties' Joint Motion to Amend the Rule 16 Scheduling Order and good cause appearing, IT IS ORDERED the motion (Doc. 317 ) is GRANTED. Pursuant to the terms of the Case Management Plan and the representations made by the parties at the Rule 16 Scheduling Conference, all parties shall comply with the deadlines established in this Order. Discovery due by 9/29/2017. Dispositive motions due by 3/14/2018. Proposed Pretrial Order due by 5/31/2018. [See attached Order for details.] Signed by Senior Judge Roslyn O Silver on 5/19/2017. (KAL) Modified on 10/20/2017 (LAD). (Entered: 05/19/2017)

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 36 of 44

06/01/2017 06/01/2017 06/01/2017 06/01/2017 06/01/2017 06/01/2017 06/01/2017 06/01/2017 06/14/2017 06/21/2017 06/26/2017 07/05/2017 07/05/2017
07/05/2017 07/05/2017 07/07/2017
07/07/2017 07/10/2017 07/12/2017 07/26/2017

319 NOTICE of Deposition of Employees of the Arizona Health Care Cost Containment System, filed by Jennifer Kupiszewski, Margaret Tinsley. (Finch, Aaron) (Entered: 06/01/2017)
320 NOTICE of Deposition of Employees of the Arizona Department of Child Safety, filed by Jennifer Kupiszewski, Margaret Tinsley. (Finch, Aaron) (Entered: 06/01/2017)
321 NOTICE of Deposition of Arizona Department of Child Safety Regarding Case Management Data, filed by Jennifer Kupiszewski, Margaret Tinsley. (Finch, Aaron) (Entered: 06/01/2017)
322 NOTICE of Deposition of Arizona Department of Child Safety Regarding Medical Data, filed by Jennifer Kupiszewski, Margaret Tinsley. (Finch, Aaron) (Entered: 06/01/2017)
323 NOTICE re: Intent to Serve Subpoena on Cenpatico Integrated Care by Jennifer Kupiszewski, Margaret Tinsley . (Finch, Aaron) (Entered: 06/01/2017)
324 NOTICE re: Intent to Serve Subpoena on Health Choice Integrated Care by Jennifer Kupiszewski, Margaret Tinsley . (Finch, Aaron) (Entered: 06/01/2017)
325 NOTICE re: Intent to Serve Subpoena on Mercy Maricopa Integrated Care by Jennifer Kupiszewski, Margaret Tinsley . (Finch, Aaron) (Entered: 06/01/2017)
326 NOTICE of Deposition of Arizona Health Care Cost Containment System Regarding Medical Data, filed by Jennifer Kupiszewski, Margaret Tinsley. (Finch, Aaron) (Entered: 06/01/2017)
327 NOTICE of Deposition of Regina Moraga, filed by Jennifer Kupiszewski, Margaret Tinsley. (Finch, Aaron) (Entered: 06/14/2017)
328 NOTICE re: Intent to Serve Subpoena on Beverly Tobiason by Jennifer Kupiszewski, Margaret Tinsley . (Persson, Stephanie) (Entered: 06/21/2017)
329 NOTICE of Service of Discovery filed by Thomas J Betlach. (Zoellner, Tara) (Entered: 06/26/2017)
330 MOTION to Seal Document by Jennifer Kupiszewski, Margaret Tinsley. (Finch, Aaron) (Entered: 07/05/2017)
331 ***FILED at (Doc. 335 )−−SEALED LODGED Proposed Appendix A of Protective Order Agreement re: 330 MOTION to Seal Document . Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Jennifer Kupiszewski, Margaret Tinsley. (Finch, Aaron) Modified on 7/7/2017 (ATD). (Entered: 07/05/2017)
332 NOTICE of Service of Discovery filed by Gregory McKay. (Lento, Gary) (Entered: 07/05/2017)
333 NOTICE of Service of Discovery filed by Gregory McKay. (Lento, Gary) (Entered: 07/05/2017)
334 ORDER granting 330 Motion to Seal and Submit Document Ex Parte. Plaintiffs may file ex parte and under seal the signed copy of "Appendix A: Protective Order Agreement," submitted July 5, 2017, pursuant to LRCiv 5.6. Signed by Senior Judge Roslyn O Silver on 7/6/2017. (ATD) (Entered: 07/07/2017)
335 SEALED EX PARTE APPENDIX A of Protective Order Agreement by Jennifer Kupiszewski, Margaret Tinsley. (ATD) (Entered: 07/07/2017)
336 NOTICE of Appearance by David Daniel Weinzweig on behalf of Gregory McKay. (Weinzweig, David) (Entered: 07/10/2017)
Remark: Pro hac vice motion granted for Erin McGuinness on behalf of all plaintiff children. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 07/12/2017)
337 NOTICE of Service of Discovery filed by Thomas J Betlach. (Zoellner, Tara) (Entered: 07/26/2017)

