Case 2:11-cv-03312-JHS Document 3 Filed 06/03/11 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

____________________________________________

:

LYKEH MUMFORD, by and through his next friend, :

Katherina Mach; JOSEPH YALE, by and through :

his next friend, Pamela Zotynia; and KAREN LYN :

BLAKELY, by and through her mother and next

:

friend, Carol Blakely,

:

:

Plaintiffs,

:

:

v.

:

Civil Action No. 11-3312

:

DEPARTMENT OF PUBLIC WELFARE OF THE :

COMMONWEALTHOF PENNSYLVANIA; and :

GARY ALEXANDER, in his official capacity as :

Acting Secretary of Public Welfare of the

:

Commonwealth of Pennsylvania,

:

:

Defendants.

:

____________________________________________:

AMENDED COMPLAINT

I. Introduction

1. Plaintiffs are individuals with intellectual disabilities who are unnecessarily

institutionalized in psychiatri c hospitals, one of whom faces the imminent pros pect of

unnecessary commitment to a state mental retardation institution.

2. Plaintiffs are eligible for and enro lled in the Cons olidated Waiver, a

Medical Assistance home and c ommunity-based waiver administ ered by Defenda nt,

Pennsylvania Department of Public Welfare (DPW). The Consolidated Waiver provides

a full array of services for people with inte llectual disabilities, including residential and

non-residential supports that enable them to live in the community.

