1 Elissa Gershon, State Bar No. 169741

Kimberly Swain, State Bar No. 100340
2 Elizabeth Zirker, State Bar No. 233487

3

PROTECTION & ADVOCACY, INC. 1330 Broadway, Suite 500

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

5 Facsimile: (510) 267-1201

Elissa.Gershon@pai-ca.org 6 Kim.Swain@pai-ca.org
Elizabeth.Zirker@pai-ca.org 7

Attorneys for Plaintiffs 8

[Complete list of counsel on following pages.] 9

,

,

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-"":.-

10

IN THE UNITED STATES DISTRICT COURT
11

FOR THE NORTHERN DISTRICT OF CALIFORNIA 12

MARK CHAMBERS, WOODROW FALLS, ) Case No.: C06-06346 WHA

13, JR., M. H., PHILLIP K., GERALD SCOTT, )

MARY T. and THE INDEPENDENT LIVING) FIRST AMENDED COMPLAINT FOR

14 RESOURCE CENTER OF SAN

) DECLARATORY AND INJUNCTIVE

FRANCISCO, et al.

) RELIEF

15

)

Plaintiffs,

)

16

) CLASS ACTION

v. )

17

)

CITY AND COUNTY OF

)

18 SAN FRANCISCO

)

)

19

Defendant.

)

------------)

20

21

22

23

24

25

26

27

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MARK CHAMBERS ET AL. V. CITY AND COUNTY OF SAN FRANCISCO; C06-06346 WHA
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Arlene Mayerson, State Bar No. 79310 Larisa Cummings, State Bar No. 131076 2 Silvia Yee, State BarNo. 222737 DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC. 3 2212 Sixth Street Berkeley, CA 94710 4 Telephone: (510) 644-2555 Facsimile: (510) 841-8645 5 amayerson@dredf.org Icummings@dredforg 6 syee@dredforg
7 Ira Bumim, Pro Hac Vice Jennifer Mathis, Pro Hac Vice
8 BAZELON CENTER FOR MENTAL HEALTH LAW 1101 _15th Street, N.W., Suite 1212
9 Washington, D.C, 20005-2002 Telephone: (202) 467-5730
10 Facsimile: (202) 223-0409 irab0lbazelon.org
11 jennifenn(m,bazelon.org
12 Bruce Vignery, Pro Hac Vice Dorothy Siemon, Pro Hac Vice
13 AARP FOUNDATION LITIGATION 601 "EO. Street, N. W., Bldg A4-170
14 Washington, DC 20049 Telephone: (202) 434-2060
15 Facsimile: (202) 434-2127 BVignery(m,aam.org
16 DSiemon(iVaanJ.org
17 Henry Su, State Bar No. 211202 Aaron Myers, State Bar No. 200145
18 HOWREY LLP 1950 University Avenue, 4th Floor
19 East Palo Alto, CA 94303 Telephone: (650) 798-3500
20 Facsimile: (650) 798-3600 Suh@howrey.com
21 Myersa@howrey.com
22 Joseph Song, State Bar No. 239494 HOWREYLLP
23 525 Market Street, Suite 3600 San Francisco, CA 94105
24 Telephone: (415) 848-4900 Facsimile: (415) 848-4999
25 Songi@howrey.com
26
27
28
MARK CHAMBERS ET AL. V. CITY AND COUNTY OF SAN FRANCISCO; C06-06346 WHA
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

PAGE NUMBER AND LINE
2

ADDITION

Page 4, Lines 3-6 3

INTRADISTRICT ASSIGNMENT 15. Pursuant to Civil L.R. 3-2(c), this action

4

should be assigned to the San Francisco Division of the Northern District of

5

California which serves the City and County

of San Francisco, in which the events or

6

omissions giving rise to the claims are

believed to have occurred. 7

8

Page 30, Lines 4-9

CERTIFICATION OF INTERESTED

9

ENTITIES OR PERSONS

132. Pursuant to Civil L.R. 3-16, the

10

undersigned certifies that as of this date,

October 12, 2006, other than the named

11

parties: Mark Chambers, Woodrow Falls Jr.,

M.H., Phillip K., Gerald Scott, Mary T., the

12

class of individuals defined in Paragraph 58

13

above represented by the named plaintiffs,

and the Independent Living Resource Center

14

of San Francisco, there is no such interest to

report. 15

F:\DOCS\LHH 2006\PLEADINGS\COMPLAINT\lst Amended Complamt\Flrsl amended complamt Chambers CaptlOo Page 10-12 06.doc

16

17

18

19

20

21

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23

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25

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MARK CHAMBERS ET AL. V. CITY AND COUNTY OF SAN FRANCISCO; C06-06346 WHA
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1

INTRODUCTION

2

1. Federal and state law require that people with disabilities who need long-term care

3 receive these services in the most integrated setting appropriate to their individual needs and that

4 they not be unnecessarily segregated and isolated in nursing homes. Instead, needed services must

5 be provided in a manner that enables people with disabilities to remain in or return to their home

6 communities if they so choose. The United States Supreme Court affirmed this right in Olmstead v.
7 L.c. ex rei. Zimring, 527 U.S. 581 (1999), which held that unnecessary institutionalization is a form

8 of illegal discrimination under the Americans with Disabilities Act (ADA). The Olmstead holding

9 requires that individuals with disabilities be provided services in community settings, instead of in

10 institutions, when the individuals are determined to be capable of, and do not oppose, community-

11 based treatment.

12

2. Plaintiffs, who are individuals with disabilities and need long-term care, bring this

13 case to challenge the City and County of San Francisco's (Defendant's) long-term care policies and

14 practices. Defendant's actions and omissions result in the unnecessary segregation and isolation of

IS Plaintiffs and class members at Defendant-owned and operated Laguna Honda Hospital and

16 Rehabilitation Center (Laguna Honda) in violation of the ADA (42 U.S.C.A. §§ 12101-12213 (West

17 2005», Section 504 of the Rehabilitation Act (Section 504) (29 U.S.C.A. §§ 794-794a (West 2006»,

18 and California Government Code section 11135 (CAL. GOV'T CODE § 11135 (West 2006».

19 Defendant is responsible for securing and/or providing a range of community-based, long-term care

20 services. Plaintiffs seek declaratory and injunctive relief to compel Defendant to provide Plaintiffs

21 and class members with timely access to the home and community-based long-term care services

22 which Defendant's own assessments have determined are the appropriate and preferred alternative to

23 institutionalization at Laguna Honda.

24

3. In a prior lawsuit, Davis et al. v. California Health and Human Services Agency, et al.

25 No. COO-2532-SBA (N.D. Cal.), Plaintiffs partially settled claims against Defendant with respect to

26 providing class members with information about long-term care options and conducting non-biased

27 assessments to Plaintiffs and class members to identify their care needs and preferences for

28

1

MARK CHAMBERS ET AL. V. CITY AND COUNTY OF SAN FRANCISCO; C06-06346 WHA

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTNE RELIEF

I community living. (See, Exhibit A, Settlement Agreement with San Francisco, approved March 31,

2 2004). Defendant has implemented these provisions of the settlement through establishment and

3 operation of the Targeted Case Management (TCM) Program, which is responsible for assessing and

4 developing discharge plans for all individuals who are placed in, or at risk of placement in, Laguna

5 Honda. Defendant was to have complied with the settlement by September 29,2004, but has

6 requested and received numerous stipulated extensions in order to fully meet its reporting and other

7 obligations under the settlement. Defendant's Motion for Compliance with the partial settlement is

8 due to be filed by April 1, 2007. (See Exhibit B, Stipulation and Order dated June 6,2006). The

9 parties stipulated that the June 2006 extension would not prejudice Plaintiffs' right to file the claims

10 herein regarding discharge and the provision of community-based long-term care services, which

II were not resolved in the previous case. (Exhibit B at 2:25-27).

12

4.

Plaintiffs bring this action at this time because Defendant continues to fail to divert

13 and/or discharge individuals from Laguna Honda even though assessments by its own professionals

14 unequivocally show that the vast majority of Laguna Honda's more than 1,000 residents are capable

15 of living, and prefer to live, in a more integrated setting. State Pre-Admission Screening and

16 Resident Review (PASRR) evaluations of Laguna Honda residents with psychiatric disabilities

17 concur with these findings.

18

5. According to Defendant's City Controller, "[t]he City has effectively institutionalized

19 more of its population, across a wider spectrum of needs, than anywhere in the country...

20 approximately one out of every 700 San Franciscans is living at Laguna Honda Hospital."

21 Defendant operates Laguna Honda at a cost of $180 million per year - up to $500 per person per

22 day - in local, state, and federal funds.