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 37 of 44

07/28/2017 07/31/2017 08/01/2017
08/01/2017 08/02/2017 08/03/2017 08/03/2017 08/08/2017 08/17/2017 08/18/2017 08/25/2017
08/25/2017 08/28/2017 08/31/2017 08/31/2017 09/01/2017
09/01/2017 09/01/2017 09/01/2017 09/07/2017 09/07/2017 09/12/2017 09/13/2017

338 NOTICE of Service of Discovery filed by Gregory McKay. (Lento, Gary) (Entered: 07/28/2017)
339 NOTICE of Service of Discovery filed by Jennifer Kupiszewski, Margaret Tinsley. (Finch, Aaron) (Entered: 07/31/2017)
340 *NOTICE of Deposition of Mark Ewy, filed by Jennifer Kupiszewski, Margaret Tinsley, Susan Brandt. (Finch, Aaron) *Modified to add additional filer on 8/2/2017 (REK). (Entered: 08/01/2017)
341 NOTICE of Appearance by Daniel P Quigley on behalf of Gregory McKay. (Quigley, Daniel) (Entered: 08/01/2017)
342 NOTICE of Service of Discovery filed by Gregory McKay. (Lento, Gary) (Entered: 08/02/2017)
343 NOTICE of Attorney Withdrawal − Tara B. Zoellner filed by Daniel Patrick Struck. (Struck, Daniel) (Entered: 08/03/2017)
344 NOTICE of Appearance by Dana M Giallonardo on behalf of Thomas J Betlach. (Giallonardo, Dana) (Entered: 08/03/2017)
345 NOTICE of Appearance by Robert Lawrence Ellman on behalf of Gregory McKay. (Ellman, Robert) (Entered: 08/08/2017)
346 NOTICE of Service of Discovery filed by Gregory McKay. (Lento, Gary) (Entered: 08/17/2017)
347 NOTICE of Service of Discovery filed by Thomas J Betlach. (Struck, Daniel) (Entered: 08/18/2017)
348 *NOTICE of Attorney Substitution (Withdrawal) − Kathleen L. Wieneke by Thomas J Betlach . (Struck, Daniel) *Modified to correct event on 8/28/2017 (REK). (Entered: 08/25/2017)
349 NOTICE of Service of Discovery filed by Gregory McKay. (Quigley, Daniel) (Entered: 08/25/2017)
350 NOTICE OF ATTORNEY'S CHANGE OF ADDRESS/FIRM NAME by Daniel Patrick Struck. (Struck, Daniel) (Entered: 08/28/2017)
351 NOTICE of Service of Discovery filed by Gregory McKay. (Lento, Gary) (Entered: 08/31/2017)
352 NOTICE of Service of Discovery filed by Gregory McKay. (Lento, Gary) (Entered: 08/31/2017)
Remark: Pro Hac Vice granted for attorney Stephen Dixon on behalf of plaintiff children. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (KAS) (Entered: 09/01/2017)
353 NOTICE of Deposition of Employees of the Arizona Department of Child Safety, filed by Jennifer Kupiszewski, Margaret Tinsley. (Finch, Aaron) (Entered: 09/01/2017)
354 NOTICE of Deposition of Jakenna Lebsock, filed by Jennifer Kupiszewski, Margaret Tinsley. (Finch, Aaron) (Entered: 09/01/2017)
355 NOTICE OF ATTORNEY'S CHANGE OF ADDRESS/FIRM NAME by Daniel Patrick Struck. (Struck, Daniel) (Entered: 09/01/2017)
356 NOTICE re: Intent to Serve Subpoena on Mercy Maricopa Integrated Care by Jennifer Kupiszewski, Margaret Tinsley . (Gerard, Daniele) (Entered: 09/07/2017)
357 NOTICE re: Intent to Serve Subpoenas by Gregory McKay . (Attachments: # 1 Exhibit Exhibits 1−28)(Quigley, Daniel) (Entered: 09/07/2017)
358 NOTICE re: Joint Fifth Notice of Discovery and Settlement by Jennifer Kupiszewski, Margaret Tinsley . (Finch, Aaron) (Entered: 09/12/2017)
359 NOTICE re: Intent to Serve Subpoena on Rite of Passage, Inc. by Jennifer Kupiszewski, Margaret Tinsley . (Finch, Aaron) (Entered: 09/13/2017)

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 38 of 44

09/18/2017 09/29/2017 09/29/2017 09/30/2017
10/13/2017 10/17/2017 10/17/2017 10/20/2017
10/24/2017 10/24/2017 10/24/2017 10/24/2017
10/31/2017 10/31/2017
11/01/2017 11/17/2017 11/20/2017