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3. Due to t heir changing needs, the services most recently provided to the Plaintiffs under the C onsolidated Waiver pr oved inadequate. This resulted in thei r psychiatric hospitalizations.
4. Although Plaintiffs' community service needs may have changed, the Consolidated Waiver offers the resources and services they now need to return to the community, and it is Defendants' responsibility to assure that they receive those services.
5. Defendants' policies and practices, however, have undermined the ability of Plaintiffs to receive the Consolidated Waiver services they need to promptly return to and remain in their communities.
6. Defendants' policies and practices resu lt in the unnecessa ry institutionalization of Plaintiffs in vi olation of the in tegration mandates of Tile II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. I n addition, Defendant Alexander's actions and inactions violate Title XIX of the Social Security Act, the federal Medical Assistance statute, by de nying Plaintiffs services to which they are entitled, failing to provi de those services with reason able promptness, and failing to protect their health and welfare, to make av ailable feasible alternatives, and to allow Plaintiffs to choose between institutional and community services. Plaintiffs seek declaratory and injunctive relief. II. Jurisdiction and Venue
7. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), and 1343(a)(4).
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8. Plaintiffs' claims are a uthorized by 42 U.S.C. §§ 1396 , 1983, 12133, 29 U.S.C. § 794, and 28 U.S.C. §§ 2201 and 2202.
9. Venue is appropriate in this district pursuant to 28 U.S.C. ' 1391(b) since a substantial part of the events that gave rise to these claims arose in this District. III. Parties
10. Plaintiff Lykeh Mumford is a 32-year -old resident of Phil adelphia, Pennsylvania who has an intellectual disability and a diagno sis of intermittent explosive disorder. Mr. M umford brings this lawsui t by and through his ne xt friend, Katherina Mach.
11. Plaintiff Joseph Yale is a 26-yea r-old resident of Luzerne County, Pennsylvania who has an intellectual d isability and has been diagnosed with schizoaffective disorder. Mr. Y ale brings th is lawsuit by and through his next friend, Pamela Zotynia.
12. Plaintiff Karen Lyn Blakely is a 42-y ear-old resident of P hiladelphia, Pennsylvania who has an intellectual disab ility and has been diag nosed with bipolar disorder. Ms. Blakel y brings this lawsuit by and through her mother and ne xt friend, Carol Blakely.
13. Defendant Department of Public Welfare is the Commonwealth agency that is responsible to provide services to Pe nnsylvanians with intellectual disabilities under the Mental Health and Mental Retardation Act of 1966, 50 P.S. § 4201(1). DPW als o arranges for and funds the provision of hom e and community-based mental retardatio n services so that people with intellectual disabilities can liv e in the communi ty with non-
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disabled persons. In addition, D PW is the single state agency that has responsibility to implement Pennsylvania's Medical Ass istance Program, including services provided to individuals with intellectual disabilities. 42 U.S.C. § 1396a(a)(5); 55 Pa. Code § 101.1(e).
14. Defendant Gary Alexander is the Acting Secretary of Public Welfare of the Commonwealth of Penns ylvania. Mr. Alexande r administers DPW and, as such, he is responsible to assure that Pennsylvania' s Medical Assistance program is operated in compliance with federal law. M r. Alexander is sued in his offici al capacity only for actions and omissions under color of state law. IV. Factual Background
A. Medical Assistance, HCBS Waivers, and the Consolidated Waiver 15. Title XIX of the Social Security Act (Title XIX), 42 U.S.C. § 1396 et seq., establishes the federal Medical Assistance program. 16. Medical Assistance is a cost-sharing arrangem ent under which t he federal government reimburses more than 50 percent of the expenditures incu rred by states that elect to furnish Medical Assistance to i ndividuals whose inc ome and resources are insufficient to cover the costs of their medical care. 17. The purpose of Medical Assistance is to provide medi cal services to eligible individuals, including services to help such individuals "attain or retain capability for independence or self-care ...." 42 U.S.C. § 1396. 18. States are not re quired to participate in the Medical Assistance program, but, if they choose to do s o, they must adopt a "state plan" that delineates the standards for determining eligibility and identifies the extent of Medical Assistance benefits.
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19. Pennsylvania has chosen to participat e in the Medical Assistance p rogram and has adopted a State Medical Assistance Plan.
20. Title XIX delineates the types of medica l services that can be funded under a state's Medical Assistance plan. See 42 U.S.C. § 1396d. Certain types of services are mandatory (e.g., inpatient hos pital services, physicia ns' services, and nursing facilities) and must be included in every state' s Medical Assistance plan. O ther types of services are optional ( e.g., hospice care, dental c are, and m edications), and ea ch state has discretion to choose whether to cover any particular optional service.
21. Many home and community -based services for people with dis abilities (such as habilitation for individuals with in tellectual disabilities, behavioral therapy, vocational supports, and c ommunity integration services) cannot be covered either as mandatory or optional services under Title XIX.
22. Title XIX permits a state to obtain a home and community-based services (HCBS) waiver from the Centers for Medicare and Medicaid Services (CMS). 42 U.S.C. § 1396n(c). HCBS waivers allow states to include in their stat e plans as "Medical Assistance" home and community-based services for individuals who, without such care, would require institutionalization in an intermed iate care facility for persons with mental retardation, nursing facilities, or hospitals.
23. HCBS waivers allow states to "w aive" three specific Title XIX requirements that apply t o mandatory and optional services -- the statewideness requirement (which requires the state to a ssure the availability of services in all geographic areas); the comparab ility requirement (which requir es the state to assure that
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all eligible persons have access to services in the same amount, duration, and scope); and income and resource rules. 42 U.S.C. § 1396n(c)(3).
24. By waiving the "comparability" requirement, states can limit the number of persons who will be allowed to participate in an HCBS waiver and can establish qualifications for eligibility based on age, di sability, or other criteria. Waiver of the comparability requirement also a llows states to provide Medi cal Assistance services to HCBS waiver participants in a different amount, duration, or scope than is available to other Medical Assistance participants.
25. A state can provide servic es in HCBS waivers that are not identified in Title XIX as approved mandat ory or optional services ( e.g., habilitation, respite care, home and vehicle modifications , and vocational supports). 42 U.S.C. § 1396n(c)(4)(B); 42 C.F.R. § 440.180.
26. In sum, the purpose of Title XIX 's HCBS waivers is to en courage states to provide services to assist individuals with disabilities to avoid ins titutionalization. 42 C.F.R. § 441.300. As long as community-based services vis-à-vis institutional services are cost-neutral, see 42 U.S.C. § 1396n(c)(2)(D), the prefer ence is to prov ide services in the community.
27. Pennsylvania has received approval from CMS to operate multiple HCBS Waivers, including the Consolidated Waiver for individuals with intellectual disabilities.
28. DPW, the single state agency designate d by Pennsylvania to administer its Medical Assistance program, has delegated res ponsibility to administer the Consolidate d Waiver to its Office of Developmental Programs (ODP).
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29. The Consolidated Waiver, establishe d in 1986, provi des services to Pennsylvanians with intellectual disabilities age 3 and older.
30. The Consolidated Waiver is the la rgest HCBS Waiver in the Commonwealth, both in terms of the number of individuals served and expenditures.
31. The Consolidated Waiver limits the nu mber of individuals who can receive services. Currently, the limit is approximately 17,000 persons.
32. The Consolidated Waiver is the pr imary funding s ource for communitybased mental retardation services in Pennsylvania.
33. The Consolidated Waiver offers a broad range of community-based mental retardation services, depe nding on t he participant=s needs, including: residential habilitation; home and community-based habilitation; licensed day habilitation; supported employment, prevocational, and transitional work services; behavioral supports; respite; homemaker/chore services; home and vehi cle accessibility adaptations; supports coordination; nursing services; and transportation.
34. DPW contracts with local Administra tive Entities (AEs) to perform operational and adm inistrative functions to implement the Conso lidated Waiver. In most instances, the AEs are the County Mental Health/Men tal Retardation (MH/MR) Programs.
35. Once an individual is approved to participate in the Cons olidated Waiver, he or she and his or her S upport Team (including involv ed family or guardian and Supports Coordinator) work to develop an Individual Support Plan (ISP) to i dentify the supports and services the individual needs to live in the community.
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36. The ISP, which must be approved by the AE, is th e document that authorizes the home and community-based services that the individual will receive under the Consolidated Waiver.
37. The services and supports identified in an ISP are based on the individual' s current clinical and medical needs assess ed pursuant to t he ODP-approved needs assessment instrument.
38. When an individual's service needs change (e.g., he or she needs a different type of service, m ore of a service, or less of a service), his or her ISP is am ended to reflect the change and the AE authorizes the new or different services.
39. For individuals who are enrolled in th e Consolidated Waiver, there is no monetary cap on services. Participants are en titled to receive any serv ices they need that are available under the Waiver and that are necessary for their health and welfare.
40. Consolidated Waiver par ticipants who are institutionalized are at risk of termination from the Waiver if they do not receive any services funded by the Waiver for a certain time period. Once a person is term inated from the Cons olidated Waiver, he or she must reapply and will be placed on a waiti ng list for services. Currently, there are thousands of Pennsylvanians on the "emergency" waiting list for Waiver services, and, as a result, a person who is terminated from th e Consolidated Waiver may have to wait years to be re-enrolled.
41. DPW's ODP has recently im plemented policies and practices that have the effect of denyi ng Consolidated Waiver par ticipants prompt access to the services they need for their health and welfare.
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42. ODP requires that its Central Office approve development of any new oneperson residential programs. Recently, how ever, multiple requests submitted to ODP's Central Office for de velopment of s uch programs have neither been a pproved nor disapproved, and no one at ODP has been willing to make such decisions. This has resulted in delays in approval for new programs.
43. DPW is not payi ng adequate r ates for ineligible expenses incurred in residential habilitation programs.
a. Title XIX does not allow federal re imbursement for room and board costs for residential programs (such as mortgage payments, home insurance, and food).
b. Historically, DPW has used state funds to allow residential providers to finance those expenses. These are called "ineligible expenses."
c. The ineligible expenses paid by the state, toget her with payment by residents of a portion of their Supplemental Se curity Income or Social Security disability benefits, had been sufficient to allow providers to fund those ineligible costs.
d. Recently, DPW expanded the definition of in eligible expenses, shifting many costs from those formerly eligib le for Medical Assi stance matching funds to ineligible costs. This in cludes, for example, the time spen t by staff in the residential home preparing meals.
e. ODP has not increased its payments to providers for the expanded ineligible expenses while it has reduced the providers' eligible expe nses to reflect the unavailability of Medical Assist ance matching funds to pay ce rtain previously eligible expenses.
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f. At the same time, ODP concluded that it was overpaying providers of residential habilitation services for ineligible expenses, proposing to reduce those costs by $27 million annually.
g. This proposed re duction, together with the already inade quate payments for ineligibl e costs, has m ade providers reluctant to de velop new residential programs.
44. Providers' hesitation in developing new programs has been compounded by the inadequate and unstable rates for program s that serve people with more challenging needs. On information and belief, ODP has im plemented a "high cost rate development policy" by which ODP determines rates for new residential programs that are "high cost." In addition, ODP has implemented an "outlier rate adjustment policy" by which ODP has reduced rates for exi sting high-cost programs after those rates were negotiated by providers. Neither of these policies is written, and ODP ha s not informed the providers or the public as to the standards that are us ed in setting high cost rates for new programs or reducing rates for existi ng high cost program s. Thes e policies have effectively narrowed rate ranges, m inimizing incentives for providers to serv e individuals with complex needs.
45. On information and belief, ODP has not increased its rates for residential habilitation services sufficient to cover the cost increases for those services for many years. As providers' costs go up and rates do not, pr oviders have made cuts in their programs. There are many fixed costs that th e providers cannot reduce. Providers also cannot reduce costs for direct car e staff that are required by the individuals' ISPs. As a
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result, many providers have cut clinical sta ff who had expertise to address clients in the providers' programs with chall enging behavioral issues. Clinical staff can be an important resource for direct care staff to consult when issues arise. As clinical staff have been terminated by providers due to costs constraints, direct care staff do not have access to the expertise they need to assist them to provide appropriate care for these individuals in their homes and communities.
46. People with intellectual disabilities wh o also have diag noses of mental illness, including the Plaintiffs, need serv ices for both of their disabilities. DPW separates the provision of these services between ODP and D PW's Office of Ment al Health and Substance Abuse Services (OMH SAS). There is a lack of coor dination between ODP and OMHSAS, resulting in barriers to accessing the services the Plaintiffs need from both systems.
B. Plaintiffs' Unmet Service Needs and Unnecessary Institutionalization 47. Plaintiff Lykeh Mumford has an in tellectual disability and has been diagnosed with pervasive developmental disorder and impulse control disorder. 48. Mr. Mumford has been enrolled in the Consolidated Waiver since 2008. 49. Until January 2011, Mr. Mu mford lived in the commu nity in the homes of his mother and grandm other. Mr. Mum ford received 14. 5 hours daily of home and community habilitation services during weekdays and 12 hours daily during weekends. 50. While living in the comm unity, Mr. Mum ford enjoyed participating i n community activities, including taking walks, swimming, bike riding, playing basketball,
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skating, and table hockey. He also enjoyed having morning coffee in the park and going to the community center and the library.
51. Mr. Mumford has ha d instances of aggressiveness toward his fam ily and self-injurious behaviors stemming from his disabilities.
52. Mr. Mumford's grandmother, due to her adva ncing age, can no longer support him in her home. Mr. Mumford's mother cannot handle his behavioral issues.
53. In January 2011, Mr. Mu mford was admitted to a private psychiatric hospital. Mr. Mumford's treating professionals at the psychiat ric hospital have determined that he no longer needs hospitalization, but he cannot return to live with his family.
54. On information and belief, DPW's Medical Assistance program has paid for Mr. Mumford's institutionalization at the psychiatric hospital.
55. The private psychiatric hospital has threatened to file a petition to involuntarily commit Mr. Mumf ord to a state mental retardation institution since his treating professionals at the h ospital concluded that he does not need psychiatri c treatment or medication.
56. It is medically necessary for Mr. Mu mford to receive ha bilitation services in a structured residential community placement, but DPW has failed to provide him with those services.
57. Mr. Mumford's AE currently provides 1:1 staff support for Mr. Mumford at the inpatient psychiatric hospital.
58. Mr. Mumford's AE, which contracts with DPW to arrange for services, has only sought to place Mr. Mumford in an exis ting program. Those efforts h ave proven
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unsuccessful because providers either are unabl e to meet his needs or because providers have no appropriate vacancies. As of mid-May 2011, DPW had not authorized the AE to request that provi ders develop a new progr am designed specifically to meet Mr. Mumford's unique needs.
59. Mr. Mumford is unnecessarily institu tionalized in a private psychiatric hospital and is at risk of extended unnecessa ry institutionalization in a state mental retardation institution. Mr. Mumford receives inadequate habilitation services at the psychiatric hospital, which are necessary due to his intellectual disability to assist him to acquire, retain, and im prove his com munication, personal adjustm ent, relationship development, socialization, and adaptive skills ne eded to enable him to live in the community. As a result of his unneces sary institutionalization, Mr. Mum ford is segregated from community life and is at ri sk of termination fro m the Cons olidated Waiver.
60. Plaintiff Joseph Yale has an intelle ctual disability and a diagnosis of schizoaffective disorder.
61. Mr. Yale has been enrolled in the Consolidated Waiver since May 2010. 62. Mr. Yale has been admitted to private and state psychiatric hospitals nearly 20 times. Hos pitalizations are not unus ual for individuals with dual diagnoses of intellectual disabilities and mental illness, particularly where the individual does not have access to an array of community supports and services. 63. Until August 2010, Mr. Ya le lived with family in the com munity in between his frequent hospitalizations.
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64. After he was enrolled in the Consolidated Waiver, Mr. Yale was placed in a residential habilitation program in an apartment with 1:1 st affing for approximately six weeks between August and October 2010.
65. In or ar ound October 2010, Mr. Yale was involuntarily committed to a private psychiatric hospital af ter incidents of self-injuri ous behavior, aggression, and property damage. This was not intended to be a permanent placement.
66. It is medically necessary for Mr. Ya le to receive residential habilitation services in the community in a highly structured setting.
67. On information and belief, DPW's Medical Assistance program has paid for Mr. Yale's institutionalization at the psychiatric hospital.
68. A provider, Resources fo r Human Development (RHD), has submitted a budget to serve Mr. Yale and the budget was reviewed by the former Deputy Secretary of ODP in March 2011. ODP reject ed the budget. A m eeting was held betwee n RHD and ODP staff on March 23, 2011. On April 8, 2011, RHD s ubmitted answers to ODP' s follow-up questions. RHD made several attempts since then to schedule another meeting to review its new budget subm issions for Mr. Yale. In May 2011, DPW informed RHD that it would have to complete new forms.
69. On or around June 2, 2011, ne gotiations between DP W and RH D had reached an impasse.
70. On or around June 2, 2011, the privat e psychiatric hospital where Mr. Yale had been institutionalized re ferred Mr. Yale for involu ntary commitment to Clarks
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Summit State Hospital, a state-operated psyc hiatric hospital, and a commitment hearing has been scheduled for June 10, 2011.
71. Mr. Yale does not need to be institutionalized in a state psychiatric hospital. He has been referred for co mmitment solely due to the breakdown in negotiations between DPW and RHD, not due to psychi atric symptoms that require commitment to a state psychiatric hospital.
72. RHD is still willing to provide commun ity residential habilitation s ervices to Mr. Yale if it is able to reach agreement with DPW on the rate.
73. While living in the community, Mr. Ya le enjoyed going to the movies, playing sports, weightlifting, and shopping.
74. Mr. Yale has been institutionalized an d segregated from society for more than seven months as he aw aits development of a reside ntial habilitation program. Mr. Yale receives no habilitation s ervices at th e private psychiatric hos pital, which are necessary due to his intellectual disability to assist him to acquire, retain, and improve his communication, personal a djustment, relationship development, socialization, and adaptive skills need ed to enable him to live in the community. He is at risk of institutionalization in a state psychiatric ho spital and termination from the Consolidated Waiver.
75. Plaintiff Karen Lyn Blakely has an intellectual disability and a diagnosis of bipolar disorder.
76. Ms. Blakely is enrolled in the Consolidated Waiver.
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77. Ms. Blakely received residential habilita tion services in Philadelphia until November 2009. At t hat time, Ms. Blakely's mother rem oved her from the residential habilitation program where she was living because staff scalded Ms. Blakely with hot water after a behavioral incident.
78. Ms. Blakely's mother took her hom e in Novem ber 2009. W hile she was living with her mother, Ms. Blakely received limited supports and services.
79. Beginning in February 2010, Ms. Blake ly's behavioral issues becam e increasingly difficult and she became physically aggressive toward her mother.
80. Ms. Blakely was admitted three times to private psychiatric hospitals in Philadelphia. The l ast admission was on June 29, 2010, and she has rem ained hospitalized since that date.
81. After her most recent admission to a psychiatric hospital, the staff took Ms. Blakely off all of he r medications to detoxify her system. This resulted in marked improvement in Ms. Blakely's functional abilities and behavior.
82. Ms. Blakely's treatment team at the ps ychiatric hospital has concl uded that she no longer needs inpatient psychiatric treatment.
83. Ms. Blakely's AE identified a reside ntial habilitation provider, Keystone, which was able and willing to serve her in the summer of 2010. I n May 2011, however, Keystone informed the AE that it could not serve Ms. Blakely be cause of an issue with rates. The AE attempted to work with DPW to resolve that issue, but the effort proved fruitless.
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84. A respite care provider rescinded its offer to provide community services to Ms. Blakely pending th e development of a permanent residential habilitation program after Keystone withdrew its offer to serve Ms. Blakely.
85. The psychiatric hospi tal has stated that it intends to file a petition to involuntarily commit Ms. Blakel y to a state-operated mental retardation institution since she no l onger needs psychiatric care. It wo uld be difficult for her mother to visit Ms. Blakely in such a facility due to their distance from her home.
86. Ms. Blakely is an energetic, talkative, engaging person who enjoys living in the community.
87. Ms. Blakely has been institutionalized and segregated from society for nearly a year while she awaits development of a residentia l habilitation program. Ms. Blakely receives no habilitation s ervices at the psychiatric hospital, which are necessary due to her intellectual disability to assist him to acquire, retain, and improve his communication, personal a djustment, relationship development, socialization, and adaptive skills needed to enable him to live in the commun ity. Ms. Blakely is at risk of institutionalization in a state mental reta rdation institution and termination from th e Consolidated Waiver.
C. Irreparable Harm 88. Plaintiffs have suffered irreparable ha rm as a result of Defenda nt's actions and inactions that give rise to this case. 89. Plaintiffs are unnecessarily institu tionalized and segregated from the community.
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90. Plaintiffs are at risk of losing thei r eligibility for the C onsolidated Waiver and their entitlement to community mental re tardation services available under that Waiver if they continue to be institutionalized. V. Claims
A. Count I -- Americans with Disabilities Act 91. Paragraphs 1 through 90 are incorporated by referenc e as if fully set forth herein. This Count is brought solely against Defendant Alexander in his official capacity for acts and omissions under color of state law. 92. Plaintiffs have intellectual disabilities, impairments that substantially limit one or more major life activ ities, including but not limite d to, caring for themselves, learning, concentrating, and thinking. As such, they are persons with disabilities protected by the Americans with Disabilities Act (ADA). 42 U.S.C. §§ 12102(1)(A), 12102(2)(A). 93. Plaintiffs are eligible for community -based mental retardation services, including services under the Co nsolidated Waiver, and, as such, are qualified persons with disabilities. 42 U.S.C. § 12131(2). 94. DPW, operated and adm inistered by Defendant Alexander, is a public entity subject to the requirements of Title II of the ADA. 42 U.S.C. § 12131(1)(B). 95. Defendant Alexander violat es the integration manda te of Title II of the ADA, 42 U.S.C. § 12132 and 28 C.F.R. § 35.130(d). Plaintiffs want community mental retardation services and the community is the most integrated setting appropriate to meet their needs. Yet, Defendant has failed to provide them with mental retardation services in
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the community. As a result, Plaintiffs ar e unnecessarily segregated in psyc hiatric institutions and are at risk of continue d unnecessary instituti onalization in those institutions or in state mental retardation institutions.
96. The provision of com munity residential habilitation services to Plaintiffs will not fundamentally alter Defe ndant's programs, services or activities. As enrollees in the Consolidated Waiver, Plaintiffs currently have an entitlement to those services. As such, providing them with thos e services will not result in displacement of others from services or their jumping ahead of others on a waiting list.
97. Defendant Alexander violates Tit le II of the ADA, 42 U.S.C. § 12132 and 28 C.F.R. § 35. 130(b)(3), by us ing methods of administration that subject Plaintiffs to discrimination through unnecessary segrega tion and institutionalization, including, but not limited to: (a) failing to streamline th e approval process for developm ent of new programs; (b) failing to develop a rate structur e that is sufficient a nd stable to enable providers to devel op new pr ograms; and (c) failing to effectively coor dinate mental health services for individu als with dual diagnoses of mental illness and mental retardation.
B. Count II -- Rehabilitation Act 98. Paragraphs 1 through 97 are incorporated by referenc e as if fully set forth herein. This Count is brought solely against Defendant DPW. 99. Plaintiffs have intellectual disabilities, impairments that substantially limit one or more major life activ ities, including but not limite d to, caring for themselves,
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learning, concentrating, and thinking. As such, they are persons with disabilities protected by Section 504 of the Rehabilitation Act. 29 U.S.C. § 705(20)(B).
100. Plaintiffs are eligible for community -based mental retardation services, including services under the Co nsolidated Waiver, and, as such, are qualified persons with disabilities pursuant to Section 504 of the Rehabilitation Act.
101. DPW is a recipient of federal financial assistance and, as such, is s ubject to the requirements of Section 504 of the RA. 29 U.S.C. § 794(b).
102. Defendant DPW violates the integra tion mandate of S ection 504 of t he RA, 29 U. S.C. § 794 and 28 C.F.R. § 41. 51(d). Pla intiffs want com munity mental retardation services and the community is the most integrated setting appropriate to meet their needs. Yet, DPW has failed to provide th em with mental retardation services in the community. As a result, Plaintiffs are unnecessarily segregated in psychiatric institutions and are at risk of continued unnecessary in stitutionalization in those institutions or in state mental retardation institutions.
103. The provision of com munity residential habilitation services to Plaintiffs will not fundamentally alter Defe ndant's programs, services or activities. As enrollees in the Consolidated Waiver, Plaintiffs currently have an entitlement to those services. As such, providing them with thos e services will not result in displacement of others from services or their jumping ahead of others on a waiting list.
104. Defendant DPW violates Section 504 of the RA, 29 U. S.C. § 794 and 28 C.F.R. § 41. 51(b)(3), by using methods of adm inistration that subject P laintiffs to discrimination through unnecessary segrega tion and institutionalization, including, but
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not limited to: (a) failing to streamline th e approval process for development of new programs; (b) failing to develop a rate structur e that is sufficient a nd stable to enable providers to devel op new pr ograms; and (c) failing to effectively coor dinate mental health services for individu als with dual diagnoses of mental illness and mental retardation.
C. Count III -- Title XIX: 42 U.S.C. §§ 1396a(a)(10)(A) and 1983 105. Paragraphs 1 through 104 are incorporated by reference as if fully set forth herein. This Count is brought solely against Defendant Alexander for acts and omissions in his official capacity under color of state law. 106. Under Title XIX, states that particip ate in the Medical Assistance program must make Medical Assistance benefits av ailable to eligible persons. 42 U.S.C. § 1396a(a)(10)(A). 107. "Medical Assistance" benefits include, at the opti on of the state, HCB S Waiver services. 42 U.S.C. § 1396n(c)(1). 108. Pennsylvania participates in the Medical Assistance program and has chosen in its State Plan to cover HCBS Wa iver services approved by CMS, including the Consolidated Waiver. 109. Plaintiffs are eligible for Medical Assistance benefits and are enrolled in the Consolidated Waiver. 110. Plaintiffs are entitled to receive all se rvices under the Consolidated Waiver which they need, including residential habilitation services.
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111. It is clinically and medically necessary for Plaintiffs to receive appropriate residential habilitation services. Defendant Alexander has failed to provide Plaintiffs with those services and, instead, they are unnecessarily institutionalized.
112. Defendant's policies and practices have impeded the prom pt provision of appropriate community services to Plaintiffs, including residential habilitation services.
113. Defendant's policies and practices ar e intended solely to reduc e expenditures for services provided to individuals, like Pl aintiffs, with complex needs, regardless of their clinical and medical needs.
114. Defendant has failed to assure that Pl aintiffs receive appropriate services under the Consolidated Waiver to enable them to live in the community.
115. Defendant Alexander's acts and om issions under color of state law violate 42 U.S.C. §§ 1396a(a)(10)(A) and 1983.
D. Count IV -- Title XIX: 42 U.S.C. §§ 1396a(a)(8) and 1983 116. Paragraphs 1 through 115 are incorporated by reference as if fully set forth herein. This Count is brought solely against Defendant Alexander for acts and omissions in his official capacity under color of state law. 117. Title XIX mandates that states which participate in the Medical Assistance program must "provide that all indi viduals wishing to make application for medical assistance under the plan shall have the opportunity to do so, and that all such assistanc e shall be f urnished with reasonable promptness to all eligible indivi duals." 42 U.S. C. § 1396a(a)(8).
22