23

6. Reports and recommendations produced by Defendant, its consultant, and other

24 entities - including findings of ADA violations by the United States Department of Justice (DOJ)-

25 demonstrate that Plaintiffs and class members could be appropriately served in the community but

26 for Defendant's discriminatory practices. Defendant has ignored these reports and

27 recommendations, most notably by pursuing plans to rebuild Laguna Honda as a segregated facility

28

2

MARK CHAMBERS ET AL. V. CITY AND COUNTY OF SAN FRANCISCO; C06-06346 WHA

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 with up to 1,200 beds and failing to make the recommended modifications to its community-based

2 long-term care system. Construction of the new Laguna Honda institution will cost taxpayers over

3 $600 million - more than $500,000 per bed.

4

7. By its conduct, Defendant denies Plaintiffs and class members the community long-

5 term care alternatives that should otherwise be available to them, including personal care services,

6 nursing and medical care, assistance with meals, case management, mental health and substance

7 abuse treatment, and other medically necessary services, as well as affordable, accessible housing.

8 Defendant's discriminatory practices, including methods of administration, funding and policy

9 priorities, and failure to make reasonable modifications in its programs and policies to prevent the

10 unnecessary isolation and segregation of Plaintiffs and class members, violate the ADA's

11 "integration mandate."

12

JURISDICTION

13

8. This action is brought pursuant to the Americans with Disabilities Act. 42 U.S.C. §§

14 12101-12213.

15

9. Defendant is a public entity subject to Title II of the Americans with Disabilities Act.

16 42 U.S.C. §§ 12131-12134.

17

10. This action is brought pursuant to The Rehabilitation Act of 1973 § 504. 29 U.S.C.

18 §§ 794-794a.

19

11. Defendant is a recipient offederal funds and is therefore subject to Section 504. 29

20 U.S.c. §§ 794-794a.

21

12. This Court has jurisdiction to decide Plaintiffs' action for declaratory relief pursuant

22 to 28 U.S.C.A. §§ 1331 and 1343(a)(3) (West 2006). This Court also has jurisdiction over Plaintiffs'

23 action for declaratory relief pursuant to 28 U.S.C.A. § 2201 (West 2006) and Rule 57 of the Federal

24 Rules of Civil Procedure. Injunctive relief is authorized by 28 U.S.C.A. § 2202 (West 2006) and

25 Rule 65 ofthe Federal Rules of Civil Procedure.

26

13. The Court has supplemental jurisdiction over Plaintiffs' state claim pursuant to

27 28 U.S.C.A. § 1367 (West 2006).

28

3

MARK CHAMBERS ET AL. V. CITY AND COUNTY OF SAN FRANCISCO; C06-06346 WHA

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

14. Venue is proper in this Court because Defendant is located in, maintains an office in,

2 and/or enforces the laws relevant to this litigation in the Northern District of California.

3

INTRADISTRICT ASSIGNMENT

4

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

5 Division of the Northern District of California which serves the City and County of San Francisco,

6 in which the events or omissions giving rise to the claims are believed to have occurred.

7

PARTIES

8

Organizational Plaintiff

9

16. The Independent Living Resources Center San Francisco (ILRCSF) is a non-profit

10 organization providing a range of services and programs for San Franciscans with disabilities,

11 including class members. The ILRCSF's mission is to empower people with disabilities to achieve

12 full economic and social participation in the mainstream of society and to promote opportunities for

13 independence, self-direction and freedom of choice. Defendant's actions and failures to act impede

14 the ILRCSF's ability to carry out its mission and assist people with disabilities and members of the

15 Plaintiff class in accessing services to support independent living choices. The ILRCSF receives

16 federal and state funding and must file annual reports with the federal Rehabilitation Services

17 Administration, which sets performance goals and imposes reporting requirements related to the

18 percentage of clients whom the ILRCSF assists in moving from institutions to community settings.

19 Defendant's actions compromise the ILRCSF's ability to fulfill its federal and state responsibilities,

20 which results in potential noncompliance with its mandate. The ILRCSF has had to divert scarce

21 resources from its usual education, advocacy, counseling, and referral services to Laguna Hospital

22 residents, to investigation of Defendant's actions and inactions and efforts to counteract them.

23

Individual Plaintiffs

24 Mark Chambers

25

17. Mark Chambers is a 47-year-old man who has been at Laguna Honda for over six

26 years. He was admitted in 1999 after a severe head injury, which resulted in traumatic brain injury

27 (TBI) and a seizure disorder. Mr. Chambers uses a wheelchair and a computerized communication

28

4

MARK CHAMBERS ET AL. V. CITY AND COUNTY OF SAN FRANCISCO; C06-06346 WHA

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

I device; although he is able to speak, due to his TBI he is aphasic and difficult to understand.

2 Before his injury he worked in San Francisco as a computer systems manager.

3

18. Mr. Chambers desires discharge to a community living setting in San Francisco. In

4 2003, Laguna Honda staff identified the following services he needs to live in the community:

5 housing, meals, nursing care, transportation, rehabilitation services, adult day care, case

6 management, medication management, part-time personal care services, and substance abuse

7 treatment.

8

19. Mr. Chambers is desperate to leave Laguna Honda and be part of the outside world.

9 He has many interests, including photography and astronomy, and, while living at Laguna Honda,

10 has had volunteer jobs at Glide Memorial Church and the San Francisco Public Library.

11

20. Mr. Chambers' Laguna Honda treatment team recommended that he be discharged

12 to the community with supportive services. The TCM program has assessed him as eligible for

13 discharge.

14

21. Despite his stated preference to leave, Mr. Chambers remains at Laguna Honda. All

15 of the supports and services identified by Defendant in order for Mr. Chambers to live in a more

16 integrated setting are available, or can be provided with reasonable modifications to Defendant's

17 programs and/or policies.

18 Woodrow Falls, Jr.

19

22. Woodrow Falls, Jr. is a 56-year-old man who was first admitted to Laguna Honda in

20 1997 because of multiple strokes. Mr. Falls is HIV-positive, has a seizure disorder, is hemiplegic as

21 a result of his strokes, and uses a wheelchair. Mr. Falls requires assistance with transfers and

22 personal care and has difficulty communicating; however, when given adequate time, he can express

23 himself.

24

23. Mr. Falls desires to leave Laguna Honda and live in the community.

25

24. Several assessments from Laguna Honda indicate that Mr. Falls is capable of living in

26 the community. In July 1999, Laguna Honda staff determined that Mr. Falls had "good" potential

27 for rehabilitation. Assessments in 2002 and 2003 indicate that Mr. Falls could "potentially live in

28

5

MARK CHAMBERS ET AL. V. CITY AND COUNTY OF SAN FRANCISCO; C06-06346 WHA

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

some assisted living situation," and that he "could consider community discharge with services." A

2 2004 "Discharge Assessment" report stated that with the following resources, Mr. Falls could be

3 cared for outside of Laguna Honda: meals, transportation, adult day care, psychiatric care, substance

4 abuse services, case management, medication management, 24-hour personal care services, age-

5 appropriate setting, and housing.

6

25. Mr. Falls' May 2006 evaluation by a state-contracted psychiatrist (PASRR Level II)

7 recommended that he be considered for a variety of services in an alternative placement including:

8 mental health services, targeted case management, medication support services, adult day health

9 care, physical and occupational therapy, personal care services, meal assistance, and AIDS waiver

10 services provided by the State.

11

26. Mr. Falls has demonstrated that he is capable ofliving independently in the

12 community. He regularly takes trips by himself to San Francisco with passes from Laguna Honda.

13 Mr. Falls has even attended community college classes at City College of San Francisco while

14 residing at Laguna Honda.

15

27. Despite his stated preference to leave, Mr. Falls remains at Laguna Honda. All of the

16 supports and services identified by Defendant and State evaluators in order for Mr. Falls to live in a

17 more integrated setting are available, or can be provided with reasonable modifications to

18 Defendant's programs and/or policies.

19 M. H.

20

28. M.H. is a 40-year-old man with a history of multiple admissions to Laguna Honda as

21 early as 1997. He was most recently admitted to Laguna Honda in September 2005 from San

22 Francisco General Hospital (SFGH) after treatment there for depression and suicidal ideation. He

23 has advanced AIDS and uses a wheelchair due to avascular necrosis of the hips.

24

29. M.H. was previously able to walk with crutches, but his hips have deteriorated to the

25 point that he mainly uses a wheelchair to ambulate. In addition, he needs assistance with personal

26 care and medication management.

27

30. M.H. has repeatedly expressed a desire to leave Laguna Honda and live in San

28

6

MARK CHAMBERS ET AL. V. CITY AND COUNTY OF SAN FRANCISCO; C06-06346 WHA

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 Francisco in a community setting.