360 NOTICE of Service of Discovery filed by Gregory McKay. (Quigley, Daniel) (Entered: 09/18/2017)
361 NOTICE of Service of Discovery filed by Jennifer Kupiszewski, Margaret Tinsley. (Finch, Aaron) (Entered: 09/29/2017)
362 NOTICE of Service of Discovery filed by Gregory McKay. (Quigley, Daniel) (Entered: 09/29/2017)
363 ORDER − IT IS ORDERED Named Plaintiffs' motion for class certification (Doc. 234 ) is GRANTED in part. The Court certifies the General Class, the Non−Kinship Subclass, and the Medicaid Subclass. IT IS FURTHER ORDERED Named Plaintiffs B.K., by her next friend Margaret Tinsley, and B.T., by his next friend Jennifer Kupiswzewski, are appointed as Class Representatives for the General Class, the Non−Kinship Subclass, and the Medicaid Subclass. IT IS FURTHER ORDERED Named Plaintiffs' request to appoint Perkins Coie LLP, Arizona Center for Law in the Public Interest, and Children's Rights, Inc. as Class Counsel is GRANTED. (See document for full details). Signed by Senior Judge Roslyn O Silver on 9/29/17. (LAD) (Entered: 10/02/2017)
364 Joint MOTION to Amend/Correct 318 Order, Set Deadlines in Third Amended Scheduling Order by Thomas Betlach. (Attachments: # 1 Text of Proposed Order)(Johnston, Logan) (Entered: 10/13/2017)
365 USCA Case Number re: Petition for Permission to Appeal, Ninth Circuit Case number 17−80211. (DXD) (Entered: 10/17/2017)
366 USCA Case Number re: Petition for Permission to Appeal, Ninth Circuit Case number 17−80212. (DXD) (Entered: 10/17/2017)
367 FOURTH SCHEDULING ORDER − IT IS ORDERED the Parties' Joint Motion to Amend the Third Amended Scheduling Order, (Doc. 364 ), is GRANTED. Dispositive motions due by 4/18/2018. Proposed Pretrial Order due by 6/29/2018. (See document for further details). Signed by Senior Judge Roslyn O Silver on 10/20/17. (LAD) (Entered: 10/20/2017)
368 NOTICE of Service of Discovery filed by Thomas J Betlach. (Struck, Daniel) (Entered: 10/24/2017)
369 NOTICE of Attorney Withdrawal Joshua R. Zimmerman filed by Gary N Lento. (Lento, Gary) (Entered: 10/24/2017)
370 NOTICE re: Ex Parte Application to Withdraw by Gregory McKay . (Attachments: # 1 Text of Proposed Order Order)(Lento, Gary) (Entered: 10/24/2017)
371 * Corrected Ex Parte MOTION (Application) to Withdraw as Attorney by Gregory McKay . (Attachments: # 1 Text of Proposed Order Order)(Lento, Gary) * Document not in compliance with LRCiv 7.1(c), modified to correct event; attorney noticed on 10/25/2017 (LAD). (Entered: 10/24/2017)
372 MOTION to Seal Document by Jennifer Kupiszewski, Margaret Tinsley. (Attachments: # 1 Text of Proposed Order)(Finch, Aaron) (Entered: 10/31/2017)
373 ***FILED at (Doc. 379 )−−SEALED LODGED Proposed Appendix A of Protective Order Agreement re: 372 MOTION to Seal Document . Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Jennifer Kupiszewski, Margaret Tinsley. (Finch, Aaron) Modified on 12/8/2017 (ATD). (Entered: 10/31/2017)
374 NOTICE of Service of Discovery filed by Thomas J Betlach. (Struck, Daniel) (Entered: 11/01/2017)
375 STATEMENT of Joint Statement of Dispute Regarding Production of Communications Between Plaintiffs' Counsel And The Media by Defendants Charles Flanagan, Gregory McKay. (Albracht−Crogan, Cynthia) (Entered: 11/17/2017)
376 ORDER re: 375 − IT IS ORDERED Defendant's request for litigation−related communications between Plaintiffs' counsel, the media, and ACF is DENIED. (See document for further details). Signed by Senior Judge Roslyn O Silver on 11/20/17. (LAD) (Entered: 11/20/2017)

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 39 of 44

12/06/2017 12/08/2017
12/08/2017 12/08/2017
12/11/2017 12/19/2017 12/19/2017 12/20/2017 12/20/2017 12/27/2017 12/27/2017 12/28/2017
01/03/2018 01/04/2018
01/05/2018 01/05/2018