Case 2:11-cv-03312-JHS Document 3 Filed 06/03/11 Page 23 of 26
118. Title XIX requires states to adopt time standards f or the provision of services to avoid unreasonable delays. In addition, Title XI X does not permit states to delay furnishing Medical Assistance due to th e state agency's administrative procedures. 42 C.F.R. § 435.930(a).
119. Defendant Alexander has established no timelines for the provi sion of residential habilitation services under the Consolidated Waiver.
120. Defendant Alexander has vi olated Plaintiffs' right to receive residential habilitation services under the Consolidated Waiver with r easonable promptness, as th e Plaintiffs have been institutionalized and aw aiting such community services for periods ranging from two to seven months with no end in sight.
121. Defendant Alexander's acts and om issions under color of state law violate 42 U.S.C. §§ 1396a(a)(8) and 1983.
E. Count V -- Title XIX: 42 U.S.C. §§ 1396n(c) and 1983 122. Paragraphs 1 through 121 are incorporated by reference as if fully set forth herein. This Count is brought solely against Defendant Alexander for acts and omissions in his official capacity under color of state law. 123. Title XIX requires that each HCBS Waiver must include "necessary safeguards (including adequate standards for pr ovider participation) ... to protect the health and welfare of individu als provided services under the [W]aiver ...." 42 U.S.C. § 1396n(c)(2)(A). This requires a state "to provide all people enrolled in the [W]aiver with the opportunity for access to a ll needed services covered by the [W]aiver and under t he Medicaid State plan. ... The opportunity for access pertains to all services available
23

Case 2:11-cv-03312-JHS Document 3 Filed 06/03/11 Page 24 of 26
under the [W]aiver that an enro llee is determined to need on the basis of an assessment and a written plan of care/support." CMS, Olmstead Update No. 4 (Jan. 10, 2001). "Once in the [W]aiver, an en rolled individual enjoys protection against arbitrary or inappropriate restrictions, and the State assume s an obligation to assure the individual's health and welfare." Id.
124. Plaintiff's health and welfare has been jeopardized by De fendant's implementation of the Consolid ated Waiver. As enrollees in the Consolidated Waiver, Plaintiffs are entitled to receive residen tial habilitation services , and Defendant has determined that they need those services. Yet, Defenda nt has i mposed arbitrary and inappropriate restrictions on access to those services, which has resulted in their inability to receive appropriate commun ity residential habilitation serv ices and their unnecessary institutionalization.
125. Title XIX also requires states to in form individuals eligible for HCBS Waiver services of their feasib le alternatives available under the Waiver so that they can choose both among s uch available services and between HCBS Waiver services and institutionalization. 42 U.S.C. § 1396n(c)(2)(C).
126. Defendant has violat ed Title XIX by failing to a llow Plaintiffs to choose among available feasible alternatives and to choose between Consolidat ed Waiver services and institutionalization. Defend ant's policies and practices have made community residential habilitation services e ffectively unavailable to Plaintiffs, forcing them to be institutionalized.
24

Case 2:11-cv-03312-JHS Document 3 Filed 06/03/11 Page 25 of 26

127. Defendant Alexander's acts and om issions under color of state law violate

42 U.S.C. §§ 1396n(c) and 1983.

VI. Relief Requested

128. Plaintiffs respectfully request that the Court:

a. retain jurisdiction over this action;

b. declare that Defendants' actions and inactions violate the AD A and

RA, Title XIX, and 42 U.S.C. § 1983;

c. issue appropriate injunctive relie f to enjoin Defendants from

continuing to violate Plainti ffs' rights under the ADA, RA, T itle XIX, and 42 U.S. C. §

1983, and to take appropriate steps to remedy those violations;

d. issue such other relief as m ay be just, equitable, and appr opriate,

including an award of reasonable attorneys' fees, litigation e xpenses, and c osts as

available pursuant to 42 U.S.C. §§ 1988 and 12205 and 29 U.S.C. § 794a(b).

Respectfully

submitted,

Dated: June 3, 2011
Disability Philadel 215-

By: /s/ Robert W. Meek Robert W. Meek PA 27870 Mark J. Murphy PA 38564 Robin Resnick PA 46980 Rights Network of PA 1315 Walnut Street, Suite 500 phia, PA 19107-4705 238-8070
Counsel for Plaintiffs
25

Case 2:11-cv-03312-JHS Document 3 Filed 06/03/11 Page 26 of 26
CERTIFICATE OF SERVICE
I, Robert W. Meek, hereby certify that tr ue and correct copi es of Plaintiffs'
Amended Complaint were served as follows on this 3rd day of June, 2011:
By First Class Mail, Postage Prepaid and By Email: Barry N. Kramer
Chief Deputy Attorney General Office of Attorney General
21 South 12th Street, 3rd Floor Philadelphia, PA 19107
By First Class Mail, Postage Prepaid and By Email: Kathleen A. Grogan
Senior Assistant Counsel Office of General Counsel Department of Public Welfare 3rd Floor West, Health & Welfare Building
Harrisburg, PA 17120
/s/ Robert W. Meek Robert W. Meek

 </s> Case 2:11-cv-03312-JHS Document 8 Filed 06/10/11 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT 
 FOR THE EASTERN DISTRICT OF PENNSYLVANIA 


LYKEH MUMFORD, et a1.
Plaintiffs,
Y.
DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, et al.
Defendants.

CIVIL ACTION
NO. 11-3312 Judge Joel H. Slomsky

STIPULATION AND ORDER FOR PRELIMINARY INJ1JNCTI01S:
AND NOW, this 10th day of June, 2011, pursuant to the Stipulation of me Parties, it is hereby ORDERED as follows: 1. Plaintiffs' Motion for a Temporary Restraining Order shall be withdravm. 2. Defendants shall take all necessary steps to prevent the transfer of Joseph Yale to
a state-operated psychiatric hospital for 90 days from the date of entry of this ORDER.
3. Defendants shall not terminate Plaintiff Yale from the Consolidated Waiver pending placement in an appropriate community-based program.

BY THE COURT:

lO/lO 39'i1d

9(;1£UL£1(; £S:£1 110(;/01/90

 </s> Case 2:11-cv-03312-JHS Document 16 Filed 10/18/11 Page 1 of 5 Case 2:11-cv-03312-JHS Document 15 Filed 10/05/11 Page 2_o_f6_ _

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVA

LYKEH MUMFORD, by and through his next friend, Katherina Mach; JOSEPH YALE, by and through his next friend, Pamela Zotynia; and KAREN LYN BLAKELY, by and through her mother and next friend, Carol Blakely,

Plaintiffs,

v.

: Civil Action No. 11-3312

DEPARTMENT OF PUBLIC WELFARE OF THE CO:M:MONWEALTHOF PENNSYLVANIA; and GARY ALEXANDER, in his official capacity as Secretary of Public Welfare of the Commonwealth of : Pennsy lvania,

Defendants.

SETTLEMENT AGREEMENT I. Introduction
WHEREAS Plaintiffs filed this lawsuit that alleged that Defendants violated the Americans with Disabilities Act, Rehabilitation Act, and Title XIX of the Social Security Act by failing to provide Plaintiffs with appropriate residential habilitation services that resulted in their institutionalization in psychiatric hospitals;
WHEREAS Plaintiffs filed a Motion for a Temporary Restraining Order and Preliminary Injunction in June 2011 to require Defendants to provide them with

Case 2:11-cv-03312-JHS Document 16 Filed 10/18/11 Page 2 of 5 Case 2:11-cv-03312-.JHS Document 15 Filed 10/05/11 Page 3 of 6
appropriate residential habilitation services and to bar their commitment to state institutions;
WHEREAS Plaintiffs Mumford and Yale have been placed in residential habilitation programs;
WHEREAS, a provider, Keystone Human Services (Keystone)~ has assured Defendants that it is developing a residential habilitation program for Plaintiff Blakely and it is anticipated that she will be discharged from the psychiatric hospital to that program no later than January 15,2012;
WHEREAS Defendants deny all liability; WHEREAS the parties desire to resolve this matter amicably; NOW, THEREFORE, Plaintiffs and Defendants enter into this Settlement Agreement. II. Defendants' Obligations 1. Defendants will assure that Plaintiff Blakely is discharged to an appropriate residential habilitation program provided by Keystone no later than January 15,2012. 2. Defendants will maintain ongoing contact with Keystone Human Services prior to Plaintiff Blakely's discharge to assure that Keystone is working diligently to develop the residential program for Plaintiff Blakely in a timely fashion. Defendants will promptly notify Plaintiffs' counsel if any impediments, obstacles~ or barriers arise that may delay Plaintiff Blakely's discharge from the psychiatric hospital.
2 


Case 2:11-cv-03312-JHS Document 16 Filed 10/18/11 Page 3 of 5 Case 2:11-cv-03312-JHS Document 15 Filed 10/05/11 Page 4 of 6
3. Defendants will not accept Plaintiff Blakely for admission to a stateoperated intermediate care facility for persons with mental retardation and will oppose any efforts by third-parties to involuntarily commit Plaintiff Blakely to a state-operated or private intermediate care facility for persons with mental retardation.
4. Defendants will oppose any efforts by third-parties to involuntarily commit Plaintiff Blakely to a psychiatric hospital unless the parties have first explored alternatives to commitment to a psychiatric hospital and DPW treating professionals determine that she meets the standard for involuntary commitment pursuant to the Mental Health Procedures Act.
5. Defendants will inform Keystone that it is responsible to communicate with Plaintiff Blakely's mother, her Administrative Entity, and designated DPW staff before it initiates any effort to involuntarily commit Plaintiff Blakely to a psychiatric hospital or mental retardation facility.
6. Defendants will not terminate or disenroll Plaintiff Blakely from the Consolidated Waiver. IlL Jurisdiction, Approval, Enforcement, Reinstatement, and Attorneys' Fees
1. The parties will jointly request that the District Court approve this Settlement Agreement and retain continuing jurisdiction. If the District Court declines this request, this Agreement will be null and void and the matter will be reinstated by the District Court for appropriate resolution.
2. The Settlement Agreement is not nor is it to be construed as a consent
decree. Plaintiffs may not seek a remedy of contempt of court for any violation of the
3 


Case 2:11-cv-03312-JHS Document 16 Filed 10/18/11 Page 4 of 5 Case 2:11-cv-03312-JHS Document 15 Filed 10/05/11 Page 5 of 6
Agreement. Plaintiffs, however, may file a motion for specific performance to enforce Paragraphs II.2 through II.6 of the Agreement at any time until this case is dismissed.
3. If Plaintiff Blakely is not discharged to an appropriate residential habilitation program by January 15,2012 andlor does not remain in that placement for at least thirty (30) days after her discharge, this case will be reinstated by the District Court for appropriate resolution.
4. If Plaintiff Blakely is discharged to an appropriate residential habilitation program by January 15, 2012 and remains in that placement for at least thirty (30) days after her discharge, the parties will file a Stipulation of Dismissal pursuant to Federal Rule of Civil Procedure 41(a)(l)(A)(ii) by February 29, 2012 to dismiss all claims by all Plaintiffs against all Defendants.
5. Defendants will pay to Plaintiffs' counsel, the Disability Rights Network of Pennsylvania, the sum of $25,000.00 for attorneys' fees, litigation expenses, and costs no later than thirty (30) days after the Court dismisses this matter.
6. If this case is reinstated pursuant to Paragraph IlI.3 of this Agreement, Plaintiffs may petition the District Court for payment of attorneys' fees, litigation expenses, and costs incurred since the inception of this litigation, provided, however, that Plaintiffs will reduce their request by the sum of $25,000 to reflect the payment made pursuant to this Agreement. Nothing in this Paragraph should be construed to entitle Plaintiffs to recovery of attorneys' fees, litigation expenses, and costs.
4 


Case 2:11-cv-03312-JHS Document 16 Filed 10/18/11 Page 5 of 5 Case 2: 11-cv-03312-JHS Document 15 Filed 10/05/11 Page 6 of 6

/J
Dated: October -? ,2012

By:
Disability Rights Network of Pennsylvania 1315 Walnut Street, Suite 500 Philadelphia, PA 19107-4705 (215) 238-8070
Counsel for Plaintiffs

Dated: October'1 2012

By: Barry N. Kramer Chief Deputy Attorney General Office of Attorney General 21 South 12th Street, 3rd Floor Philadelphia, PA 19107-3603 (215) 560-1581
Counsel for Defendants

APPROVED: A-I'ID J() ote i)(;""f!.E"]) : o c...-h9 be-r- I 8'1 '"?-P II

5 


 </s> Case 2:11-cv-03312-JHS Document 4 Filed 06/09/11 Page 1 of 35

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

____________________________________________

:

LYKEH MUMFORD, by and through his next friend, :

Katherina Mach; JOSEPH YALE, by and through :

his next friend, Pamela Zotynia; and KAREN LYN :

BLAKELY, by and through her mother and next

:

friend, Carol Blakely,

:

:

Plaintiffs,

:

:

v.