2

31. Assessments from Laguna Honda show that M.H. is capable ofliving in the

3 community. M.Ho's September 20,2005 "Admission Assessment" indicated that he could be

4 discharged to "more independent but structured" community housing in the future. A Laguna Hond

5 discharge assessment from a previous stay at Laguna Honda, dated November 18, 2004,

6 recommended independent community housing, nursing care, psychiatric care, substance abuse

7 services, case management, and medication management as resources needed to support M.H.

8 outside of Laguna Honda.

9

32. TCM assessments also show that M.H. desires and is capable ofliving in the

10 community with appropriate supports. His TCM case manager has identified a number of services

11 he would need to live in the community, including paratransit services, personal care services, case

12 management, housing, and meals on wheels.

13

33. Most recently, M.Ho's May 2006 evaluation by a state-contracted psychiatrist

14 (PASRR Level II) concluded that M.H. did not have a physical condition that appeared to require his

15 continued stay in a nursing facility.

16

34. The PASRR evaluation documented M.H. 's current preference to live in a

17 community setting and recommended community placement for M.H. with psychotropic medication

18 education and monitoring, individual psychotherapy, substance abuse treatment, day treatment

19 rehabilitation, personal care services, and peer counseling.

20

35. During August and September of2006, M.H. traveled independently to Chicago and

21 spent almost three weeks visiting his mother there.

22

36. Despite his stated preference to leave, M.H. remains at Laguna Honda. All of the

23 supports and services identified by Defendant and State evaluators in order for M.H. to live in a

24 more integrated setting are available, or can be provided with reasonable modifications to

25 Defendant's programs and/or policies.

26 Phillip K.

27

37. Phillip K. is a 62-year-old man with a history of admissions to Laguna Honda. In

28

7

MARK CHAMBERS ET AL. V. CITY AND COUNTY OF SAN FRANCISCO; C06-06346 WHA

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 July 2005, he came to Laguna Honda from SFGH, where he had been admitted in June 2005 for

2 treatment for a right hip fracture. Phillip K. has severe gastroesophageal reflux disease, a

3 tracheostomy, a gastronomy tube for feeding, and a diagnosis of mild organic brain disease and

4 psychosis. He also has a history of substance abuse. His physical and mental disabilities require

5 careful monitoring of his food intake, as well as assistance with personal care, ambulation, and the

6 management of his medication.

7

38. In his "Social History Assessment" of July 19,2005, Phillip K.'s stay at Laguna

8 Honda is listed as "short term" and his discharge potential as "fair." His recommended discharge

9 destination is to "disabled subsidized housing with appropriate services."

10

39. Phillip K. has repeatedly stated a desire to be discharged from Laguna Honda. In a

11 meeting in January 2006, his discharge planning team noted his participation in the TCM Program,

12 and the areas of his care that needed to be addressed prior to discharge. According to Laguna

13 Honda and TCM staff, Phillip K. would need supportive housing, senior-focused case management,

14 home health services, adult day health care, transportation services, personal care services, and

15 home-and community-based waiver services administered by the state.

16

40. Despite Mr. K's stated preference to leave, he remains at Laguna Honda. All of the

17 supports and services identified by Defendant in order for Phillip K. to live in a more integrated

18 setting are available, or can be provided with reasonable modifications to Defendant's programs

19 and/or policies.

20 Gerald Scott

21

41. Plaintiff Gerald Scott is a 53-year-old man who has lived at Laguna Honda for over

22 26 years. He was a named plaintiff in the Davis v. CHHSA lawsuit. Mr. Scott was disabled by an

23 assault, which caused brain damage, quadriplegia, and a seizure disorder. He uses an electric

24 wheelchair to assist with mobility, and he has limited use of the right side of his body.

25

42. Due to his disabilities, Mr. Scott requires substantial assistance with transferring in

26 and out of his wheelchair, medication, money management, independent living skills, and personal

27 care, including toileting, bathing, and dressing.

28

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MARK CHAMBERS ET AL. V. CiTY AND COUNTY OF SAN FRANCISCO; C06-06346 WHA

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1

43. In the years that Mr. Scott has been at Laguna Honda, numerous assessments have

2 shown him to be able to, and prefer to, live in the community with specified supports, including

3 personal care services and accessible housing.

4

44. The TCM program created a discharge plan for Mr. Scott in May 2004 that

5 recommended 24-hour personal care services, adult day care, accessible housing, case management

6 and peer mentoring.

7

45. Mr. Scott continues to want to leave Laguna Honda and would do so if appropriate

8 services were available to him. All of the supports and services identified by Defendant in order for

9 Mr. Scott to live in a more integrated setting are available, or can be provided with reasonable

10 moditications to Defendant's programs and/or policies.

11 Mary T.

12

46. Mary T. is a 52-year-old woman who was admitted to Laguna Honda in December

13 2005. She has five children, one of whom is a current resident of Laguna Honda as well. Mary T.

14 came to Laguna Honda from SFGH where she was admitted for stomach pain and weakness. Mary

15 T. has AIDS and has had a number of strokes, which require her to use a cane for balance. Due to

16 her continued disabilities, Mary T. needs assistance with medication monitoring, personal care,

17 money management, shopping, and transportation.

18

47. In her initial "Resident Social History Assessment," Mary T.'s social worker reported

19 Mary T.'s desire to leave Laguna Honda, and stated her discharge potential as "good" and her stay as

20 "short term." Similarly, the "History and Physical Examination" performed at Mary T. 's admission

21 to Laguna Honda stated that, "She will probably be able to be discharged from Laguna Honda

22 possibly, but only in several months."

23

48. From the moment she arrived at Laguna Honda through today, Mary T. has

24 consistently expressed a desire to leave Laguna Honda.

25

49. Mary T. has been working with a TCM case manager since she was accepted into the

26 program at the beginning of March 2006. Her TCM Linkage plan lists a number of services she

27 needs in the community, including case management, supportive housing, home health care,

28

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MARK CHAMBERS ET AL. V. CITY AND COUNTY OF SAN FRANCISCO; C06-06346 WHA

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INruNCTIVE RELIEF

I vocational rehabilitation, and transportation assistance. At a June 2, 2006 meeting, her discharge

2 planning team agreed that she no longer needs to remain in a skilled nursing facility and identified a

3 need for substance abuse counseling and primary health care, as well as representative payee

4 services.

5

50. Despite Mary T.'s stated preference to leave, she remains at Laguna Honda. All of

6 the supports and services identified by Defendant in order for Mary T. to live in a more integrated

7 setting are available, or can be provided with reasonable modifications to Defendant's programs

8 and/or policies.

9

Defendant

10

5l. Defendant is the entity responsible for administration of the Medi-Cal program in the

11 City and County of San Francisco, including, but not limited to, Medi-Cal funded specialty mental

12 health services and targeted case management.

13

52. Defendant owns, operates, and subsidizes Laguna Honda Hospital and Rehabilitation

14 Center and San Francisco General Hospital.

15

53. Defendant is responsible for administering long-term care services for San Francisco

16 residents, including through its Department ofpublic Health, Department of Aging and Adult

17 Services, Department of Human Services, and Mayor's Office on Housing.

18

54. Defendant is responsible for referring eligible individuals to, administering,

19 contracting for, funding, and/or directly providing community-based long-term care services,

20 including housing, in San Francisco.

21

55. Defendant receives federal financial assistance to provide long-term care services at

22 Laguna Honda and in the community, such as Medi-Cal and various federal housing monies.

23

56. Defendant receives State financial assistance to provide long-term care services at

24 Laguna Honda and in the community, such as Medi-Cal, various State housing monies, and State

25 General Fund dollars.

26

57. Defendant receives and allocates various local monies, including tobacco litigation

27 settlement funds, to provide health care services, including long-term care services, to its residents.

28

10

MARK CHAMBERS ET AL. V. CITY AND COUNTY OF SAN FRANCISCO; C06-06346 WHA

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1

CLASS ACTION ALLEGATIONS

2

58. Plaintiffs bring this action on behalf of a class consisting of all adult Medi-Cal

3 beneficiaries who:

4

a. are or will become residents of Laguna Honda Hospital and Rehabilitation

5

Center, or

6

b. are or will be on waiting lists for Laguna Honda Hospital and Rehabilitation

7

Center; or

8

c. are or will be within two years of discharge from Laguna Honda Hospital and

9

Rehabilitation Center; or

10

d. are or will become patients at San Francisco General Hospital or other

11

hospitals owned or controlled by the Defendant, who are eligible for discharge

12

to Laguna Honda Hospital and Rehabilitation Center.

l3

59. A class of this definition was certified in Davis v. CHHSA by Order dated June 12,

14 2002. Pursuant to the Davis settlement terms, Defendant agreed to waive all objections to class

15 certification provided that claims are filed within one year of the Court's ruling on Defendant's

16 motion for compliance with the prior lawsuit, due to be filed by April 1, 2007. Exh. A at ~ 8.1.