377 NOTICE of Service of Discovery filed by Jennifer Kupiszewski, Margaret Tinsley. (Finch, Aaron) (Entered: 12/06/2017)
378 ORDER granting Plaintiff's 372 Motion to Seal. FURTHER ORDERED the Clerk of Court shall file Proposed Appendix A of Protective Order Agreement, (lodged at Doc. 373 ), under seal. FURTHER ORDERED the sealed document will not be provided to Defendants at this time. Plaintiffs will make all required disclosures to counsel for Defendants in this matter on December 5, 2017, as required under the Court's 367 Fourth Amended Rule 16 Scheduling Order. Signed by Senior Judge Roslyn O Silver on 12/7/2017. (ATD) (Entered: 12/08/2017)
379 SEALED APPENDIX A to the 104 Protective Order by Jennifer Kupiszewski, Margaret Tinsley. (ATD) (Entered: 12/08/2017)
380 ORDER granting 371 Ex Parte Motion (Application). The Arizona Attorney General's Office, including but not limited to, Gary N. Lento, Joshua R. Zimmerman, Wendy Jacobsen Harrison, and all other Arizona Attorneys General, are withdrawn as counsel of record for Defendant Gregory McKay, in his official capacity as the Director of the Arizona Department of Child Safety in this matter. Signed by Senior Judge Roslyn O Silver on 12/7/17. (LAD) (Entered: 12/08/2017)
381 NOTICE of Service of Discovery filed by Thomas J Betlach. (Struck, Daniel) (Entered: 12/11/2017)
382 ORDER of USCA granting the petition for permission to appeal the district court's September 30, 2017 order granting class action certification, re 17−80211. (LSP) (Entered: 12/19/2017)
383 ORDER of USCA granting the petition for permission to appeal the district courts September 30, 2017 order granting class action certification, re 17−80212. (LSP) (Entered: 12/19/2017)
384 USCA Case Number re: Petition for Permission to Appeal, Ninth Circuit Case number 17−17501. (SLQ) (Entered: 12/20/2017)
385 USCA Case Number re: Petition for Permission to Appeal, Ninth Circuit Case number 17−17502. (SLQ) (Entered: 12/20/2017)
Appeal to 9th Circuit Court of Appeals Fee Received: $ 505.00 receipt number 0970−14997800, re: 17−17501 ONLY. (Acedo, Nicholas) Modified on 12/27/2017 (LSP). (Entered: 12/27/2017)
Appeal to 9th Circuit Court of Appeals Fee Received: $ 505.00 receipt number 0970−14999933, re: 17−17502 ONLY. (Quigley, Daniel) Modified on 12/27/2017 (LSP). (Entered: 12/27/2017)
386 *SEALED Appendix A to Protective Order Agreement signed by Defendant Betlach's Expert to be disclosed 1/5/18 (see Doc. 378, p.1 a line 18 for permission to file under seal). Filed by Thomas J Betlach. (Struck, Daniel) *Modified from lodged to filed per Order 378 on 12/29/2017 (SCH). (Entered: 12/28/2017)
387 Joint MOTION to Stay All Proceedings Pursuant to Fed. R. Civ. P. 23(f) by Thomas J Betlach, Gregory McKay. (Quigley, Daniel) (Entered: 01/03/2018)
388 Additional Attachments to Main Document re: 387 Joint MOTION to Stay All Proceedings Pursuant to Fed. R. Civ. P. 23(f) by Defendants Thomas J Betlach, Gregory McKay. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Defendants' Joint Motion to Stay)(Quigley, Daniel) (Entered: 01/04/2018)
389 NOTICE of Service of Discovery filed by Thomas J Betlach. (Struck, Daniel) (Entered: 01/05/2018)
390 Plaintiffs have advised the Court that they oppose Defendants Joint Motion to Stay All Proceedings, (Doc. 387). Plaintiffs shall file a response to the motion no later than Friday, January 12, 2018. If Defendants wish to file a reply, they shall do so no later than Wednesday, January 17, 2018. The parties should continue to comply with all applicable deadlines while the motion to stay is being briefed. Ordered by Senior Judge Roslyn O. Silver on 01/05/2018. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (ROS, sg) (Entered: 01/05/2018)

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 40 of 44

01/08/2018 01/12/2018
01/17/2018 01/17/2018
01/18/2018 01/19/2018 01/25/2018 02/06/2018 02/06/2018 02/07/2018 02/07/2018
02/09/2018
02/09/2018 02/13/2018
02/18/2018 02/19/2018 02/21/2018