: Civil Action No. 11-3312

:

DEPARTMENT OF PUBLIC WELFARE OF THE :

COMMONWEALTHOF PENNSYLVANIA; and :

GARY ALEXANDER, in his official capacity as :

Acting Secretary of Public Welfare of the

:

Commonwealth of Pennsylvania,

:

:

Defendants.

:

____________________________________________:

PLAINTIFFS' MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Pursuant to Federal R ule of Civil Procedure 65, Plaintiffs, through their counsel,

submit this Motion for a Temporary Restrain ing Order and Pr eliminary Injunction.

Plaintiffs initially seek a temporary restra ining order to require Defendants to take

appropriate steps to p revent the commitment of Plaintiffs Yale and Bla kely to state-

operated institutions and not to terminate Plaintiffs from the C onsolidated Waiver

program. Plaintiffs then seek a prelimin ary injunction to enjoin Defendant to take

immediate steps to assure that all Plaintiffs receive clin ically appropriate community

residential habilitation services to which they are entitled. In support of this Motion,

Case 2:11-cv-03312-JHS Document 4 Filed 06/09/11 Page 2 of 35

Plaintiffs submit the accom panying Memorandum of Law and Exhibits, whic h are incorporated by reference as if fully set forth herein.

Respectfully

submitted,

Dated: June 9, 2011
Disability Philadel (215)

By: /s/ Robert W. Meek Robert W. Meek PA 27870 Mark J. Murphy PA 38564 Robin Resnick PA 46980 Rights Network of PA 1315 Walnut Street, Suite 500 phia, PA 19107-4705 238-8070
Counsel for Plaintiffs

2

Case 2:11-cv-03312-JHS Document 4 Filed 06/09/11 Page 3 of 35

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

____________________________________________

:

LYKEH MUMFORD, by and through his next friend, :

Katherina Mach; JOSEPH YALE, by and through :

his next friend, Pamela Zotynia; and KAREN LYN :

BLAKELY, by and through her mother and next

:

friend, Carol Blakely,

:

:

Plaintiffs,

:

:

v.

:

:

DEPARTMENT OF PUBLIC WELFARE OF THE :

COMMONWEALTHOF PENNSYLVANIA; and :

GARY ALEXANDER, in his official capacity as :

Acting Secretary of Public Welfare of the

:

Commonwealth of Pennsylvania,

:

:

Defendants.

:

____________________________________________:

Civil Action No. 11-3312

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' MOTION FOR A TEMPORARY RESTRAINING
ORDER AND PRELIMINARY INJUNCTION
Plaintiffs, through their counsel, submit this Memorandum of Law in support of
their Motion for a Te mporary Restraining Order and Prelim inary Injunction to enjoin
Defendant's violations of the Americans w ith Disabilities Act, Rehabilitation Act, and
Title XIX of the Social Security Act. As described below, Plain tiffs satisfy all the
prerequisites for issuance of such injunctive relief.

Case 2:11-cv-03312-JHS Document 4 Filed 06/09/11 Page 4 of 35
FACTUAL BACKGROUND A. Defendants' Limitations on Access to Residential Habilitation
Services Under the Medical Assistance Consolidated Waiver. Pennsylvania participates in the joint federal-state Medical Assistance progra m under Title XIX of the Social Security Act (Title XIX), 42 U.S.C. § 1396 et seq. See Pennsylvania v. United States , No. 10-2840, 2011 W L 991402 at *1 (3d Cir. Mar. 22, 2011) (not for publication). Th e federal governm ent pays m ore than 50 percent of the costs of services furnis hed by Pennsylvania under Title XIX. See Pennsylvania Dep't of Public Welfare v. U.S. Dep' t of Health & Human Ser vices, Civil Action N o. 1:08-CV791, 2010 WL 1390835 at *1 n.2 (M.D. Pa. Mar. 31, 2010). Under Title XIX, certain delineated services are mandatory (e.g., inpatient hospital services, physicians' services, and nursing fa cilities) while other delineated services are "optional" (e.g., dental care and medications) so that the state may, but is not required, t o provide them to Medical Assista nce recipients. See Pennsylvania Pharm acists Ass'n v. Houstoun, 283 F.3d 531, 533 (3d Cir.) (en banc), cert. denied, 537 U.S. 821 (2002); Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1178 (10th Cir. 2003). Title XIX also permits a state to obtai n a home and community-based services (HCBS) waiver from the federal Centers for Medicare and Medica id Services (CMS). 42 U.S. C. § 1396n(c). HCBS waivers "‘provide[] Medicaid reim bursement to States for the provision of community-based services to individuals wh o would otherwise requi re institutional care, upon a showing that the average annual cost of such services is not more than the annual cost of institutional services.’" Pennsylvania Dep't of Public Welfare, 2010 WL 1390835
2

Case 2:11-cv-03312-JHS Document 4 Filed 06/09/11 Page 5 of 35
at *1 (quoting Olmstead v. L.C., 527 U.S. 581, 601 (1999)). 1 Through HCBS waivers, states can access federal Medical Assistance funds for services that could not otherwise be funded under Title XIX. See Radaszewski, 381 F.3d at 601; McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 410 (5th Cir. 2004); 42 U.S.C. § 1396n(c)(4)(B); 42 C.F.R. §§ 440.180.
CMS has authorized Pennsylvania's De partment of Public Welfare (DPW), administered by Defendant Alexander, to operate multiple HCBS waivers. See DPW, Support Services Waivers, available at http://www.dpw.state.pa.us/foradults/healthcare medicalassistance/ supportserviceswaivers/index.htm. DPW' s Office of Developmental Programs (ODP) has responsibility to admini ster several of Pennsyl vania's HCBS Waivers that provide services to people wi th intellectual disabilities (formerly called mental retardation), including the "Consolidated Waiver." See DPW, Consolidated Waiver for Individuals with Mental Retardation, available at http://www.dpw.state.pa.us/ learnaboutdpw/waiverinformation/consolidatedwaiverforindividualswithmentalretardatio n/indexhtm; Consolidated Waiver at 10 (published in Developmental Programs Bulletin # 00-09-04, Att. C (July 1, 2009), available at http://services.dpw.state.pa.us/olddpw/ bulletinsearch.aspx?AttachmentId=4486 (excerpts submitted as Exh. A).

1 HCBS waivers allow the federal

government to waive certain Medical

Assistance requirements, including limiting the number of eligible persons a nd changing

financial eligibility criteria. See Radaszewski ex rel. R adaszewski v. Maram , 383 F.3d

599, 601 (7th Cir. 2004); 42 U.S.C. §§ 1396n(c)(3), (9).

3

Case 2:11-cv-03312-JHS Document 4 Filed 06/09/11 Page 6 of 35
The Consolidated Waiver authorizes DP W to provide an array of hom e and community-based services to i ndividuals with intellectual disa bilities over the age of 3. Consolidated Waiver at 15. These servic es include: licensed residential habilitation services (which provide up to 24-hour supe rvision and suppor ts to people in group homes, family living arrangem ents, and ot her small, licensed programs to assist them with self-care, communication, therapeutic activities, pers onal adjustment, relationship development, socialization, and use of community res ources); community habilitation (which assists partici pants to acquire, ma intain, or improve se lf-help, domestic, socialization, and adaptive skills necessary to live successfully in the community); respite care (which provides relief to caregivers); various types of voc ational programs and supports; nursing care and therapies; behavi oral supports; home and vehicle accessibility modifications; assistive technology; and transportation. Id. at 30-31. The Consolidate d Waiver can offer services to approximately 17,000 Pennsylvanians with intellectual disabilities. Id. at 18.
Once an individual is approved to participate in the Consolidat ed Waiver, he and his Support Team (including involved family members, guardian (if applicable), supports coordinator, and provider staff) work to develop an Individual Support Plan (ISP). See DPW, ODP Bulletin # 00-10-12, Att. 1 at 4 (July 1, 2010) (ISP Manual), available at http://services.dpw.state.pa.us/olddpw/bulletinsearch.aspx?AttachmentId=4638. The ISP identifies the specific types of services and supports the individual needs to live in the community based on t he assessment of the i ndividual's clinical and m edical needs using
4

Case 2:11-cv-03312-JHS Document 4 Filed 06/09/11 Page 7 of 35
an assessment tool de veloped by ODP. Id. The IS P must be reviewed at least annually and more frequently if the individual's needs change during the year. Id. at 62.
For individuals who are enrolled in the Consolidated Waiver, there is no monetary cap on services. Consolidated Waiver at 16. The individua l thus is entitled to receive any services he or she needs that are ava ilable under t he Waiver and are necessary for their health and welfare.
Individuals who are enrolled in the Consolidated Waiver are at risk of termination from the Waiver if they do not receive any Waiver-funded services for a certain period of time. See Consolidated Waiver at 26-27. Once a person is terminated from the Waiver, he or she must re-apply for services. Cu rrently, there are more than 5, 000 Pennsylvanians with intellectual disabilities on th e "emergency" waiting list for community services. See Pennsylvania Waiting List Campaign, available at http://www.pawaitinglist campaign.org/. As a result, a person w ho is term inated from the Cons olidated Waiver may have to wait years to be re-admitted for services.
Recently, DPW has implemente d policies and propos ed policies practices that impede the development of new residential ha bilitation programs, particularly those that serve one or two individuals who have complex medical or challenging behavioral health needs that may cost more to operate than other types of residential program s. See Mitchell Decl. ¶ 3 (Exh. B); McNelis Decl. ¶ 3 (Exh. I).
First, DPW has recently changed its policy th at results in a decrease in payments to residential habilitation provid ers for "ineligible costs." In eligible costs are costs for "room and board" that are not eligible for federal matchi ng funds under Title XIX.
5

Case 2:11-cv-03312-JHS Document 4 Filed 06/09/11 Page 8 of 35
Mitchell Decl. ¶ 4; McNelis Decl. ¶ 4. Thes e ineligible costs are paid by state funds plus a portion of the residents' Social Security disability or S upplemental Security Income benefits. Id. DPW recently expanded the definition of ineligible costs, excluding many costs previously eligible for federal matching funds, such as time sp ent by staff for meal preparation. Mitchell Decl. ¶ 4; McNelis Decl . ¶ 4. The end result is an increase in the ineligible costs for community residential programs. Mitchell Decl. ¶ 4; McNelis Decl. ¶ 4. However, ODP has not increased its payments to providers for the increased ineligible expenses while it has reduced payments for "eligible" expenses (that is expenses eligible for federal matching funds) to reflect the shift in expenses from eligible to ineligible. Mitchell Decl. ¶ 4; McNelis Decl. ¶ 4.
Second, DPW has proposed an overall reduction in current payments for ineligible expenses by $27 million annu ally based on an erroneous de termination that community residential habilitation providers had been overcharging for those expenses. Mitchell Decl. ¶ 5; McNelis Decl. ¶ 5. According to a survey of 63 provider s in May 2011, this reduction will cause the surveyed providers to be reimbursed $24 million less annually to cover their ineligible costs. Mitchell Decl. ¶ 5; McNelis Decl. ¶ 5; PAR Survey (Exh. C). ODP intends to implement this reduction by capping ineligible expenses paid to providers for residential habilitation services at $7,0 00 per person. Mitchell Decl. ¶ 5; McNelis Decl. ¶ 5. This sum, plus 72 percent of each resident's Supplemental Security Income or Social Security Disability benefits, will be the provider's only reimbursement for all room and board expenses listed on the ODP cost report. See Mitchell Decl. ¶ 5; McNelis Decl. ¶ 5. According to the provid er survey, the proposed re duction will decrease by more
6

Case 2:11-cv-03312-JHS Document 4 Filed 06/09/11 Page 9 of 35

than 50 percent the amount of ineligible costs that ODP reimburses to operate one-person programs. Mitchell Decl. ¶ 5; McNelis Decl. ¶ 5; PAR Survey. 2 Providers simply will

no longer be able to operate these programs. Mitchell Decl. ¶ 5; McNelis Decl. ¶ 5. As

for new program s, ODP's proposed reduction i n payments for inelig ible expenses has

made providers hesitant and, at worst, unwilling to develop those programs because their

costs are not likely to be covered. Mitchell Decl. ¶ 5; McNelis Decl. ¶ 5.