17

STATUTORY FRAMEWORK

18

Anti-Discrimination Laws

19

60. On July 26,1990, President George H.W. Bush signed into law the Americans with

20 Disabilities Act (ADA), 42 U.S.C. §§ 12101-122l3, establishing the most important civil rights law

21 for persons with disabilities in our nation's history.

22

61. In enacting the ADA, Congress was particularly concerned about the unnecessary

23 segregation and institutionalization of people with disabilities and the resulting lack of full

24 participation in and access to community services and activities. 42 U.S.C. §§ 12101(a)(2), (a)(5),

25 (a)(8).

26

62. Title II of the ADA prohibits public entities, such as Defendant, from discriminating

27 against the individuals with disabilities that they serve. 42 U.S.C. §§ 12l31-32. "Discrimination" as

28

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MARK CHAMBERS ET AL. V. CITY AND COUNTY OF SAN FRANCISCO; C06-06346 WHA

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

I defined by the ADA includes the segregation of persons with disabilities from society as a result of

2 unnecessary institutionalization. 42 U.S.C. § 12101.

3

63. The regulations promulgated under Title II specifically provide that "a public entity

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

5 needs of qualified individuals with disabilities." 28 C.F.R. § 35.l30(d) (2006). The regulations also

6 specify a variety of requirements aimed at ensuring nondiscrimination, including the provision of

7 access, modification of practices and policies, and the provision of auxiliary aids and services. The

8 regulations prohibit Defendant from administering programs in a discriminatory manner.

9 28 C.F.R. Part 35.

10

64. The United States Supreme Court in Olmstead v. L.C ex rei. Zimring, 527 U.S. 581

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

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

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

14 Defendant determines that community-based treatment is appropriate; 2) the individual does not

15 oppose community placement; and, 3) community placement can be reasonably accommodated. 527

16 U.S. at 607.

17

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

18 forth similar protections against discrimination by recipients of federal funds, such as Defendant

19 herein. These protections include the prohibition against unnecessary segregation. 29 U.S.C. §§

20 794-794a.

21

66. Likewise, California's non-discrimination statute prohibits, and provides civil

22 enforcement rights against, unnecessary institutionalization by entities receiving State funds, such as

23 Defendant. CAL. GOV'T CODE §§ 11135-11139 (West 2006).

24

Medi-Cal

25

67. The federal Medicaid statute, at 42 U.S.C.A §§ 1396-1396v (West 2006), establishes

26 a cooperative federal-state medical assistance program designed to provide necessary medical

27 services to low-income people. Known as "Medicaid," the prdgram is administered by the states,

28

12

MARK CHAMBERS ET AL. V. CITY AND COUNTY OF SAN FRANCISCO; C06-06346 WHA FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 which are required to follow federal statutory and regulatory guidelines. California's plan for

2 medical assistance under the federal Medicaid statute is known as Medi-Cal, and is set forth in the

3 Welfare and Institutions Code. CAL. WELF. & INST. CODE §§ 14000-14685 (West 2006).

4

68. The Medi-Cal State Plan provides payments for a variety of services such as nursing

5 facility care, acute hospital care, personal care services (PCSP), and home health care. CAL. HEALTH

6 & SAFETY CODE § 1250(a),(c) (West 2006); CAL. WELF. & INST. CODE § 14132.95; CAL. CODE

7 REGS. tit. 22 § 51337 (2006). Medi-Cal State Plan services are available to persons with disabilities

8 in the community as an entitlement: if individuals meet the eligibility criteria for receipt of the

9 services, including the requirement that the services be medically necessary, then they have a right to

10 receive them with reasonable promptness. 42 U.S.C.A § 1396a(a)(8).

11

69. Medi-Cal funded targeted case management services are available in San Francisco to

12 persons who are at high risk for institutionalization, who have language or comprehension barriers,

13 who lack community support, or who are in frail health and in need of assistance to gain access to

14 services and prevent institutionalization. CAL. CODE REGS. tit. 22 § 51365 (2006). Defendant is

15 obligated to commit local matching funds to provide targeted case management to all eligible

16 individuals.

17

70. San Francisco is also responsible for delivering Medi-Cal funded comprehensive

18 Specialty Mental Health services, and other mental health services, to eligible individuals. CAL.

19 WELF. & INST. CODE §§ 14680-14685 and implementing regulations; CAL. WELF. & INST. CODE §§

20 5600-5898 (West 2006).

21

71. In addition to Medi-Cal State Plan services, federal law allows the federal

22 government to waive certain provisions of federal Medicaid law in order to allow states to provide

23 home and community-based services in lieu of institutional care, for qualifYing individuals.

24 42 U.S.C. § 1396n(c)(l). These programs are known as "Home and Community-Based Waivers"

25 and they offer a broad range of community-based long-term care services, such as personal care

26 assistance, nursing care, home modifications, and habilitation. CAL. CODE REGS. tit. 22 §§ 51173.1,

27 51176 (2006).

28

13

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FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTNE RELIEF

1

STATEMENT OF FACTS

2

Davis Lawsuit

3

72. In July 2000, 10 residents of Laguna Honda and the ILRCSF filed a class action

4 lawsuit in this Court, Davis et at. v. California Health and Human Services Agency et at., No. COO-

5 2532-SBA, alleging that Defendant and State Defendants Health and Human Services Agency, and

6 Departments of Health Services, Aging, Social Services and Mental Health had violated the rights of

7 Plaintiffs and class members by failing to inform them of, assess them for, and provide them with,

8 appropriate home and community based long-term care services in lieu of placement at Laguna

9 Honda. That case was partially settled with Defendant and the State Defendants in March 2004 and

10 the entire case was dismissed without prejudice.

11

73. During the Davis lawsuit, the parties agreed to bifurcate the case in order to attempt

12 to settle only the claims regarding information about and assessment for home and community-based

13 long-term care services. A final settlement was achieved after almost two years of good faith

14 negotiations, during which time the remaining claims regarding discharge to the community and

15 provision of community-based long-term care services were not litigated or settled. Pursuant to the

16 settlement, the Court retained jurisdiction for the limited purposes of enforcing Defendant's

17 reporting obligations under the settlement and to preside over Defendant's Motion for Compliance

18 with the settlement terms (See Exhibit A at '\l2.2.2). Defendant San Francisco agreed to waive all

19 objections to class certification in the present case provided that claims herein are filed within one

20 year of the Court's ruling on Defendant's Motion for Compliance with the claims settled in the

21 Davis lawsuit, due to be filed by April 1, 2007. (Exhibit A at '\l8.1). Pursuant to the parties'

22 stipulation to extend Defendant's time1ine for compliance, Plaintiffs reserved the right to file the

23 claims herein regarding discharge and provision of community-based long-term care services, at any

24 time. (Exhibit Bat '\l2:25-27).

25

74. The settlement with the State Defendants provided that Defendant Department of

26 Mental Health revamp its assessment of Laguna Hospital residents with psychiatric disabilities

27 through the Pre-Admission Screening and Resident Review (PASRR) process to include a

28

14

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FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTNE RELIEF

1 determination of the most integrated setting appropriate for those individuals and the services

2 necessary for such individuals to live outside of Laguna Honda. State Defendants have fully

3 complied with the settlement and relevant claims have been dismissed with prejudice. The results of

4 the state assessments show that of 166 Laguna Honda residents assessed between October 2004 and

5 August 2006:

6

•

Approximately 80 percent of Laguna Honda's residents with psychiatric disabilities

7

were determined to qualifY for placement in a nursing facility but were also

8

recommended for consideration for community placement, using an array of

9

recommended home and community-based services and supports;

10

•

Approximately 20 percent of residents with psychiatric disabilities evaluated were

II

determined to be inappropriate for skilled nursing facility placement altogether and

12

were recommended for alternative community placement;

13

•

Of those residents with preferences recorded, approximately 60 percent expressed a

14

preference to live in a community alternative to nursing facility care.

15

75. Pursuant to the settlement with Plaintiffs, Defendant has developed and operates the

16 Targeted Case Management Program (TCM), which is responsible for assessing and creating

17 discharge plans for all current and potential Laguna Honda residents, as well as providing case

18 management for class members who are determined to be capable of discharge within 180 days.

19 TCM is independent from Laguna Honda and is operated under the auspices of Defendant's

20 Department of Public Health. TCM case managers are social workers and nurses who are specially

21 trained and experienced in community living for seniors and people with disabilities. TCM uses an

22 assessment and discharge plarming instrument that was developed specifically for use with Laguna

23 Honda residents. TCM has, to date, assessed and reassessed all current residents of Laguna Honda,

24 and has assessed all new admittees, either prior to or soon after admission.