391 NOTICE of Service of Discovery filed by Gregory McKay. (Quigley, Daniel) (Entered: 01/08/2018)
392 RESPONSE in Opposition re: 387 Joint MOTION to Stay All Proceedings Pursuant to Fed. R. Civ. P. 23(f) and Request for an Order Enforcing the Scheduling Order filed by Jennifer Kupiszewski, Margaret Tinsley. (Attachments: # 1 Exhibit 1 − Report of Marci White, # 2 Exhibit 2 − Report of Lenette Azzi−Lessing, # 3 Exhibit 3 − Report of Steven Blatt, # 4 Exhibit 4 − Report of Paul Zurek, # 5 Exhibit 5 − Report of Arlene Happach, # 6 Exhibit 6 − Defendants' Affirmative Expert Witness Disclosure Statement)(Finch, Aaron) (Entered: 01/12/2018)
393 NOTICE re: Filing Expert Reports by Thomas J Betlach . (Attachments: # 1 Exhibit 1−2)(Struck, Daniel) (Entered: 01/17/2018)
394 REPLY to Response to Motion re: 387 Joint MOTION to Stay All Proceedings Pursuant to Fed. R. Civ. P. 23(f) filed by Gregory McKay. (Attachments: # 1 Exhibit Exhibit 1 to Defendants Reply in Support of Their Joint Motion to Stay)(Koloseike, Lauren) (Entered: 01/17/2018)
395 NOTICE of Errata re: 394 Reply to Response to Motion by Defendant Gregory McKay.. (Attachments: # 1 Exhibit Exhibit 1 to Defendants Reply in Support of Their Joint Motion to Stay)(Quigley, Daniel) (Entered: 01/18/2018)
396 NOTICE of Service of Discovery filed by Thomas J Betlach. (Struck, Daniel) (Entered: 01/19/2018)
397 NOTICE of Service of Discovery filed by Thomas J Betlach. (Struck, Daniel) (Entered: 01/25/2018)
398 NOTICE OF ATTORNEY SUBSTITUTION: Daniel J. Adelman appearing for Margaret Tinsley. Attorney Timothy Michael Hogan terminated. . (Hogan, Timothy) (Entered: 02/06/2018)
399 NOTICE of Attorney Substitution by David Daniel Weinzweig. (Weinzweig, David) (Entered: 02/06/2018)
400 NOTICE of Service of Discovery filed by Jennifer Kupiszewski, Margaret Tinsley. (Finch, Aaron) (Entered: 02/07/2018)
401 NOTICE re: Updated Exhibits in the Report of Paul Zurek, Ph.D. by Jennifer Kupiszewski, Margaret Tinsley re: 392 Response in Opposition to Motion . (Attachments: # 1 Exhibit 1: Supplemental Exhibits to the Report of Paul Zurek, Ph.D.)(Finch, Aaron) (Entered: 02/07/2018)
402 NOTICE re: Notice of Filing Expert Reports by Gregory McKay . (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7)(Quigley, Daniel) (Entered: 02/09/2018)
403 NOTICE of Service of Discovery filed by Gregory McKay. (Attachments: # 1 Exhibit Exhibits)(Quigley, Daniel) (Entered: 02/09/2018)
404 ORDER denying without prejudice Defendants' 387 Motion to Stay. Defendants may renew their motion to stay these proceedings if this case proceeds to the point of final pretrial preparations without a ruling from the Ninth Circuit on Defendants' appeal of the class certification order. Signed by Senior Judge Roslyn O Silver on 2/13/18. (CLB) (Entered: 02/13/2018)
405 NOTICE OF ATTORNEY'S CHANGE OF ADDRESS/FIRM NAME by Logan T Johnston. (Johnston, Logan) (Entered: 02/18/2018)
406 NOTICE OF ATTORNEY'S CHANGE OF ADDRESS/FIRM NAME by Robert Lawrence Ellman. (Ellman, Robert) (Entered: 02/19/2018)
407 NOTICE re: Filing Rebuttal Expert Reports by Jennifer Kupiszewski, Margaret Tinsley . (Attachments: # 1 Exhibit 1− Rebuttal Expert Report of Lenette Azzi−Lessing, MSW, Ph.D., # 2 Exhibit 2− Rebuttal Expert Report of Steven D. Blatt, M.D., # 3 Exhibit 3− Rebuttal Expert Report of Arlene Happach, MA, MBA, # 4 Exhibit 4− Rebuttal Expert Report of Marci White, MSW)(Gerard, Daniele) (Entered:

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 41 of 44

02/21/2018 02/21/2018 02/21/2018 02/21/2018 02/22/2018 02/27/2018 06/04/2018
06/04/2018 09/24/2018 10/10/2018 10/23/2018 04/26/2019
06/12/2019 06/14/2019 06/20/2019 06/24/2019 06/25/2019 06/25/2019