Third, ODP has im plemented a "high co st rate developm ent" policy a nd an

"outlier rate adjustment" policy. Mitchell De cl. ¶ 6; McNelis Decl. ¶ 6. These policies

result in rates that are both inadequate

and unst able for com munity residential

rehabilitation programs that serve people with complex need s. Mitchell Decl. ¶ 6 ;

McNelis Decl. ¶ 6. The "high cost" policy determines rates for new programs that have

higher costs while the "outlier" policy has been used to reduce rates for existing high-cost

programs after ODP has already negotiated the ra tes with providers. Mitchell Decl. ¶ 6;

McNelis Decl. ¶ 6. Neither of these polic ies is written, and OD P has not inf ormed

providers or the public as to the standards that it uses to determine rates for these

programs. Mitchell Decl. ¶ 6; McNelis Decl. ¶ 6. In practice, the policies have narrowed

the rate ranges and resulted in extreme disinc entives for provi ders to serve individua ls

with complex needs. Mitchell Decl. ¶ 6; McNelis Decl. ¶ 6.

2 The impact of the reduction is plainly evident in the case of Plaintiff Yale. Mr. Yale's prior provider, which served him in a one-person program, received $64.34 per day for "ineligible expenses" associated with that program , or $23,484 annually. See Yale ISP at 28 (Exh. D). DP W's proposal would require a pr ovider to offer him similar services while being reimbursed for room and board expenses at less than one-third of the prior rate.
7

Case 2:11-cv-03312-JHS Document 4 Filed 06/09/11 Page 10 of 35
Finally, ODP is not increasing its rate s for community residential habilitation services to keep pace with necessary cost increases. Mitchell Decl. ¶ 7; McNelis Decl. ¶ 7. As providers' costs increase, the rates do not. Id. The result is that providers have had to reduce their expenses. Mitchell Decl. ¶ 7; McNelis Decl. ¶ 7. Providers cannot reduce expenses for direct care staff that are mandate d by their clients' ISPs nor can they reduce fixed costs. Mitchell Decl. ¶ 7; McNelis Decl. ¶ 7. Instead, providers have t aken or plan to take serious measures, including reduction in clinical staff necessary to support people with complex needs, moving individuals, or not investing in necessary infrastructure or training. Mitchell Decl. ¶ 7; McNelis Decl. ¶ 7.
B. Defendants' Actions and Inactions Have Resulted in the Unnecessary Institutionalization of Plaintiffs. Plaintiff Lykeh Mumford is a 32-year-ol d Philadelphian who has an intellectual disability and been diag nosed with pervasive developmenta l disorder (a diagnosis on the autism spectrum), and impulse control disorder. Beilharz Decl. ¶ 2 (Exh. E). Enrolled in the Consolidated Waiver in 2008, Mr. Mumfor d lived in the homes of his mother or grandmother until January 2011. Id. ¶¶ 3-4. During that period, Mr. Mumford received 14.5 hours daily of home a nd community habilitation servi ces (non-residential) during weekdays and 12 hours daily on weekends. Id. ¶ 4. While living in the community, Mr. Mumford enjoyed ta king walks, swimming, bike riding, playi ng basketball, having morning coffee in the park, and going to the community center and library. Id. ¶ 5. Mr. Mumford's grandmother, due to her ad vancing age, became unable to support him in her hom e, particularly due to instan ces of aggressiveness to others and self-
8

Case 2:11-cv-03312-JHS Document 4 Filed 06/09/11 Page 11 of 35
injurious behaviors. Beilharz Decl. ¶ 6. His mother also was una ble to handle hi s behavioral issues. Id. ¶ 7.
In January 2011, Mr . Mumford was admitted to a pr ivate psychiatric hospital in Philadelphia. Beilharz Decl. ¶ 8. Mr. Mu mford's treating physicians at t hat facility eventually determined that he no longer needs inpatient psychiatric care, but his family is unwilling and unable to take him back home. Id. ¶¶ 9, 10. The hos pital, therefore, threatened to file a petition to involuntar ily commit Mr. Mumford to a state mental retardation institution pursuant to 50 P.S. § 4406. Id. ¶ 11.
According to treating professionals, Mr. Mumford can live in the community if he receives residential habilitation services in a structured setting. See Beilharz Decl. ¶ 12. DPW, however, has been unab le to identify a provider wh o is willing to offer those services to Mr. Mumford. See id. ¶ 13. Mr. Mumford's Administrative Entity (AE), with which DPW contracts to arrange for C onsolidated Waiver services, had only sought t o place Mr. Mumford in an existing residential habilitation program. Id. ¶ 14. Those efforts were uns uccessful as the providers e ither were unable to meet Mr. Mumford's needs or had no appropriate vacancies. Id.3 As a result, Mr. Mumford remain s unnecessarily institutionalized in the ps ychiatric hospital where he is segregated from
3 On June 7, 2011, Pl aintiffs’ counsel was advised that DPW had identified a provider willing to provide re sidential habilitation services to Mr. Mumford, and it was expected he would be discharged to t hat program by the e nd of June. Give n these assurances, Plaintiffs do no t seek a tem porary restraining or der on be half of Mr. Mumford. However, Plaintiffs continue t o pursue pr eliminary injunctive relief on his behalf given that D PW’s arrangements with providers have sometimes fallen apa rt. Meek Decl. ¶ 8 (Exh. G). If Mr. Mumford is di scharged as expected, Plaintiffs will so advise the Court.
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Case 2:11-cv-03312-JHS Document 4 Filed 06/09/11 Page 12 of 35
society. Id. ¶ 15. Moreover, Mr. Mumford is at risk of continue d unnecessary segregation and institutionali zation if he is committed to a state mental retardation institution. Id. ¶ 16. Mr. Mum ford's continued institutionalization also jeopardizes his ability to maintain his enrollment in the Consolidated Waiver. Id. ¶ 17.
Plaintiff Joseph Yale is a 26-year-old Luzerne C ounty resident w ho has an intellectual disability and a diagnosis of schizoaffective disorder. Pasqualicchio Decl. ¶ 2 (Exh. F). Mr. Yale's inability to secure appropriat e treatment has resulted in his admissions to private and state psyc hiatric hospitals nearly 20 tim es. Id. ¶ 3. Between institutionalizations, Mr. Yale lived with his family. Id. ¶ 4. Mr. Yale enjoyed goi ng to the movies, playing sports, and shopping when he lived in the community. Id. ¶ 5.
Mr. Yale was enrolled in the Consolidated Waiver in May 2010, giving him access to a wide array of services that the Waiver o ffers. Pasqualicchio Decl. ¶ 6. In or around August 2010, after enrolling in the Consolidated Waiver, Mr. Yale lived in a residential habilitation program in an apar tment with 1:1 staffing. Id. ¶ 7. Mr. Yale was involuntarily committed to a private psychiat ric hospital in or ar ound October 2010 due to incidents of self-injurious behavior, aggression, and property damage. Id. ¶ 8.
Mr. Yale's treating professiona ls have recommended his pl acement in a community residential habilita tion program with 2:1 staffi ng between 8:30 a.m. and 10:00 p.m. Pasqualicchio Decl. ¶ 9. It is anticipated that th is staffing level will be able to be decreased to 1:1 within a few months after he adjusts to a new environment. Id.
In March 2011, Resources for Human De velopment (RHD), a provider, submitted to ODP a budget to serve Mr. Yale in such a program. See Pasqualicchio Decl. ¶ 10.
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Case 2:11-cv-03312-JHS Document 4 Filed 06/09/11 Page 13 of 35

ODP rejected that budget. Id. At a meeting between ODP and RHD on March 23, 2011,

ODP requested additional information, which RHD submitted on April 8. Id. RHD

made several attempts since then to schedul e another meeting with ODP to review the

budget for Mr. Yale, but OD P did not respond to t hose submissions. Id. ¶ 11. Instead,

ODP asked RHD to submit new budget forms. Id.

On or around June 2, 2011, the negotia tions between RHD and ODP reached an

impasse. Pasqualicchio Decl. ¶ 12. The pr ivate psychiatric hospital then referred Mr.

Yale for involuntary commitment to Clarks Summit State Hospital, a state-operated

psychiatric hospital, and a commitment hearing now is scheduled fo r June 14, 2011. See

id. ¶ 13; Meek Decl. ¶ 6 (Exh. G). Mr.

Yale is being referred for commitmen t

proceedings solely due to the breakdown in negotiations between ODP and RHD, and not

because Mr. Yale is experiencing psychi atric symptoms that requir e involuntary

commitment to a state psychiatric hospital. See Pasqualicchio Decl. ¶ 13. RHD rem ains

willing to provide community residential reha bilitation services to Mr. Yale, presumably

if it can successfully negotiate a rate with ODP. See id. ¶ 12.

Mr. Yale has been institutionalized and s egregated from society for more than

eight months as he awaits the development of an approp riate residential habilitation

program. See Pasqualicchio Decl. ¶ 14. Mr. Yale does not appea r to be receiving a ny

habilitation services for his intellectual di sability in the psychiatric hos pital. Id. ¶ 15 .

Mr. Yale's continued eligibility for Consolidated Waiver services is at risk if he does not

return to the community. Id. ¶ 17.

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Plaintiff Karen Lyn Blakely is a nearly 43-year-old Philade lphian who has an intellectual disability and has been diagnosed with bipolar disorder. Blakely Decl. ¶ 1 (Exh. H). Ms. Blakely, who is enrolled in th e Consolidated Waiver, received residential habilitation services in a one-pers on program between 2005 an d November 2009. Id. ¶¶ 4, 12. Ms. Blakely is an energetic, talkativ e, engaging person who enjoys living in the community. Id. ¶ 17.
In November 2009, Ms. Blakel y's mother removed her from the com munity residential habilitation program, and took her into her own hom e after Ms. Blakely sustained second-degree burns when staff in the pr ogram threw hot wat er on her in response to a be havioral incident. Blakel y Decl. ¶¶ 4-5. Ms. B lakely received only limited community s ervices and supports when s he lived wi th her mother. Id. ¶ 6 . Beginning in Fe bruary 2010, M s. Blakely's behavioral issues becam e worse and s he became physically assaultive toward her mother. Id. ¶ 7. Ms. Blakely was admitted in private psychiatric hospitals twice for brief periods. Id. ¶ 8. Ms. Blakely again was admitted to the psychiatric hos pital on June 29, 2010, and sh e has remained there since that time. Id. ¶ 9.
After she was admitted to the psychiatric hospital in June 2010, her treating physicians took her off all medications to detoxify her system. Blakely Decl. ¶ 10. This resulted in marked improvement in he r behavior and functional abilities. Id. Ms. Blakely's treatment team at the psychiatric hospital has concluded that she no longer needs inpatient psychiatric treatment. Id. ¶ 11. Ms. Blakely' s AE,, the organization that contracts with DPW to arrange for Consolidated Waiver services for Philadelphians with
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Case 2:11-cv-03312-JHS Document 4 Filed 06/09/11 Page 15 of 35
intellectual disabilities, identified a community residential habilitation provider in 2010 who was able and willing to provider her with services. Id. ¶ 13. In May 2011, however, that provider withdrew its proposal to provide community residential habilitation services to Ms. Blakely due to a rate issue. Id. ¶ 14. Efforts by the AE to resolve that issue with DPW proved unavailing. Id. Ms. Blakely cannot return to live with her mother because her mother cannot physically meet her needs. Id. ¶ 16.
Ms. Blakely remains unnecessarily institu tionalized in the psychiatric hospital where she does not have opportunities to engage in commun ity life. Blakely Decl. ¶ 17. The psychiatric hospital has threatened to file a petition to commit Ms. Blakely to a stateoperated mental retardation institution. Id. ¶ 18. M s. Blakely does not need to be institutionalized in such a fac ility and, if she were, it would be difficult for her mother to visit her. Id. Ms. Bl akely's continued insti tutionalization also threatens her continued eligibility for services under the Consolidated Waiver. See id. ¶ 19.
ARGUMENT PLAINTIFFS SATISFY THE STANDARDS FOR ISSUANCE OF A TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION. "‘A temporary restraining or der is a ‘s tay put’ equitable rem edy that has its essential purpose the preservation of the stat us quo while the m erits of the cause are explored through litigation.’" EXL Laboratories, LLC v. Egolf , Civil Action No. 10 6282, 2010 WL 5000835 at *3 (E.D . Pa. Dec. 27, 2010) (quoting J.O. v. Orange Tw p., Bd. of Educ. , 287 F.3d 267, 273 (3d Cir. 2002)). The standards fo r issuance of a temporary restraining order are the same as those for issuance of a preliminary injunction.
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Id.; accord Ball v. Famiglio , Civil Action No. 1:cv- 08-0700, 2011 W L 1304614 at *3 (M.D. Pa. Mar. 31, 2011). 4 The standard for assessing whether a preliminary injunction should be granted is well-settled. The court must consider whether: (1) the moving party has a likelihood of s uccess on the merits; (2 ) the moving party will suffer irreparable harm if the injunction is denied; (3) granting relief will result in even greater harm to the non-moving party; and (4) the public interest favors issuance of a preliminary injunction. Bimbo Bakeries USA, Inc. v. Botticella , 613 F.3d 102, 109 (3d Cir. 2010). An examination of each of these factors demons trates that the issuance of injunctive relief is warranted and appropriate in this case.
A. Plaintiffs Are Likely to Succeed on the Merits. Plaintiffs allege that Defenda nts Alexander and D PW have vi olated their right s under, respectively, the Americans wit h Disabilities Act (ADA) and Re habilitation Act (RA) by failing to provide them with services in the commun ity. Plaintiffs also allege that Defendant Alexander' s failure to af ford them prompt access to appropriate community residential habilitation services to which they are entitled violates various provisions of Title XIX of the Social Security Act, the federal Medical Assistance statute. Plaintiffs are likely to prevail on these claims.
4 Although the Court may issue a tempor ary restraining order without written or oral notice to the opposing party, Fed. R. Civ. P. 65(b)(1), Plaintiffs in this ca se provided advance notice of Defendants' counsel. Meek Decl. ¶¶ 2-6 (Exh. G).
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1. Defendants Have Violated the Integration Mandates of the ADA and RA.
Title II of the ADA prohibits public entities, such as DPW, from excluding persons with disabilities from participating in or denying the benefits of services, programs, or activities, or otherwise discriminating against such individuals. 42 U.S.C. § 12132. This provision "largely mirrors Section 504 of the [Rehabilitation Act (RA)]," 29 U.S.C. § 794(a), w hich applies to federally- funded programs, and thus t he Third Circuit has "construed t he provisions of the RA a nd the A DA similarly in light of t heir close similarity of language and purpose." Frederick L. v. Dep't of Public Welfare , 364 F.3d 487, 491 (3d Cir. 2004) (Frederick L. I).5
"The ADA['s] and RA' s anti-discrimination principles culminate in their integration mandates [28 C.F.R. §§ 35.130(d), 41.51(d), respectively], which direct states to administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified indi viduals with disabilities." Frederick L. I, 364 F.3d at 491. The integration mandate requires the provision of services to persons with disabilities in ">a setting that enables individuals with disab ilities to interact with nondisabled persons to the fullest extent possible.’" Id. (quoting 28 C.F.R. pt. 35, App. A, p. 450 (1998)). "In short, where appropriate for the patient , both the AD A and RA favor integrated, community-based treatment over institutionalization." Id. at 492.