25

76. According to TCM assessments, the vast majority of the over 1,000 Laguna Honda

26 residents could live at home or in the community if housing and appropriate services were provided

27 to them. TCM assessments also show that, at the time of assessment, half of all class members have

28

15

MARK CHAMBERS ET AL. V. CiTY AND COUNTY OF SAN FRANCISCO; C06-06346 WHA

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTNE RELIEF

I stated that they would prefer to live in the community rather than at Laguna Honda; during discharge

2 planning, 70 percent have indicated a preference to return to the community.

3

77. TCM has identified numerous barriers to timely discharge from Laguna Honda,

4 including access to services, which, if efficiently and reasonably made available to Plaintiffs and

5 class members, would enable them to leave Laguna Honda. These service include: I) appropriate

6 housing, including supportive housing for clients who have multiple diagnoses such as mental

7 illness, physical disabilities and substance abuse problems, physically accessible board and care

8 homes that accept clients who receive 5SI, low-income independent housing, and housing for

9 individuals under age 62; 2) intensive case management (i.e., at least weekly visits or as needed); 3)

10 substance abuse services; 4) transportation; 5) home-delivered meals; and 6) representative payee

11 programs for individuals who need assistance managing their money. Many individuals who have

12 been assessed to be capable of, and who would prefer, community living, remain at Laguna Honda

13 due to Defendant's failure to provide directly, contract for, or link Plaintiffs and class members to

14 the needed services identified by TCM. Problems in Defendant's long-term care system, such as

15 poor coordination between programs, fragmented information systems, and an inadequate database

16 of housing stock further impede the ability of TCM case managers to discharge Laguna Honda

17 residents in a timely fashion.

18

78. Moreover, Defendant's discriminatory practices and failures prevent the TCM

19 program from achieving its potential and hinder the ability of eligible individuals to receive the

20 targeted case management services to which they are entitled. First, in order to qualify for TCM

21 case management, individuals must have a likelihood of being discharged from Laguna Honda

22 within 180 days. Due to Defendant's failure to make housing and community-based services

23 available in a timely way, medically stable class members who could otherwise be discharged within

24 180 days are denied TCM because the housing and services they would need to be discharged are

25 not available in that time period (e.g., waitlists for subsidized housing and other needed services

26 often exceed 180 days). This creates a vicious cycle-the right to receive community services is

27 undermined by the illegal failure to provide access to community services.

28

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FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

I

79. Second, despite its obligation to provide Medi-Cal funded targeted case management

2 to all eligible individuals, Defendant has elected to provide this service primarily through its TCM

3 program, which does not offer ongoing community-based targeted case management. Thus, while

4 many class members are eligible for, and entitled to, Medi-Cal funded ongoing intensive case

5 management in the community after they are discharged, Defendant fails to provide this service that

6 many class members need in order to transition successfully to, and remain in, the community.

7

80. Third, due to the limited number ofTCM staff, TCM currently has a waitlist of

8 approximately 75 Laguna Honda residents who have been detennined to be likely to be able to be

9 discharged within 180 days, but for whom no TCM case manager is available. The results of

10 Defendant's failures are that TCM has discharged only a fraction of class members whom it has

II detennined to be eligible for community placement and that many qualified class members continue

12 to languish in the institution.

13

Laguna Honda

14

81. Laguna Honda Hospital and Rehabilitation Center was founded in 1866 as a Poor

15 House. It is owned and operated by Defendant. The main building houses almost 1,000 residents

16 while Clarendon Hall houses approximately 140 residents. Most residents of the main building live

17 in large, open wards with as many as 37 residents sleeping in close quarters, separated only by

18 hospital curtains. Laguna Honda is licensed for 1,214 skilled-nursing facility beds and 243 acute

19 care beds. In 1997, Defendant was forced to lower the census to a maximum of 1,065 by the federal

20 Centers for Medicare and Medicaid Services (CMS), which have repeatedly cited Laguna Honda for

21 standard of care deficiencies and threatened to withdraw federal funding. In February 2006, the

22 State Department of Health Services issued a 274-page statement of deficiencies against Laguna

23 Honda, finding that the facility is providing substandard care.

24

82. In comparing the demographic characteristics of Laguna Honda residents with those

25 of San Francisco County in general, they are disproportionately low-income and African-

26 American-approximately 38 percent are Caucasian, 25 percent are African-American, 22 percent

27 are Asian, and 13 percent are Hispanic. By comparison, the overall population of San Francisco

28

17

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FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTNE RELIEF

1 County is 56 percent Caucasian and 7.6 percent African-American. At least 95 percent of residents

2 are Medi-Cal eligible or indigent, while only 12 percent of the overall population of San Francisco

3 lives below the poverty level. Almost 50 percent of Laguna Honda residents are below 70 years of

4 age; 13 percent are younger than 50 years. Over 40 percent of residents have only physical

5 functioning needs, requiring primarily unskilled personal care services; only three percent have

6 "extensive special care" needs.

7

83. Over 50 percent of admissions to Laguna Honda come from San Francisco General

8 Hospital, also owned and operated by Defendant. In 2005, 580 individuals were admitted to Laguna

9 Honda, up from 529 in 2001. Defendant has not reduced the census at Laguna Honda from

10 approximately 1,030 - 1,040 residents, despite continually escalating costs to operate the facility.

11 Defendant actively works to maintain Laguna Honda at its maximum capacity.

12

84. State, federal and local funds pay for services at Laguna Honda. Medi-Cal is the only

13 health insurance for approximately 95 percent of Laguna Honda residents. Laguna Honda is a

14 "distinct part" skilled-nursing facility, meaning that it must either have some acute care beds or

15 operate under the license of an acute care facility. As a distinct part skilled-nursing facility, Laguna

16 Honda receives a daily rate of at least $271 per person per day from State and federal Medi-Cal

17 funds. In addition, Defendant pays approximately $130 per person per day out of its General Fund,

18 making the total cost of care at Laguna Honda more than $180 million per year - almost $500 per

19 day per resident. Defendant's General Fund subsidy to Laguna Honda has skyrocketed in recent

20 years, from approximately $30 million in 2004-05 to approximately $48.7 million in 2006-07.

21

85. Laguna Honda consumes approximately 15 percent of Defendant's total Department

22 of Public Health (DPH) budget while serving only one percent of the total number of recipients that

23 are served by DPH's Community Health Network annually. Laguna Honda utilizes approximately

24 44 percent ofDPH's Medi-Cal funds.

25

Building a New Institution

26

86. In response to the 1997 CMS citations, Defendant, in the 1999 election, placed on the

27 ballot and San Francisco voters passed, Proposition A, which allowed Defendant to incur bonded

28

18

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FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTNE RELIEF

1 debt in an amount not exceeding $299 million for the "acquisition, improvement, construction and/o

2 reconstruction of a new health care, assisted living and/or other type of continuing care facility or

3 facilities" to replace the aging and outmoded Laguna Honda facility. Defendant decided that, to

4 implement Proposition A, it would use the first $100 million of tobacco settlement monies received

5 by the City, with the exception of $1 million to be set aside each year for smoking education and

6 prevention programs, to pay for a new Laguna Honda Hospital built on the current campus, with any

7 remaining tobacco settlement monies received by the City to be used to offset the cost to property

8 owners ofrepaying the bonds. As of May 2005, Defendant had received at least an additional,

9 unrestricted $92 million in tobacco funds that could be earmarked for home and community-based

10 long-term care services, according to the City Controller.

11

87. Defendant is free to use the Proposition A funds to build small, community-based

12 facilities in lieu of rebuilding Laguna Honda. On March 30, 2005, at Defendant's urging, Judge

13 James L. Warren of the San Francisco Superior Court issued a decision holding that, "[n]othing in

14 the Proposition A "bond contract" limits the type of facility the City must construct to a "long tenn

15 care facility." Moreover, nothing in the Proposition A "bond contract" requires the City to construct

16 a facility ofa specific size. Monette-Shaw v. San Francisco Board o/Supervisors, San Francisco

17 Superior Court Case No. CPF 04-504777, affirmed, Monette-Shaw v, San Francisco Bd. 0/
18 Supervisors, 139 Cal.App.4th 1210,43 Cal.Rptr.3d. 659 (Cal. Ct. App, 1st Dist., May 26, 2006).

19

88. Nonetheless, Defendant has developed plans for constructing a 1,200-bed skilled

20 nursing facility on the Laguna Honda campus, and has approved funding for the construction of at

21 least 780 of those beds.

22

Investigation by U.S. Department of Justice

23

89. In April 2003, the United States Department of Justice (DOJ) issued a letter of

24 findings against Defendant for violations of the ADA with respect to its administration of Laguna

25 Honda. The letter concluded that "a significant number of Laguna Honda residents are

26 unnecessarily isolated in the nursing home," and that "the City continues to be in violation of the

27 ADA and continues to fail to ensure that Laguna Honda residents are being served in the most

28

19

MARK CHAMBERS ET AL. V. CITY AND COUNTY OF SAN FRANCISCO; C06-06346 WHA

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

I integrated setting appropriate to meet their needs."