02/21/2018)
408 NOTICE of Service of Discovery filed by Thomas J Betlach. (Struck, Daniel) (Entered: 02/21/2018)
409 NOTICE re: Intent to Serve Subpoena on Mercer Health & Benefits LLC by Jennifer Kupiszewski, Margaret Tinsley . (Gerard, Daniele) (Entered: 02/21/2018)
410 NOTICE re: Intent to Serve Subpoena on Mercer (US) Inc. by Jennifer Kupiszewski, Margaret Tinsley . (Gerard, Daniele) (Entered: 02/21/2018)
411 NOTICE re: Intent to Serve Expert Subpoenas by Jennifer Kupiszewski, Margaret Tinsley . (Gerard, Daniele) (Entered: 02/21/2018)
Remark: Pro hac vice motion granted for Ira Lustbader on behalf of plaintiffs. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 02/22/2018)
412 USCA ORDER (re 17−17501 and 17−17502) granting appellants' motion for a stay of district court proceedings pending appeal. (See document for full details). (LAD) (Entered: 02/27/2018)
413 * NOTICE of Appearance of Plaintiff and MOTION to Adjoin by H.B. (LAD) (2 pages, filed as pro se) (Additional attachment(s) added on 6/5/2018: # 1 Envelope (Under Seal)) (LAD). * Modified to add text on 6/5/2018 (LAD). (Entered: 06/05/2018)
414 MOTION for Leave to File Supplemental Complaint; Certification of Subclass by H.B. (LAD) (2 pages, filed as pro se) (Additional attachment(s) added on 6/5/2018: # 1 Envelope (Under Seal)) (LAD). (Entered: 06/05/2018)
415 ORDER denying 413 Notice of Appearance and Motion to Adjoin; denying 414 Motion for Leave to File a Supplemental Complaint. Signed by Senior Judge Roslyn O Silver on 9/24/18. (CLB) (Entered: 09/24/2018)
416 Mail Returned as Undeliverable. Mail sent to H.B.. Reason for return: Return to Sender, Not Deliverable As Addressed, Unable to Forward. Document number 415 . (LAD) (Entered: 10/11/2018)
417 Mail Returned as Undeliverable. Mail sent to H.B.. Reason for return: Return to Sender, Not Deliverable as Addressed, Unable to Forward. Document number 415 . (LAD) (Entered: 10/23/2018)
418 *USCA Advance Decision (17−17501 and 17−17502) re: 382 and 383 USCA Orders which granted the petition for permission to appeal 363 Order affirming in part, vacating in part and remanding. (LAD) *Modified to add text on 4/26/2019 (LAD). *Modified text on 6/12/2019 (DXD). (Entered: 04/26/2019)
419 ORDER no later than June 20, 2019, the parties shall confer and file a joint statement as outlined above. Signed by Senior Judge Roslyn O Silver on 6/12/19. (CLB) (Entered: 06/12/2019)
420 ORDER of USCA Lifting Stay on District Court Proceedings re: 17−17501 and 17−17502 as to 382 and 383 USCA Orders which granted the petition for permission to appeal 363 Order. (DXD) (Entered: 06/14/2019)
421 STATEMENT of Joint Status Report by Plaintiffs Jennifer Kupiszewski, Margaret Tinsley. (Attachments: # 1 Exhibit Plaintiffs' Exhibit A)(Finch, Aaron) (Entered: 06/20/2019)
422 RESPONSE re: 421 Statement by Defendant Gregory McKay. (Ellman, Robert) (Entered: 06/24/2019)
423 REPLY re: 422 Response Reply to Defendant McKay's Response to Joint Status Report by Plaintiffs Jennifer Kupiszewski, Margaret Tinsley. (Finch, Aaron) (Entered: 06/25/2019)
424 Mail Returned as Undeliverable. Mail sent to H.B.. Reason for return: Return to Sender−Unknown Person. Document number 419. (GMP) (Entered: 06/26/2019)

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 42 of 44

07/18/2019
07/24/2019 07/24/2019 07/30/2019 07/30/2019
07/31/2019 08/02/2019 08/05/2019 08/09/2019 08/13/2019 08/14/2019 08/14/2019 08/14/2019 08/15/2019 08/15/2019 08/19/2019