5 Since the ADA and RA are construe

d similarly, Plaintiffs' subsequent

references to the "ADA" will mean both the ADA and RA.

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Case 2:11-cv-03312-JHS Document 4 Filed 06/09/11 Page 18 of 35
In Olmstead v. L.C. , 527 U.S. 581 ( 1999), the Su preme Court interpreted the ADA's integration mandate. It unequivocally held that unnecessa ry institutionalization and isolation of indi viduals with disabilities constitutes discrimination under the ADA. Id. at 600; accord Helen L. v. DiDario, 46 F.3d 325, 333 (3d Cir.), cert. denied, 516 U.S. 813 (1995). The Court concluded that th e ADA's prohibition on discrimination may require that states provide services to pe rsons with dis abilities in community settings rather than in institutions. Olmstead, 527 U.S. at 587. The C ourt recognized, however, that the public entity's obligations are "not boundless." Id. at 603. Writing for a plurality, Justice Ginsburg noted that the integration mandate is qualified by the ADA's "reasonable modification" and "fundamental alteration" provisions, 28 C. F.R. § 35.130(b)(7), which provide that a public entity n eed not make modifications th at would fundamentally alter the nature of the service, program, or activity. Id. at 603.
Olmstead identified three elements in an in tegration mandate case: (1) that community placement is appropriate for the indi vidual; (2) that the transfer to a more integrated setting is not oppose d by the individual; and (3) that the placement in a more integrated setting can be re asonably accommodated. Olmstead, 527 U.S. at 587, 607; accord Frederick L. I, 364 F.3d at 492; Benjamin v. Dep't of Public Welfare, Civil Action No. 09-cv-1182, 2011 WL 1261542 at *5 (M.D. Pa. Jan. 27, 2011). Plaintiffs can readily establish each of the elements on which they have the burden of proof.
The treatment professionals have determined that Plaintiffs ca n, with appropriate services and supports, live in the community, which is more in tegrated than the inpatient psychiatric hospitals where they now reside or state-operated institutions to which
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Plaintiffs may be committed. See discussion, supra, at 9-13; see also Benjamin, 2011 WL 1261542 at *6 ("There is no dispute that community placement would be appropriate for an individual [residing in a state ment al retardation instituti on] with appropriate supports and services ...."). In addition, Plai ntiffs through their participation in this litigation evidence that they ar e not opposed to receiving co mmunity services. Finally, Plaintiffs' need for co mmunity services can be reasonabl y accommodated. Plaintiffs are enrolled in the Cons olidated Waiver, which entitles them to appropriate community residential habilitation services. Defendant s need only provide Pl aintiffs with the community services they al ready are authorized to re ceive and w hich have been determined by Defendants' agents to be clinically necessary and appropriate.
Courts have granted preliminary injunctions in similar recent ADA cases. In Peter B. v. Sanford , Civil Action No. 6:10-767-JMC-BHH, 2010 WL 5912259 (D.S.C. Nov. 24, 2010) (Report and Rec ommendation), adopted, 2011 WL 824584 (D.S.C. Mar. 7, 2011), three individuals with intellectual or developmental disabilities received services under an HCBS waiver. The st ate amended its waiver in 2009 due to budget constraints, reducing the number of hours that eligible persons, including the plaintiffs, could receive for certain covered s ervices. Id. at *2. The court held t hat plaintiffs were likely to succeed on the merits of their claim that th e state's service caps violated the ADA' s integration mandate since the plaintiffs ha d been living in the community, wanted t o continue to do so, and their needs could be reasonably accommodated by reinstating their full services. Id. at *6.
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Case 2:11-cv-03312-JHS Document 4 Filed 06/09/11 Page 20 of 35
In Marlo M. ex rel. Parris v. Cansler , 679 F. Supp. 2d 635 (E. D.N.C. Jan. 17, 2010), two adults with intellectual disabilities had been receiving s ervices in one-person homes. They were notified that the fundin g for those program s would be term inated, forcing them into group homes or institutions. Id. at 637. The court granted a preliminary injunction to enjoin the termina tion of those progra ms, finding that the termination of t he plaintiffs' programs would likely violate the AD A's integration mandate. Id. at 638.
Similarly, in Cota v. Maxwell-Jolly , 688 F. Supp. 2d 980 ( N.D. Cal. 2010), t he court granted a prelim inary injunction to prevent the state fro m implementing budgetmotivated changes to the elig ibility standards for its Adu lt Day Health Care Program. The court held that the elig ibility changes were likely to violate the ADA' s integration mandate because the plaintiffs needed the services to avoid institutionalization and wanted to remain in their own homes and communities. Id. at 994. The cour t rejected the state's argument that the state's budget crisis justifie d the program changes, noting that the mere fact th at alterations in a progra m or service required financial outlays does not constitute a fundamental alteration. Id. at 995; see also Pennsylvania Protection and Advocacy, Inc. v. Pa. Dep't of Public Welfare , 402 F.3d 374, 380 (3d C ir. 2005) (increased expenditures alone are not suffi cient to establish a fundamental alteration defense); Frederick L. I, 364 F.3d at 495-96 (same).
Ball v. Rodgers, Civil Action No. 00-67-TUC-EHC, 2009 WL 1395423 (D. Ariz. Apr. 24, 2009), likewise determined that a state's failure to assure the provision of HCBS waiver services to which the plaintiffs were entitled likely violated the plaintiffs' rights
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under the ADA. Id. at *5. In that case, a shortage of attendant care worke rs to provide the plaintiffs with personal care services preve nted them from receiving all of t he services that they needed and which had been authorized by their care plans. Id. As a result, the plaintiffs were thr eatened with institutionalization or forced into institutions to receive necessary care. Id. The court concl uded that the state' s "failure to preve nt unnecessary gaps in service and proper ly monitor the HC BS program improperly discriminated against persons with disabilities by limiting thei r ability to maintain their social and economic i ndependence and de priving them of a real choice bet ween home and institutional care." Id.
Finally, the court in Cruz v. Dudek , Civil A ction No. 10-23048-CIV, 2010 WL 4284955 (S.D. Fla. Oct. 12, 2010), granted a preliminary injunction to require the state to provide services to two individuals with spinal cord injuries who had been wait-listed for services in an HCBS waiver. The court he ld that the plaintiffs were at risk of institutionalization if they did not receive HCBS waiver services. Id. at *12-*13. "Requiring institutionalization of persons befo re they can receive assistance which will enable them to reside in th e community runs counter to th e express provi sions of the integration mandate ...." Id. at *14.
Like the courts in Peter B., Marlo M., Cota, Ball, and Cruz, this Court shoul d conclude that Plaintiffs are likely to succee d on the merits of their claims under the ADA and RA. Indeed, they are much more than likely to succeed. Messrs. Mumford and Yale and Ms. Blakely are not merely at risk of unnecessary instituti onalization. They are unnecessarily institutionalized in psychiatric hospitals where they have been confined for
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Case 2:11-cv-03312-JHS Document 4 Filed 06/09/11 Page 22 of 35
months without a ppropriate services to meet thei r habilitation need s. Moreover, Defendants would not have to create new types of programs for Plaintiffs, take Plaintiffs off the waiting list ahead of ot hers, or change their elig ibility standards to provide appropriate and necessa ry community residential habilita tion services to Plaintiffs. Plaintiffs, as enrollees in th e Consolidated Waiver currently are elig ible for and entitled to such services. 6 Defendants' failure to provide Pl aintiffs Mumford, Yale, and Blakel y with the community residential habilitation s ervices to which they are entitled, resulting in their institutionalization, plainly violates the ADA's integration mandate.
2. Defendant Alexander Has Violated the Federal Medical Assistance Statute and 42 U.S.C. § 1983. States, like Penns ylvania, that choose to participate in th e Medical Assistance program must comply with the requirements of Title XIX and its implementing regulations. Pennsylvania v. United States, 2011 WL 991 402 at *1; Pennsylvania Pharmacists Ass'n, 283 F. 3d at 533. Defenda nt Alexander has failed to com ply with three requirements of Title XIX: (1) the requirem ent to provide eligib le recipients with services to which they are entitled; (2) the requirement to provide eligible recipients with Medical Assistance services with reasonabl e promptness; and (3) the requirem ent to protect the health and welfare of persons re ceiving HCBS waiver services, to pr ovide
6 Decisions that suggest that Penns ylvania need only develop and im plement a viable integration plan to o ffer community services in th e future to persons who are unnecessarily institutionalized, see Frederick L. v. Dep't of Public Welfare, 422 F.3d 151, 160 (3d Cir. 2005); Benjamin, 2011 WL 1261542 at *6, *8-*9, are not relevant in this case given that the Plaintiffs have a current statutory entitlement to community services under the Consolidated Waiver and are not on a waiting list.
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Case 2:11-cv-03312-JHS Document 4 Filed 06/09/11 Page 23 of 35
them with a choice of feasible alternatives, and to provide them w ith a choice between institutional and HCBS waiver services.
a. Defendant Alexander Has Failed to Provide Plaintiffs with Community Residential Habilitation
Services to Which They Are Entitled. As the Supreme Court recognized m ore than two decades ago: "An indi vidual is entitled to Medicaid if he fulfills the criteria esta blished by the state in which he lives." Schweiker v. Gray Panthers , 453 U.S. 34, 36-37 (1981) (emphasis added). Title XIX unequivocally provides: "A State plan fo r medical assistance mu st -- ... provide -- for making medical assistance available to -- ... all individuals" who fall within specified eligibility categories. 42 U.S. C. § 1396a(a)(10)(A). This creates an entitlement to Medical Assistance services. See Sabree ex rel. Sabree v. Richman , 367 F.3d 180, 190 (3d Cir. 2004). "Medical assistance" includes HCBS waiv ers, such as the Consolidated Waiver, for persons like the Plaintiffs who are enrolled in those waiv ers. 42 U.S. C. § 1396n(c); Boulet v. Celluci, 107 F. Supp. 2d 61, 76-77 (D. Mass. 2000). As the court explaine d in Boulet: "[O]nce a state opts to implement a waiver program and sets out eligibility requirements for that program, eligible individuals are entitled to those services and to the associated protections of the Medicaid Act." Boulet, 107 F. Supp. 2d at 76 (emphasis added). In Kerr v. Holsinger, Civil Action No. 03-68-H, 20 04 WL 882203 (E.D. Ky. Mar . 25, 2004), for instan ce, the plaintiffs challenged Ke ntucky's revised standard f or eligibility for nursing f acility and HCBS waiver services in response to a budget crisis.
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As a result, plaintiffs lost their eligibility for those servic es despite no change in their

medical needs. The court held that th

e state's actions viol ated 42 U.S.C. §

1396a(a)(10)(A) by denyi ng the plaintiffs medically necessary services. Id. at *8- *9.

Reducing benefits based only on budget concerns violates Title XIX by "exposing reci-

pients to ‘whimsical and arbitrary’ decisions which the Act seeks to avoid." Id. at *9.

It is undisputed that Messrs. Mum ford and Yale and Ms. Blakely are enrolled in

and, therefore, eligible for and entitled to Medical Assistance services available under the

Consolidated Waiver. The y have been de termined to need co mmunity residential

habilitation services. Yet, DPW has failed to a ssure that Plaintiffs receive those services to which they are entitled in violation of 42 U.S.C. §§ 1396a(a)(10)(A) and 1983.7

b. Defendant Alexander Has Violated Title XIX's Reasonable Promptness Mandate by Failing to Timely Provide Plaintiffs with Community Residential Habilitation Services.