2

90. The DOJ ordered Defendant to implement remedial measures, including: I)

3 expanding community-based services (specifically, residential services for individuals with mental

4 health or substance abuse disorders, housing and housing supports, housing and residential programs

5 for individuals who have physical as well as mental disabilities, assertive community treatment,

6 vocational services and day treatment options); 2) conducting a needs assessment of Laguna Honda

7 residents to "reconsider the need to rebuild 1,200 beds at Laguna Honda Hospital and review the

8 City budget to determine how to allocate funds appropriately to ensure that Laguna Honda residents

9 are not unnecessarily isolated;" and 3) creating and maintaining an inventory of housing options in

10 San Francisco that will be utilized by Laguna Honda residents.

II

91. To date, the required remedial measures have not been implemented.

12

DEFENDANT'S FAILURE TO PROVIDE COMMUNITy-BASED LONG-TERM CARE SERVICES

13

92. Defendant has produced or commissioned numerous studies and reports that identify

14 many reasons that individuals such as Plaintiffs and class members become or remain

IS institutionalized, and recommendations for changes that Defendant can make to its programs and

16 policies to enable them to be served in the community. Despite this consensus by experts, Defendan

17 has failed to develop a plan to allocate its resources with an even hand and implement a genuine,

18 comprehensive effort to place eligible individuals in the community. Rather, Defendant knowingly

19 continues to institutionalize individuals whom it has assessed as not needing to remain at Laguna

20 Honda.

21

93. In 1999, the San Francisco Board of Supervisors passed a resolution which found that

22 "current funding oflong term care services is primarily focused on institutional care and does not

23 adequately address the needs of those individuals who do not want or need institutional care or for

24 whom home or non-institutional care is more appropriate and cost effective."

25

94. In 2001, the Board of Supervisors passed a resolution to establish the San Francisco

26 Hospital Discharge Planning Task Force, and adopted, in December 2003, the Task Force

27 recommendations, which included improving coordination of services, centralizing information

28

20

MARK CHAMBERS ET AL. V. CITY AND COUNTY OF SAN FRANCISCO; C06-06346 WHA

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 systems to facilitate discharge planning, and expanding community-based services. Defendant has

2 not implemented these recommendations.

3

95. In 2002, San Francisco's Legislative Analyst Office found that San Francisco's

4 community-based long-term care system is "decentralized" and that there is evidence demonstrating

5 that it is "fragmented, uncoordinated, and not consumer-friendly." Subsequent reports demonstrate

6 that these problems continue.

7

96. The Living with Dignity Policy Committee was established to provide guidance to th

8 Department of Aging and Adult Services, as well as to DPH and the Department of Human Services,

9 for planning and implementation of improvements in the long term care system for seniors and

10 people with disabilities. The Committee conducted an extensive needs assessment between August

II 2002 and December 2003, which resulted in a four-year strategic plan in April 2004, called the

12 Strategic Plan to Improve Community-Based Long Term Care and Supportive Services in San

13 Francisco. The Plan described the current system as "fragmented," characterized by limited

14 coordination and access to services, as well as service gaps and duplication. Consistent with others'

IS recommendations, the Committee urged better coordination of services, increased access to services,

16 and expansion of the community system's capacity. Defendant has taken little, ifany, action to

17 implement the Plan's goals.

18

San Francisco Controller's Report

19

97. In May 2005, the San Francisco City Controller was asked, due to concerns about the

20 enormous cost-overruns of the proposed 1,200-bed Laguna Honda rebuild, to make

21 recommendations for successful completion of the rebuild. His report concluded that there are only

22 two options worth considering. Option One would use "all reasonably available funds to complete a

23 1,200 bed skilled nursing facility at Laguna Honda," which would cost an estimated $221 million

24 over the $400 million approved through Proposition A, or approximately $500,000 per bed. Option

25 Two would downsize the rebuild to 780 skilled nursing facility beds, build 235 assisted living units

26 in lieu of the remaining skilled nursing facility beds, and use the cost savings to fund a variety of

27 services in the community. The total estimated number of people served under Option Two would

28

21

MARK CHAMBERS ET AL. V. CITY AND COUNTY OF SAN FRANCISCO; C06-06346 WHA

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTNE RELIEF

exceed 1,800.

2

98. The Controller's Report found that for each $2 million not spent at Laguna Honda,

3 100 people could be served in the community, by providing a combination of payment supplements,

4 or "patches" to residential care providers, supportive housing and services, and accessibility

5 modifications to existing housing.

6

99. Defendant has already begun construction of at least a 780-bed skilled nursing

7 facility.

8

100. Defendant has not taken any action to redirect funds or provide community supports

9 as proposed in Option Two, nor has it conducted any assessment to justifY the need for even a 780-

lObed institution.

11

Health Management Associates' Report

12

101. In .Tuly 2005, Health Management Associates (HMA), a consultant retained by

13 Defendant, issued a report on long-term care provided by DPH. HMA found that Defendant's

14 investment in health care services is "second to none" in the nation, approximately $400 per capita

15 compared to a nationwide average of $64. A tremendous portion of that money is used to fund

16 institutional services, however, primarily at Laguna Honda.

17

102. HMA recognized that Defendant over-relies on institutional care due to its lack of

18 integrated planning and management, which results in duplication of services and insufficient

19 community-based services. HMA strongly criticized the proposed Laguna Honda rebuild, stating,

20 "[w]hile it appears that 780 beds will be constructed at the Laguna Honda Hospital site, a [skilled
21 nursing facility1of this size is contrary to all national trends." HMA advised against investing

22 resources in additional institutional services, stating that "the disparate interests of various parties

23 should not be permitted to be used to justifY business as usual in regards to the rebuild of LHH."

24 HMA stated that new nursing homes should have no more than 100-200 beds to allow for

25 "reasonable quality control, patient safety, and good economics."

26

103. HMA's recommendations for improving Defendant's delivery oflong-term care

27 services included: I) identifying appropriate long-term care options to enable individuals to be

28

22

MARK CHAMBERS ET AL. V. CITY AND COUNTY OF SAN FRANCISCO; C06-06346 WHA

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

diverted or discharged from Laguna Honda; 2) reducing the need for institutional care by expanding

2 the availability of community-based services such as respite care, companion services, assistance

3 with meals, adaptive equipment, environmental accessibility modifications, housing, transportation,

4 and adult day health care; 3) completing an inventory of the current housing infrastructure to enable

5 online monitoring of housing availability; and 4) increasing Defendant's investment in case

6 management in order to facilitate utilization of community-based long-term care resources.

7

San Francisco Long-Term Care Coordinating Council

8

104. In November 2004, San Francisco's Mayor appointed the Long-Term Care

9 Coordinating Council (LTCCC) as an advisory body to provide advice and policy guidance on all

10 aspects of long-term care in San Francisco. The LTCCC drafted the Community Placement Plan,

11 which recommends measures intended to "provide safe and healthful transitions" from Laguna

12 Honda and other institutions, including ensuring that individuals have timely access to housing,

13 discharge planning services, case management, and appropriate community-based services. The

14 LTCCC has recommended that Defendant substitute day healthlhousing for some of the nursing

15 facility beds planned in the rebuilt Laguna Honda. To date, Defendant has neither formally adopted

16 the Community Placement Plan nor implemented any of its recommendations.

17

105. Defendant is obligated to directly provide, contract for, and/or assist Plaintiffs and

18 class members in accessing an array of home and community-based services that includes, but is not

19 limited to: Medi-Cal State Plan and Home and Community-Based Waiver services, including

20 personal care services, home nursing care, adult day health care, durable medical equipment,

21 habilitation, and case management; Mental Health services, including crisis services, case

22 management, medication management, 24-hour treatment, and various housing options; meals

23 assistance; money management; senior programs; programs for people with AIDS; and various other

24 types of affordable, accessible housing. Defendant's improved and successful delivery of these

25 services, as well as the recommendations described above, can be implemented with reasonable

26 modifications to Defendant's programs and policies.

27

28

23

MA RK CHAMBERS ET AL. V. CITY AND COUNTY OF SAN FRANCISCO; C06-06346 WHA

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

LEGAL CLAIMS

2

FIRST CLAIM FOR RELIEF

3

Americans with Disabilities Act:

4

Failure to Provide Services in the Most Integrated Setting Appropriate

5

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

6 paragraph set forth previously.

7

107. Individual Plaintiffs and class members are "qualified individuals with a disability"

8 within the meaning of 42 U.S.C. § 12131(2), in that they have a physical and/or mental impairment

9 which substantially limits one or more major life activity, including their ability to live

10 independently without support.