425 ORDER − Plaintiffs shall file their class recertification motion no later than July 31, 2019. The parties shall provide an initial supplementation of all prior discovery responses no later than September 27, 2019. The parties shall confer immediately regarding which discovery responses must be supplemented by that date. If the parties cannot agree, no later than August 2, 2019, they must file a joint statement identifying each discovery response where the parties disagree on whether supplementation is necessary. Dispositive and Daubert motions shall be filed no later than January 10, 2020. (See document for full details). Signed by Senior Judge Roslyn O Silver on 2/17/19. (LAD) (Entered: 07/18/2019)
426 USCA Mandate (17−17501 and 17−17502) re: 382 and 383 USCA Orders which granted the petition for permission to appeal 363 Order affirming in part, vacating in part and remanding. (Attachments: # 1 Opinion) (LAD) (Entered: 07/24/2019)
427 Additional Attachments to Main Document − 7/15/19 Order of USCA re: 426 USCA Mandate. (LAD) (Entered: 07/24/2019)
428 MOTION for Leave to File Excess Pages by Jennifer Kupiszewski, Margaret Tinsley. (Attachments: # 1 Text of Proposed Order)(Finch, Aaron) (Entered: 07/30/2019)
429 ORDER granting Plaintiffs' 428 Unopposed Motion for Leave to Exceed Page Limit. Plaintiffs shall have up to 19 pages for their Motion and Memorandum of Points and Authorities in Support of Certification of the Medicaid Subclass. Ordered by Senior Judge Roslyn O. Silver on 7/30/2019. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (CLB) (Entered: 07/30/2019)
430 MOTION to Certify Class and Memorandum of Points and Authorities in Support of Certification of the Medicaid Subclass by Jennifer Kupiszewski, Margaret Tinsley. (Attachments: # 1 Text of Proposed Order)(Finch, Aaron) (Entered: 07/31/2019)
431 STATEMENT of Joint Statement Re: Supplemental Discovery by Plaintiffs Jennifer Kupiszewski, Margaret Tinsley. (Gerard, Daniele) (Entered: 08/02/2019)
432 Mail Returned as Undeliverable. Mail sent to H.B.. Reason for return: not in custody. Document number 425 . (EJA) (Entered: 08/07/2019)
433 ORDER re: 431 Discovery Dispute: IT IS ORDERED Defendants must provide the supplementation, and bear the costs and fees, as outlined above. (See order for details) Signed by Senior Judge Roslyn O Silver on 8/8/19. (CLB) (Entered: 08/09/2019)
434 MOTION for Leave to File Excess Pages for Motion for Leave to Exceed Page Limit by Thomas J Betlach. (Attachments: # 1 Text of Proposed Order)(Johnston, Logan) (Entered: 08/13/2019)
435 RESPONSE to Motion re: 430 MOTION to Certify Class and Memorandum of Points and Authorities in Support of Certification of the Medicaid Subclass filed by Thomas J Betlach. (Attachments: # 1 Exhibit Declaration of Andrea Bartles, # 2 Exhibit 2017 EQRO Report)(Johnston, Logan) (Entered: 08/14/2019)
436 MOTION to Seal Document Attachment 1 to Ex. A to Doc. 435 by Thomas J Betlach. (Johnston, Logan) (Entered: 08/14/2019)
437 *FILED at 454 * SEALED LODGED Proposed Attachment 1 to Exhibit A to Doc. 435 re: 436 MOTION to Seal Document Attachment 1 to Ex. A to Doc. 435. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Thomas J Betlach. (Johnston, Logan) Modified on 9/20/2019 (SLQ). (Entered: 08/14/2019)
438 ORDER granting Defendants' 434 Motion for Leave to Exceed Page Limit. Plaintiffs shall have up to 23 pages for their Response to Plaintiffs' Memorandum of Points and Authorities in Support of Certification of the Medicaid Subclass 430 . Signed by Senior Judge Roslyn O Silver on 8/14/19. (CLB) (Entered: 08/15/2019)
439 Additional Attachments to Main Document re: 436 MOTION to Seal Document Attachment 1 to Ex. A to Doc. 435 Proposed Order by Defendant Thomas J Betlach. (Johnston, Logan) (Entered: 08/15/2019)
440 Mail Returned as Undeliverable. Mail sent to H.B.. Reason for return: RT Sender. Document number 429 . (LAD) (Entered: 08/20/2019)

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 43 of 44

08/21/2019 08/30/2019 09/03/2019 09/04/2019 09/05/2019 09/06/2019 09/06/2019
09/06/2019 09/06/2019 09/06/2019 09/12/2019 09/13/2019 09/20/2019
09/20/2019 09/20/2019 09/27/2019 09/27/2019 09/27/2019