Title XIX requires that states mu st "provide that all individua ls wishing to make

application for medical assistance under the plan shall have the opportunity to do so, and

that such assistance shall be furnishe d with reasona ble promptness to all eligible

individuals." 42 U.S.C. § 1396a(a)(8). Title XIX 's reasonable promptness mandate

7 Defendant cannot conte nd that it has no obligation to pay for res idential habilitation services sim ply because Medical Assi stance does not pr ovide federal m atching funds for room and boar d services. As the Boulet Court observed, such an argum ent "is distracting at best and misleading at worst." Boulet, 107 F. Supp. 2d at 75. The fact that room and board for residen tial habilitation services must be paid by non-Medical Assistance sources, does not mean that Plain tiffs are not entitled to those services. Id. So, too, inadequate state appr opriations do not excuse non-co mpliance with Title XIX. Id. at 77 (citing Doe 1-13 ex rel. Doe, Sr. 1-13 v. C hiles, 136 F.3d at 709, 720 (11th Cir. 1998)).
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applies to HCBS Waiver services. See Susan J. v. Riley , 254 F.R.D. 439, 451-52 (M.D. Ala. 2008); Lewis v. New Mex ico Dep't of He alth, 275 F. S upp. 2d 1319, 1343-44 (D.N.M. 2003); Boulet, 107 F. Supp. 2d at 78; McMillan v. McCrimon, 807 F. Supp. 475, 480-82 (C.D. Ill. 1992).
Title XIX's reasonable promptness mandate requires DPW to adopt time standards for the provision of services to avoid unreasonable delays. See Kirk T. v. Houstoun, Civil Action No. 99-3253, 2000 WL 830731 at *3 (E.D. Pa. June 27, 2000). Moreover, states may not de lay furnishing Medical Assistance due to its adm inistrative procedures. 42 C.F.R. § 435.930(a); Lewis, 275 F. Supp. 2d at 1345. Stat es likewise cannot excuse their failure to provide a specific type of available and ne cessary HCBS waiver services simply on the basis that other types of wa iver services have been furnished to the individuals. Boulet, 100 F. Supp. 2d at 79; see also Doe v. Kidd, No. 10-1191, 2011 WL 1058542 at *6-*7 (4th Cir. M ar. 24, 2011) (holding that state violated reasonable promptness mandate by failing t o timely offer plaintiff options to en able her to receive the type of service deemed to be appropriate and, instead, provided her with an entirely different service). Nor is inadequate fundi ng an excuse to avoi d compliance with the reasonable promptness mandate. Boulet, 107 F. Supp. 2d at 79-80.
Community residential habilitation services are Medical Assistance services for individuals enrolled i n the Cons olidated Waiver, such as Pl aintiffs. As such, they are entitled to receive such servi ces with reasonable prom ptness. Yet, Mr. Mumford has been without appropriate co mmunity residential habilitation services since at least January 2011 when he was admitte d to a ps ychiatric hospital. Even before that, he was
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Case 2:11-cv-03312-JHS Document 4 Filed 06/09/11 Page 26 of 35
living at home without suffi cient supports and services , ultimately resulting in his psychiatric hospitalization. Mr . Yale has been in a psychiatric hospital -- without appropriate community residential habilitation services -- for eight months. Ms. Blakely has been institutionalized in a psychiatri c hospital without access to appropriate community residential habilitation services fo r nearly a year. Like Mr. Mumford, Ms. Blakely's lack of access to community resi dential habilitation services predates her institutionalization since she was living at home with her mother without appropriate services before she was admitted to the psychiatric hospital.
Plaintiffs' lack of timely access to appr opriate community residential habilitation services is not sur prising since D PW has ad opted no ti me standards by w hich it m ust assure that individuals recei ve such services. Moreover, it appears that the delay in furnishing Plaintiffs with n ecessary residential habilitation services is due to DPW' s administrative policies and practices that ha ve made it more burdensome for providers to promptly develop, receive approval for, and im plement community residential habilitation services for individuals, like Pl aintiffs, who have ch allenging behavioral health needs. While DPW cer tainly is entitled to assure that services are not undul y costly, it cannot use its efforts to impose cost controls to jus tify its utter failure to timely provide Plaintiffs with essentia l services they need, particul arly when the alternative has been months of institutionalizat ion. Defendants' failure to promptly afford Plaintiffs community residential habilitation services violates 42 U.S.C. §§ 1396a(a)(8) and 1983.
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c. Defendant Alexander Has Failed to Protect Plaintiffs' Health and Welfare and to Afford Them a Real Choice Among Services. Title XIX requires that each HCBS waiv er include "necessary safeguards ... to
protect the health and welfare of individuals provided services under the waiver ...." 42 U.S.C. § 1396n(c)(2)(A). As th e Health Care Financing Administration (the predecessor of CMS) explained, this requires a state
to provide all people enrolle d in the waiv er with the opportunity for access to all ne eded services covered by t he waiver and under the Medicaid State plan. ... The opportunity for access pertains to all servic es available under the waiver that an enrollee is determined to nee d on the basis of an assessment and a written plan of care/support.
* * * Once in the waiver, an enrolled individual enjoys pr otection against arbitrary or inappr opriate restrictions, and the State assumes an obligation to assure the indivi dual's health and welfare.
HCFA, Olmstead Update No. 4 at 5, 6 (Jan. 10, 2001), available at http://www.cms.gov/ smdl/downloads/smd011001a.pdf.
Plaintiffs' health and welfare has been jeopardized by Defe ndant Alexander's
implementation of the Consolidated Waiver. Community residential habilitation services are available under the Consolidated Waiver. Plaintiffs Mumford, Yale, and Blakely, who are enrolled in the Consolidated Waive r, have been assessed by professionals and determined to need co mmunity residential rehabilitation se rvices. Yet, Plaintiffs have
been institutionalized in psychi atric hospitals unnecessarily for months as they await access to community residential rehabilitation services appropriate to meet their complex
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needs. Plaintiffs appear to be hostage to DPW's inappropriate policies and practices that have effectively restricted the pr ompt development of higher-cost com munity residential rehabilitation programs require d to serve individuals with challenging needs in the community. In the e nd, whatever the cause of the delays in the devel opment of community residential rehabilitation services for Messrs. Mumford and Yale and Ms. Blakely, the bottom line is that D efendant Alexander's failure to provide them with those services has actively underm ined their hea lth and wel fare by caus ing their unnecessary institutionalization in psychiatric hospitals where they do not receive appropriate habilitation services necessary fo r their intellectual disabilities. Defendant' s actions and inactions thus violate 42 U.S.C. §§ 1396n(c)(2)(A) and 1983.
Title XIX also requires that states inform individuals eligible for an HCBS waiver of their feasible service alte rnatives available under the wa iver so that they can choose both among such available services an d between HCBS waiver s ervices and institutionalization. 42 U.S.C. § 1396n(c)(2)(C). In Cramer v. Ch iles, 33 F. Supp. 2d 1342 (S.D. Fla. 1999), the cour t held that Florida violated this provision through the enactment of legislation t hat reduced fundi ng for services, effect ively eliminating any choice between institutional and waiver services. Id. at 1352-53.
Defendant Alexander has violated T itle XIX's choice requirements for HCBS waiver services. Plaintiffs Mumford, Yale , and Bla kely have not been informed o f feasible alternatives for community residential hab ilitation services under the Consolidated Waiver. Indeed, it appears th at DPW ha s not ident ified any com munity residential habilitation provider to serve Ms. Blakely. The lack of feasible waiver options
26

Case 2:11-cv-03312-JHS Document 4 Filed 06/09/11 Page 29 of 35
for Plaintiffs has forced them to be institu tionalized, essentially stripping them of their right to choose Cons olidated Waiver services rather than institutional services and of their right to choose among qu alified providers of community r esidential habilitation services in violation of 42 U.S.C. §§ 1396n(c)(2)(C).
B. Plaintiffs Are Suffering and Will Continue to Suffer Irreparable Harm Absent Injunctive Relief. Plaintiffs seek a temporary restraining order to require Defendants to tak e appropriate steps necessary to prevent the commitment of Plai ntiffs Yale and Blakely t o, respectively, to a state psychiatric hospital and state mental reta rdation institution. Plaintiff Yale has a commitment hearing sche duled for June 14, 20 11, Meek Decl. ¶ 6, solely because DPW was unable to reach ag reement on the rate to pay a community residential habilitation provider that wa s ready and willing to provide community services to him. Plaintiff Blakely has been threatened with invo luntary commitment to state mental retardation centers if she do es not shortly receive necessary community residential habilitation services. Such commitments are not c linically necessary and will cause further irreparable harm to Plaintiffs by moving them to yet another setting t hat cannot provide them with the services they need. Defendants can intercede with the state courts to assure them that commitment is neither necessary nor appropriate and that Defendants are working t o secure prom pt alternative commun ity placements for Plaintiffs. Plaintiffs also ask that the te mporary restraining or der bar Defendants from terminating them from the Cons olidated Waiver. This relief w ill preserve the status quo pending disposition of the prel iminary injunction motion by not transferrin g Plaintiffs
27

Case 2:11-cv-03312-JHS Document 4 Filed 06/09/11 Page 30 of 35
from one inappropriate institution to another. Plaintiffs seek a preliminary injunction to
enjoin Defendants to provide appropriate community residen tial habilitation services to
Plaintiffs -- services which are clinically necessary a nd to whic h they have a n
entitlement.
"An injunction is appropriate only where there exists a th reat of irreparable harm
such that legal remedies are ren dered inadequate." Anderson v. Davila , 125 F.3d 148,
163 (3d Cir. 1997); accord West Virginia University Hos pitals, Inc. v. Rendell , Civil
Action No. 1:CV-09-1684, 2009 W L 3241849 at *13 (M.D. Pa. Oct. 2, 2009).
Irreparable harm is plainly established in this case.
In enacting t he ADA, Congress made a determ ination that as between tw o
appropriate settings -- an in stitution or the community -- the community is the better
choice per se because people with disabilities should live in integrated settings just as do
non-disabled people. As the Olmstead Court explained:
Recognition that unjustified ins titutional isolation of persons with disabilities is discrimi nation reflects two evident judgments. First, institutiona l placement of persons who can handle and be nefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unw orthy of par ticipating in community life. [citations omitted]. Second, confinement in an institution severely diminishes the everyday life activities of individuals , including family relations, so cial contacts, work options, economic independence, educational adva ncement, and cultural enrichment.
Olmstead, 527 U.S. at 600-01 (em phasis added). Plaintiffs' unnecessary in stitutional-
ization in psyc hiatric hospitals thus is sufficient to create irreparable harm. Moreover,
the mere risk of unnecessary institutionalization is sufficient to create irreparable harm. 28

Case 2:11-cv-03312-JHS Document 4 Filed 06/09/11 Page 31 of 35
See Marlo M. , 679 F. Supp. 2d 635 at 638; Cruz, 2010 WL 4284955 at *15. Accordingly, the threat to pursue proceedi ngs against Plaintiffs to commit them to stateoperated institutions also constitutes irreparable harm.
Moreover, courts have specifically held that inability to acce ss necessary Medical Assistance benefits and concom itant potential health problems create irreparable harm . See Todd ex rel. Todd v. Sorrell , 841 F.2d 87, 88 (4th Cir. 1988); Caldwell v. Blum, 621 F.2d 491, 498 ( 2d Cir. 1980), cert. denied, 452 U.S. 909 ( 1981); Peter B., 2010 WL 5922259 at *9; Crawley v. Ahmed, Civil Action No. 08-14040, 2009 WL 1384147 at*27*28 (E.D. Mich. May 14, 2009); Kerr, 2004 WL 882203 at *9. Plaintiffs have not only been denied community residen tial habilitation services that are clinically necessary, but they are at risk of los ing their entitlement to the Consolidated Waiv er entirely if they remain unnecessarily institutio nalized. Accordingly, Plaintiffs' and class members' inability to access vital Medical Assistance benefits and potential loss of their entitlement to Consolidated Waiver serv ices is sufficient to estab lish irreparable harm for a preliminary injunction.8

8 Even if the harm to Plaintiffs

and class mem bers could som ehow be

compensated by m oney damages, the Eleventh Amendment bars an award of monetary

damages against the Defendant for m ost of Pl aintiffs' claims. This is s ufficient to

establish irreparable harm. See Temple University v. White, 941 F.2d 201, 215 (3d Ci r.

1991), cert. denied, 502 U.S. 1032 ( 1992); Crawley, 2009 WL 1384 147 at *28; West

Virginia University Hospitals, Inc., 2009 WL 3241849 at *13-*14.