11

108. Individual Plaintiffs and class members meet the essential eligibility requirements for

12 long-term care services under the state Medi-Cal and other state and local programs.

13

109. Organizational Plaintiff Independent Living Resource Center of San Francisco

14 (ILRCSF) represents the interests of individual Plaintiffs and their class in that it provides advocacy

15 and assistance to individuals with disabilities to live in their own homes and communities.

16 ILRCSF's mission is thwarted by Defendant's actions and omissions, which hinder its ability to

17 provide such advocacy and assistance and divert its resources from the work it is designed to do.

18

110. Defendant is a public entity within the meaning of 42 U.S.C. § 12131 (l)(A).

19

Ill. Defendant is obligated under the ADA to administer its programs in a manner that

20 enables qualified individuals with disabilities to live in the most integrated setting appropriate to

21 their needs. Defendant has assessed Plaintiffs and class members and has determined them to be

22 capable of receiving supports and services in their homes and communities rather than at Laguna

23 Honda. Defendant has also determined that Plaintiffs and the majority of class members would

24 prefer to live in the community. Nonetheless, Defendant discriminates against Plaintiffs and class

25 members in ways that include, but are not limited to: utilizing methods of administration that

26 subject qualified people with disabilities to discrimination on the basis of disability; failing to

27 provide reasonable modifications to programs and services; and otherwise failing to provide

28

24

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FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

I community-based options for long-term care in the most integrated settings appropriate. As a result,

2 named Plaintiffs and class members are denied community-based care and access to the full range of

3 home and community-based services.

4

112. Defendant has denied Plaintiffs and class members access to the array of home and

5 community-based services they need and instead, has offered them services only if they are confined

6 in an unnecessarily segregated environment - i.e. Laguna Honda- in violation of Title II of the

7 ADA and implementing regulations, including but not limited to the ADA's integration mandate,

8 which requires that such services be provided in the most integrated setting appropriate. 42 U.S.C

9 §§ 12131-12134; 28 C.F.R. Part 35.

10

SECOND CLAIM FOR RELIEF

II

Section 504 of the Rehabilitation Act -

12

Failure to Provide Services in the Most Integrated Setting Appropriate

13

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

14 paragraph set forth previously.

15

114. Individual Plaintiffs and class members are "otherwise qualified individuals with a

16 disability" under Section 504 of the Rehabilitation Act of 1973, as amended - 29 U.S.C. § 794 and

17 implementing regulations - in that they have mental and/or physical disabilities which substantially

18 limit their ability to live independently without adequate supports.

19

115. Individual Plaintiffs and class members meet the essential eligibility requirements for

20 long-term care services under the State Medi-Cal and other state and local programs.

21

116. Organizational Plaintiff Independent Living Resource Center of San Francisco

22 (ILRCSF) represents the interests of individual Plaintiffs and their class in that it provides advocacy

23 and assistance to individuals with disabilities to live in their own homes and communities.

24 ILRCSF's mission is thwarted by Defendant's actions and omissions, which hinder its ability to

25 provide such advocacy and assistance and divert its resources from the work it is designed to do.

26

117. Defendant has received, and continues to receive federal financial assistance,

27 including federal Medicaid (Medi-Cal) and low-income housing monies, and is thereby a recipient 0

28

25

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FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

I federal aid within the meaning of 29 U.S.C. § 794(b).

2

118. Defendant is obligated under Section 504 to administer its programs in a manner that

3 enables qualified individuals with disabilities to live in the most integrated setting appropriate to

4 their needs. Defendant has assessed Plaintiffs and class members and has determined them to be

5 capable of receiving supports and services in their homes and communities rather than at Laguna

6 Honda. Defendant has also determined that Plaintiffs and the majority of class members would

7 prefer to live in the community. Nonetheless, Defendant discriminates against Plaintiffs and class

8 members in ways that include but are not limited to: utilizing methods of administration that subject

9 qualified people with disabilities to discrimination on the basis of disability; failing to provide

10 reasonable modifications to programs and services; and otherwise failing to provide community-

II based options for long-term care in the most integrated settings appropriate. As a result, named

12 Plaintiffs and class members are denied community-based care and access to the full range of home

13 and community-based services.

14

119. Defendant has denied Plaintiffs and class members access to the array of community-

15 based services they need and prefer, and has offered them services only if they are confined in an

16 unnecessarily segregated environment - i.e., Laguna Honda, thereby excluding them from

17 participation in, denying them the benefits of, and otherwise subjecting them to discrimination under

18 programs and activities receiving federal financial assistance, in violation of Section 504 and its

19 implementing regulations. 29 U.S.c. §§ 794-794a.

20

THIRD CLAIM FOR RELIEF

21

California Government Code sections 11135 and 11139

22

[Subject to Motion for Reconsideration)

23

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

24 paragraph set forth previously.

25

121. Plaintiffs and class members are persons with disabilities within the meaning of

26 California Government Code section 11135(c) and its implementing regulations.

27

122. Individual Plaintiffs and class members meet the essential eligibility requirements for

28

26

MA RK CHAMBERS ET AL. V. CITY AND COUNTY OF SAN FRANCISCO; C06-06346 WHA

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 long-term care services under the State Medi-Cal and other State and local programs.

2

123. Organizational PlaintiffIndependent Living Resource Center of San Francisco

3 (ILRCSF) represents the interests of individual Plaintiffs and their class in that it provides advocacy

4 and assistance to individuals with disabilities to live in their own homes and communities.

5 1LRCSF's mission is thwarted by Defendant's actions and omissions, which hinder its ability to

6 provide such advocacy and assistance and divert its resources from the work it is designed to do.

7

124. Programs and activities operated by Defendant, including programs and activities

8 involved in the provision of long-term care services, are either funded by or receive financial

9 assistance from the State of California; Defendant is thereby a recipient of State financial assistance

10 within the meaning of California Government Code section 11135.

11

125. Defendant is obligated under California Government Code section 11135 to

12 administer its programs in a manner that enables qualified individuals with disabilities to live in the

13 most integrated setting appropriate to their needs. Defendant has assessed Plaintiffs and class

14 members and has determined them to be capable of receiving supports and services in their homes

15 and communities rather than at Laguna Honda. Defendant has also determined that Plaintiffs and th

16 majority of class members would prefer to live in the community. Nonetheless, Defendant

17 discriminates against Plaintiffs and class members in ways that include, but are not limited to:

18 utilizing methods of administration that subject qualified people with disabilities to discrimination

19 on the basis of disability; failing to provide reasonable modifications to programs and services; and

20 otherwise failing to provide community-based options for long-term care in the most integrated

21 settings appropriate. As a result, named Plaintiffs and class members are denied community-based

22 care and access to the full range of home and community-based services.

23

126. Defendant has unlawfully denied Plaintiffs and class members access to the array of

24 community-based services they need and prefer, and, instead, has offered them services only if they

25 are confined in an unnecessarily segregated environment -- i.e., Laguna Honda, thereby unlawfully

26 denying them full and equal access to the benefits of, and otherwise subjecting them to

27 discrimination under programs and activities receiving state financial assistance, in violation of

28

27

MARK CHAMBERS ET AL. V. CITY AND COUNTY OF SAN FRANCISCO; C06-06346 WHA

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

California Government Code section 11l35.

2

127. Since the Court's ruling in the Davis case to dismiss Plaintiffs' California

3 Government Code section 11135 claim for failure to exhaust administrative remedies, the statute has

4 been amended to make explicit the right to bring a civil action without the need to exhaust

5 administrative remedies. The amended section, California Government Code section 11139, makes

6 clear that the statute and its implementing regulations may be enforced by a civil action for equitable

7 relief which is independent of any other rights and remedies.

8

Allegations Concerning Injunctive and Declaratory Relief

9

128. Defendant's actions, as alleged herein, have resulted in, and will continue to result in

10 irreparable injury to Plaintiffs for which they have no adequate remedy at law.

11

129. An actual controversy exists between Plaintiffs and Defendant, in that Plaintiffs claim

12 that Defendant has failed to provide services in the most integrated setting appropriate to meet

l3 Plaintiffs' needs, in violation offederal and state law.

14

130. Unless the requested relief is granted, Organizational Plaintiffs mission to assist San

15 Franciscans with disabilities to live independently and in the community will be thwarted and

16 individual Plaintiffs and class members will be denied services and supports that would allow them

17 to live in their local communities. Without the availability of such services and supports, individual

18 Plaintiffs and class members will continue to live in an unnecessarily restrictive institutional setting

19 and suffer harm, including the loss of independent living skills, personal autonomy and personal

20 freedoms.