441 REPLY to Response to Motion re: 430 MOTION to Certify Class and Memorandum of Points and Authorities in Support of Certification of the Medicaid Subclass filed by Jennifer Kupiszewski, Margaret Tinsley. (Finch, Aaron) (Entered: 08/21/2019)
442 Mail Returned as Undeliverable. Mail sent to H.B.. Reason for return: Return to Sender, Not Deliverable as Addressed, Unable to Forward. Document number 438 . (LAD) (Entered: 09/04/2019)
444 Mail Returned as Undeliverable. Mail sent to H.B.. Reason for return: Return to Sender, Not Deliverable as Addressed, Unable to Forward. Document number 433 . (LAD) (Entered: 09/04/2019)
443 NOTICE re: of Name Change and Attorney Contact Information by Jami Snyder . (Keene, Dana) (Entered: 09/04/2019)
445 NOTICE of Service of Discovery filed by Jami Snyder. (Struck, Daniel) (Entered: 09/05/2019)
446 NOTICE of Deposition of Arizona Health Care Cost Containment System Regarding Mental Health Services Between September 2017 and the Present, filed by Jennifer Kupiszewski, Margaret Tinsley. (Persson, Stephanie) (Entered: 09/06/2019)
447 NOTICE of Deposition of Arizona Health Care Cost Containment System Regarding Physical and Dental Health Services Between September 2017 and the Present, filed by Jennifer Kupiszewski, Margaret Tinsley. (Persson, Stephanie) (Entered: 09/06/2019)
448 NOTICE of Deposition of Arizona Department of Child Safety Regarding Mental Health Services Between September 2017 and the Present, filed by Jennifer Kupiszewski, Margaret Tinsley. (Persson, Stephanie) (Entered: 09/06/2019)
449 NOTICE of Deposition of Arizona Department of Child Safety Regarding Child Welfare Between September 2017 and the Present, filed by Jennifer Kupiszewski, Margaret Tinsley. (Persson, Stephanie) (Entered: 09/06/2019)
450 NOTICE of Deposition of Arizona Department of Child Safety Regarding Physical and Dental Health Between September 2017 and the Present, filed by Jennifer Kupiszewski, Margaret Tinsley. (Persson, Stephanie) (Entered: 09/06/2019)
451 MOTION to Amend/Correct 425 Order, Set Deadlines (Unopposed) in Court's July 17, 2019 Scheduling Order by Jennifer Kupiszewski, Margaret Tinsley. (Attachments: # 1 Text of Proposed Order)(Finch, Aaron) (Entered: 09/12/2019)
452 NOTICE of Service of Discovery filed by Jami Snyder. (Keene, Dana) (Entered: 09/13/2019)
453 ORDER − IT IS ORDERED Defendants' Motion for Leave to File Exhibit Under Seal (Doc. 436 ) is GRANTED. IT IS FURTHER ORDERED the Clerk of the Court shall file under seal the Exhibit lodged at Doc. 437 . IT IS FURTHER ORDERED Plaintiffs' Unopposed Motion to Modify Court's July 17, 2019 Scheduling Order (Doc. 451 ) is GRANTED. The modified schedule is set forth in the order. (See document for complete details). Signed by Senior Judge Roslyn O Silver on 9/19/19. (SLQ) (Entered: 09/20/2019)
454 SEALED Exhibit re: 435 RESPONSE to Motion 430 by Thomas Betlach. (SLQ) (Entered: 09/20/2019)
455 NOTICE of Service of Discovery filed by Jami Snyder. (Keene, Dana) (Entered: 09/20/2019)
456 NOTICE of Service of Discovery filed by Jennifer Kupiszewski, Margaret Tinsley. (Finch, Aaron) (Entered: 09/27/2019)
457 NOTICE of Service of Discovery filed by Jami Snyder. (Keene, Dana) (Entered: 09/27/2019)
458 * NOTICE of Service of Discovery filed by Michael Faust. (Quigley, Daniel) * Modified to correct filer from Gregory McKay to Michael Faust on 9/30/2019 (LAD). (Entered: 09/27/2019)

Case: 2:15-cv-185 As of: 10/26/2019 08:49 AM MST 44 of 44

10/11/2019 10/11/2019 10/11/2019
10/24/2019

459 NOTICE of Appearance by Karen J Hartman−Tellez on behalf of Michael Faust. (Hartman−Tellez, Karen) (Entered: 10/11/2019)
460 NOTICE re: of Filing Protective Order Agreement by Michael Faust . (Attachments: # 1 Exhibit A)(Hartman−Tellez, Karen) (Entered: 10/11/2019)
461 ORDER granting Plaintiff's 430 motion to certify the Medicaid Subclass. The Court certifies the Medicaid Subclass as: All members of the General Class who are entitled to early and periodic screening, diagnostic, and treatment services under the federal Medicaid statute. IT IS FURTHER ORDERED B.K., by her next friend Margaret Tinsley, is appointed as Class Representative for the Medicaid Subclass. IT IS FURTHER ORDERED Perkins Coie LLP, Arizona Center for Law in the Public Interest, and Children's Rights, Inc. are appointed as Class Counsel for the Medicaid Subclass. Signed by Senior Judge Roslyn O Silver on 10/11/19. (CLB) (Entered: 10/11/2019)
462 NOTICE of Appearance by John Neil Stuart on behalf of Michael Faust. (Stuart, John) (Entered: 10/24/2019)