29

Case 2:11-cv-03312-JHS Document 4 Filed 06/09/11 Page 32 of 35
C. Any Harm to Defendant Due to Issuance of the Injunction Does Not Outweigh the Harm to Plaintiffs Absent Such Relief. Issuance of a temporary restraining order to prevent the commitment or transfer of Plaintiffs Yale and Blakely to inappropriate state institutions will not impose any harm on Defendants. It will merely preserve the status quo. Issuance of a preliminary injunction to re quire Defendants to provide Plaint iffs with appropriate community re sidential habilitation services will not harm Defendants, either. The Commonwea lth, in choosing to participat e in the Medical Assistance program, has willingly agreed to comply w ith the requirements of that program. Defendants' interest, therefore, is to assure that they provi de eligible persons with the services to which they are entitled under the Medical Assist ance program in accordance with federal law. See Libbie Rehabilitation Center v. Shal ala, 26 F. Supp. 2d 128, 132 (D.D.C. 1998); Hill v. O'Bannon, 554 F. Supp. 190, 198 (E.D. Pa. 1982). Even assuming arguendo that the Defendants must sp end resources to remedy the violations of Plaintiffs' rights, such costs are not sufficient to justify a denial of otherwise appropriate injunctive relief. See Eder v. Beal , 609 F.2d 695, 701 n. 12 (3d Cir. 1979). Defendants' failure to comply with the ADA, RA, and Title XIX has resulted in Plaintiffs' inability to access essential serv ices they need to live in the community and resulted in their unnecessary institutionalization. As one court wrote in similar circumstances: "The harm to the Commonwealth if [a preliminar y injunction were] granted, while it may not have been ne gligible, was m easured only in money and w as inconsequential by
30

Case 2:11-cv-03312-JHS Document 4 Filed 06/09/11 Page 33 of 35
comparison" to the harm suffered by the Plaintiffs. Todd, 841 F.2d at 88; see also Marlo M., 679 F. Supp. 2d at 638; Kerr, 2004 WL 882203 at *10.
D. Injunctive Relief Is In the Public Interest. The public interest will be served by t he issuance of injunctiv e relief that upholds the integration mandates of the ADA and RA. Peter B., 2010 WL 5912259 at *12; Cruz, 2010 WL 4284955 at *16; Marlo M., 679 F. Supp. 2d at 638. So, too, the public will benefit if Defendant Alexander complies with his obligations under Title XIX and affords prompt services to Pl aintiffs. See Crawley, 2009 W L 1384147 at *29; Olson v. Wing , 281 F. Supp. 2d 476, 489 (E.D.N.Y.), aff'd, 66 Fe d. Appx. 275 (2d C ir. 2003); Westenfelder v. Ferguson, 998 F. Supp. 146, 159 (D.R.I. 1998).
CONCLUSION For all the reasons set forth above, Plainti ffs respectfully request that the Court : (1) issue a temporary restraining order to preserve the status quo by requiring Defendants to take appropriate steps to prevent the co mmitment of Plaintiffs Yale and Blakely t o state institutions and by barring Defenda nts from terminating Plaintiffs from the Consolidated Waiver, and (2) gr anting a preliminary injunction to enjoin Defendants to immediately assure that Plaintiffs promptly receive the community residential habilitation services that are clinically necessary.
31

Case 2:11-cv-03312-JHS Document 4 Filed 06/09/11 Page 34 of 35

Respectfully Dated: June 9, 2011
Disability Philadel (215)

submitted,
By: /s/ Robert W. Meek Robert W. Meek PA 27870 Mark J. Murphy PA 38564 Robin Resnick PA 46980 Rights Network of PA 1315 Walnut Street, Suite 500 phia, PA 19107-4705 238-8070
Counsel for Plaintiffs

32

Case 2:11-cv-03312-JHS Document 4 Filed 06/09/11 Page 35 of 35
CERTIFICATE OF SERVICE
I, Robert W. Meek, hereby certify that true and correct copies of Plaintiffs' Motion
for a Prelim inary Injunction, Memorandum of Law and Exhi bits in S upport of t hat
Motion, and proposed Order were served as follows on the following on June 9, 2011:
By Email and Hand Delivery Barry N. Kramer
Chief Deputy Attorney General Office of Attorney General
21 South 12th Street, 3rd Floor Philadelphia, PA 19103
By Email and First Class Mail Kathleen A. Grogan
Senior Assistant Counsel Office of General Counsel Department of Public Welfare 3rd Floor West, Health & Welfare Building
Harrisburg, PA 17120
/s/ Robert W. Meek Robert W. Meek

 </s> Case: 2:11-cv-3312 As of: 11/25/2012 11:58 PM EST 1 of 3
CLOSED,STANDARD
United States District Court Eastern District of Pennsylvania (Philadelphia) CIVIL DOCKET FOR CASE #: 2:11−cv−03312−JHS

MUMFORD et al v. DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTHOF PENNSYLVANIA et al Assigned to: HONORABLE JOEL H. SLOMSKY Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 05/20/2011 Date Terminated: 10/18/2011 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

LYKEH MUMFORD BY AND THROUGH HIS NEXT FRIEND, KATHERINA MACH

represented by ROBERT W. MEEK DISABILITIES LAW PROJECT 1315 WALNUT STREET SUITE 500 PHILADELPHIA, PA 19107 215−238−8070 Fax: 215−772−3126 Email: rmeek@drnpa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
JOSEPH YALE BY AND THROUGH HIS NEXT FRIEND, PAMELA ZOTYNIA

represented by ROBERT W. MEEK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
KAREN LYN BLAKELY BY AND THROUGH HER MOTHER AND NEXT FRIEND, CAROL BLAKELY

represented by ROBERT W. MEEK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTHOF PENNSYLVANIA
Defendant GARY ALEXANDER IN HIS OFFICIAL CAPACITY AS ACTING SECRETARY OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA

represented by BARRY N. KRAMER PA OFFICE OF ATTY GENERAL 21 SOUTH 12TH STREET THIRD FLOOR PHILADELPHIA, PA 19107 215−560−1581 Fax: 215−560−1031 Email: bkramer@attorneygeneral.gov ATTORNEY TO BE NOTICED
represented by BARRY N. KRAMER (See above for address) ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

Case: 2:11-cv-3312 As of: 11/25/2012 11:58 PM EST 2 of 3

05/20/2011
05/20/2011 05/31/2011 06/03/2011 06/03/2011 06/09/2011
06/09/2011 06/09/2011 06/09/2011
06/10/2011 06/21/2011 06/21/2011
07/21/2011 08/05/2011

1 COMPLAINT against GARY ALEXANDER, DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTHOF PENNSYLVANIA ( Filing fee $ 350 receipt number 043578.), filed by LYKEH MUMFORD, JOSEPH YALE. (Attachments: # 1 Civil Cover Sheet, # 2 Case Management Track Form, # 3 Designation Form)(mima, ) (Entered: 05/20/2011)
Summons Issued as to GARY ALEXANDER, DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTHOF PENNSYLVANIA. Two Forwarded To: Counsel on May 20, 2011 (mima, ) (Entered: 05/20/2011)
2 SUMMONS Returned Executed by LYKEH MUMFORD, JOSEPH YALE re: Lan Do served Summons and Complaint upon All Defendants by On DPW &PA AG's Office. All Defendants. (MEEK, ROBERT) (Entered: 05/31/2011)
3 AMENDED COMPLAINT against GARY ALEXANDER, DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTHOF PENNSYLVANIA, filed by LYKEH MUMFORD, JOSEPH YALE, KAREN LYN BLAKELY.CERTIFICATE OF SERVICE.(kk, ) (Entered: 06/06/2011)
2 Summons Issued as to GARY ALEXANDER, DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTHOF PENNSYLVANIA. Forwarded To: PLAINTIFF'S COUNSEL on 6/6/2011 (kk, ) (Entered: 06/06/2011)
4 MOTION for Temporary Restraining Order and Preliminary Injunction filed by KAREN LYN BLAKELY, LYKEH MUMFORD, JOSEPH YALE.Memorandum of Law, Certificate of Service. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Proposed TRO, # 11 Proposed PI Order)(MEEK, ROBERT) (Entered: 06/09/2011)
5 NOTICE of Appearance by BARRY N. KRAMER on behalf of GARY ALEXANDER, DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTHOF PENNSYLVANIA with Cert of Service(KRAMER, BARRY) (Entered: 06/09/2011)
6 NOTICE by GARY ALEXANDER, DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTHOF PENNSYLVANIA Kathy Grogan, Esquire, Entry of Appearance (KRAMER, BARRY) (Entered: 06/09/2011)
7 ORDER THAT A HEARING AND ORAL ARGUMENT ON PLAINTIFFS' MOTION FOR A TEMPORARY RESTRAINING ORDER (DOC. NO.4) SHALL BE HELD ON 6/10/2011 03:00 PM IN COURTROOM BEFORE HONORABLE JOEL H. SLOMSKY. SIGNED BY HONORABLE JOEL H. SLOMSKY ON 6/9/2011. 6/9/2011 ENTERED AND COPIES E−MAILED.(kk, ) (Entered: 06/09/2011)
8 STIPULATION AND ORDER THAT THE PLAINTIFFS MOTION FOR A TEMPORARY RESTRAINING ORDER SHALL BE WITHDRAWN; ETC. SIGNED BY HONORABLE JOEL H. SLOMSKY ON 6/10/2011. 6/10/2011 ENTERED AND COPIES E−MAILED.(kk, ) (Entered: 06/10/2011)
9 ANSWER to 3 Amended Complaint by GARY ALEXANDER, DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTHOF PENNSYLVANIA with Affirmative Defenses, Certificate of Service. (KRAMER, BARRY) Modified on 6/23/2011 (nd, ). (Entered: 06/21/2011)
10 ORDER THAT A PRETRIAL CONFERENCE SHALL BE HELD ON 8/3/2011 04:00 PM IN JUDGE CHAMBERS BEFORE HONORABLE JOEL H. SLOMSKY, ETC. SIGNED BY HONORABLE JOEL H. SLOMSKY ON 6/21/2011. 6/21/2011 ENTERED AND COPIES E−MAILED.(kk, ) (Entered: 06/21/2011)
11 Discovery Plan by All Parties.(MEEK, ROBERT) (Entered: 07/21/2011)
12 SCHEDULING ORDER THAT THE PARTIES SHALL APPEAR FOR A HEARING ON PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION (DOC. NO. 4) ON 9/21/2011, AT 11:00 AM, IN COURTROOM TO BE DETERMINED. ALL FACT DISCOVERY IS DUE BY 9/15/2011. ALL

Case: 2:11-cv-3312 As of: 11/25/2012 11:58 PM EST 3 of 3

08/05/2011 08/05/2011 09/06/2011
10/05/2011 10/18/2011 02/29/2012

MOTIONS FOR SUMMARY JUDGMENT AND DAUBERT MOTIONS ARE DUE BY 12/8/2011. NO LATER THAN 1/5/2012, THE PARTIES SHALL FILE THEIR PRETRIAL MEMORANDA. ALL MOTIONS IN LIMINE AND ANY OTHER PRETRIAL MOTIONS SHALL BE FILED NO LATER THAN 1/19/2012. A FINAL PRETRIAL CONFERENCE IS SET FOR 2/3/2012, AT 3:00 PM IN CHAMBERS (ROOM 5614). THIS CASE WILL BE LISTED FOR TRIAL ON 2/10/2012, AT 9:30 AM, IN A COURTROOM TO BE DETERMINED. ALL FURTHER DEADLINES AND INSTRUCTIONS ARE AS OUTLINED HEREIN. SIGNED BY HONORABLE JOEL H. SLOMSKY ON 8/4/2011. 8/5/2011 ENTERED AND COPIES E−MAILED.(amas) (Entered: 08/05/2011)
Set/Reset Hearings: MISCELLANEOUS HEARING SET FOR 9/21/2011 11:00 AM IN COURTROOM BEFORE HONORABLE JOEL H. SLOMSKY. (amas, ) (Entered: 08/05/2011)
13 Minute Entry for proceedings held before HONORABLE JOEL H. SLOMSKY: TELEPHONE STATUS CONFERENCE held on 8/3/2011. (amas) (Entered: 08/05/2011)
14 AMENDED SCHEDULING ORDER: DISCOVERY DUE BY 9/30/2011, PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION HEARING SET FOR 10/21/2011 10:00 AM BEFORE HONORABLE JOEL H. SLOMSKY. 9/6/2011 ENTERED AND COPIES E−MAILED.(stwe, ) (Entered: 09/06/2011)
15 SETTLEMENT AGREEMENT by GARY ALEXANDER, DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTHOF PENNSYLVANIA. (KRAMER, BARRY) (Entered: 10/05/2011)
16 SETTLEMENT AGREEMENT WITH THE HONORABLE JUDGE JOEL H. SLOMSKY'S APPROVAL. (kk, ) (Entered: 10/19/2011)
17 STIPULATION of Dismissal by GARY ALEXANDER, KAREN LYN BLAKELY, DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTHOF PENNSYLVANIA, LYKEH MUMFORD, JOSEPH YALE. (MEEK, ROBERT) (Entered: 02/29/2012)


[CONTENT] three ||| Pennsylvania Medicaid's | Consolidated Waiver |||  |||  |||  |||  ||| One ||| the U.S. District Court | the Eastern District | Pennsylvania | May 20, 2011 ||| ADA | the Supreme Court | Olmstead v. L.C. ||| Section 504 of the Rehabilitation Act | 1973 | the Medicaid Act |||  ||| Two | three | third ||| Joel H. Slomsky | October 18, 2011 [SUMMARY] The plaintiffs in this case are three individuals with dual diagnoses of mental illness and intellectual disability. They receive services and support in order to remain in the community through Pennsylvania Medicaid's Consolidated Waiver program. After each plaintiff experienced a change in his/her condition (i.e. a specific episode caused by mental illness that necessitated increased care), the plaintiffs were briefly institutionalized in psychiatric hospitals. The disruption in services created a range problems when the plaintiffs sought to resume waiver services. The level of care offered under the waiver was allegedly insufficient, which put the plaintiffs at risk of future institutionalization. In addition, the plaintiffs faced numerous administrative challenges in securing services. One of the plaintiffs could not be discharged from an institutionalization without a promise of more extensive services than could be put in place under the waiver.

The plaintiffs filed suit in the U.S. District Court for the Eastern District of Pennsylvania on May 20, 2011. The complaint alleged that the state placed the plaintiffs at risk of unnecessary institutionalization in violation of the ADA under the Supreme Court precedent Olmstead v. L.C. The complaint also alleged violations of Section 504 of the Rehabilitation Act of 1973 and that the insufficient waiver services amount to violations of the Medicaid Act. 

Although the plaintiffs filed a motion for a temporary restraining order and preliminary injunction, the case was resolved before any decision was necessary.  Two of the three plaintiffs were moved to community placements with sufficient support services, while the state had taken some steps to ensure that the third plaintiff would be moved in a timely fashion.  Judge Joel H. Slomsky approved the parties' stipulation of dismissal and settlement on October 18, 2011. 