21

PRAYER FOR RELIEF

22

131. WHEREFORE, the Plaintiffs request that the Court grant the following relief:

23

a. CertifY a class identical to the class certified in Davis v. CHHSA, COO-2532-

24

SBA by Order of this Court dated June 12,2002. Defendants have waived

25

any objection to certification of such a class pursuant to the Settlement

26

Agreement in Davis, attached herein as Exhibit A, ~ 8.1.

27

b. Declare that Defendant's practices, as set forth above, violate Plaintiffs' and

28

28

MARK CHAMBERS ET AL. V. CiTY AND COUNTY OF SAN FRANCISCO; C06-06346 WHA

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

I

class members' rights under the Americans with Disabilities Act, 42 U.S.C.

2

§§ 12101-12213 and implementing regulations. 28 C.F.R. Part 35.

3

c. Declare that Defendant's practices, as set forth above, violate Plaintiffs' and

4

class members' rights under Section 504 of the Rehabilitation Act, 29 U.S.C.

5

§§ 794-794a and implementing regulations.

6

d. Declare that Defendant's practices, as set forth above, violate Plaintiffs' and

7

class members' rights under California Government Code section 11135 and

8

implementing regulations.

9

e. Enjoin Defendant, its officers, agents, employees, successors and all other

10

persons in active concert or participation with any of them, from further

11

violation of Plaintiffs' and class members' rights under the Americans with

12

Disabilities Act and require Defendant to offer and provide, as appropriate,

13

Plaintiffs and class members with long-term care services in their homes and

14

communities, rather than in an unnecessarily segregated institutional facility.

15

f.

Enjoin Defendant, its officers, agents, employees, successors, and all other

16

persons in active concert or participation with them, from further violation of

17

Plaintiffs' and class members' rights under Section 504 of the Rehabilitation

18

Act and require Defendant to offer and provide, as appropriate, Plaintiffs and

19

class members with long-term care services in their homes and communities,

20

rather than in an unnecessarily segregated institutional facility.

21

g. Enjoin Defendant, its officers, agents, employees, successors, and all other

22

persons in active concert or participation with them, from further violation of

23

Plaintiffs' and class members' civil rights under California Government Code

24

section 1113 5 and require Defendant to offer and provide, as appropriate,

25

Plaintiffs and class members with long-term care services in their homes and

26

communities, rather than in an unnecessarily segregated institutional facility.

27

h. Order any other relief that the Court deems appropriate.

28

29

MARK CHAMBERS ET AL. V. CITY AND COUNTY OF SAN FRANCISCO; C06-06346 WHA

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

I

1.

Award Plaintiffs their costs, expenses, including expert witness fees, and

2

reasonable attorneys' fees, pursuant to CAL. CIY. PROC. CODE § 1021.5 (West

3

2005); 29 U.S.C. § 794a (b); and 42 U.S.C. §§ 1988 and 12205 (West 2005).

4

CERTIFICATION OF INTERESTED ENTITIES OR PERSONS

5

132. Pursuant to Civil L.R. 3-16, the undersigned certifies that as of this date, October 12,

6 2006, other than the named parties: Mark Chambers, Woodrow Falls Jr., M.H., Phillip K., Gerald

7 Scott, Mary T., the class of individuals defined in Paragraph 58 above represented by the named

8 plaintiffs, and the Independent Living Resource Center of San Francisco, there is no such interest to

9 report.

10 Dated:

Respectfully submitted,

II

Protection and Advocacy, Inc.

Disability Rights Education and Defense Fund

12

Bazelon Center for Mental Health Law

AARP Foundation Litigation

13

HowreyLLP

14

IS By:
16

17

Attorneys for Plaintiffs

18 19 F:\DOCS\LHH 2006\PLEADINGS\COMPLAfNT\1 st Amended Complaint\First Amended Complaint IO-12-06.doc

20

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MARK CHAMBERS ET AL. V. CITY AND COUNTY OF SAN FRANCISCO; C06-06346 WHA

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

 </s> Case3:06-cv-06346-WHA Document109 Filed06/09/10 Page1 of 12

1

Elissa Gershon, State Bar No. 169741 Kimberly Swain, State Bar No. 100340

2 Elizabeth Zirker, State Bar No. 233487 DISABILITY RIGHTS CALIFORNIA

3 1330 Broadway, Suite 500

Oakland, CA 94612 4 Telephone: (510) 267-1200

5

Facsimile: (510) 267-1201 Elissa.Gershon@disabilityrightsca.org

6

Kim.Swain@disabilityrightsca.org Elizabeth.Zirker@disabilityrightsca.org

7 Attorneys for Plaintiffs

8 [Complete list of counsel on following pages.]

9

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12 MARK CHAMBERS, et al.

13

Plaintiffs,

14

15 CITY AND COUNTY OF SAN FRANCISCO
16
Defendant. 17

18

19

) Case No.: C06-06346 WHA

)

) JOINT CASE MANAGEMENT

) STATEMENT

v. )

) CLASS ACTION

)

)

) Date: June 16, 2010

) Time: 11:00 a.m.

) Room: 450 Golden Gate Avenue, 19th Floor,

)

Courtroom 9

) Judge: Hon. William H. Alsup

)

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24

25

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MARK CHAMBERS, ET AL. V. CITY AND COUNTY OF SAN FRANCISCO C06-06346 WHA JOINT CASE MANAGEMENT STATEMENT

Case3:06-cv-06346-WHA Document109 Filed06/09/10 Page2 of 12
Arlene Mayerson, State Bar No. 79310 1 Larisa Cummings, State Bar No. 131076
Silvia Yee, State Bar No. 222737 2 DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC.
2212 Sixth Street 3 Berkeley, CA 94710
Telephone: (510) 644-2555 4 Facsimile: (510) 841-8645
amayerson@dredf.org 5 lcummings@dredf.org
syee@dredf.org 6
Ira Burnim, Pro Hac Vice 7 Jennifer Mathis, Pro Hac Vice
BAZELON CENTER FOR MENTAL HEALTH LAW 8 1101 – 15th Street, N.W., Suite 1212
Washington, D.C., 20005-2002 9 Telephone: (202) 467-5730
Facsimile: (202) 223-0409 10 irab@bazelon.org
jenniferm@bazelon.org 11
Bruce Vignery, Pro Hac Vice 12 AARP FOUNDATION LITIGATION
601 “E” Street, N.W., Bldg A4-170 13 Washington, DC 20049
Telephone: (202) 434-2060 14 Facsimile: (202) 434-2127
BVignery@aarp.org 15
Henry Su, State Bar No. 211202 16 Aaron Myers, State Bar No. 200145
HOWREY LLP 17 1950 University Avenue, 4th Floor
East Palo Alto, CA 94303 18 Telephone: (650) 798-3500
Facsimile: (650) 798-3600 19 Suh@howrey.com
Myersa@howrey.com 20
Robert Kramer, State Bar No. 181706 21 Joseph Song, State Bar No. 239494
HOWREY LLP 22 525 Market Street, Suite 3600
San Francisco, CA 94105 23 Telephone: (415) 848-4900
Facsimile: (415) 848-4999 24 Songj@howrey.com
Kramerr@howrey.com 25
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MARK CHAMBERS, ET AL. V. CITY AND COUNTY OF SAN FRANCISCO C06-06346 WHA JOINT CASE MANAGEMENT STATEMENT

Case3:06-cv-06346-WHA Document109 Filed06/09/10 Page3 of 12

1

DENNIS J. HERRERA (SBN 139669) City Attorney

2 DANNY CHOU (SBN 180240) Chief of Affirmative and Complex Litigation

3 JAMES M. EMERY (SBN 153630)

ALEETA VAN RUNKLE (SBN 124563) 4 Deputy City Attorneys

5

Fox Plaza 1390 Market Street, 6th Floor

6 San Francisco, California 94102-5408 Telephone: (415) 554-3987

7 Facsimile: (415) 554-3837

8 ATTORNEYS FOR DEFENDANT 9 CITY AND COUNTY OF SAN FRANCISCO

10

11

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MARK CHAMBERS, ET AL. V. CITY AND COUNTY OF SAN FRANCISCO C06-06346 WHA JOINT CASE MANAGEMENT STATEMENT

Case3:06-cv-06346-WHA Document109 Filed06/09/10 Page4 of 12

1

Pursuant to this Court’s Order of May 17, 2010, the parties hereby submit a written report as

2 to the status of implementation of the Settlement Agreement.

3

BENEFITS TO CLASS MEMBERS

4

San Francisco has developed individual Community Living Plans for 1,146 class members

5 since January 2008, including individuals currently residing at Laguna Honda Hospital, individuals

6 diverted from admission to Laguna Honda, individuals discharged from Laguna Honda into the

7 community, individuals transferred to acute settings, and individuals who have subsequently died.

8 Since January 2008, 290 class members have been discharged into the community, pursuant to their

9 Community Living Plans. San Francisco has identified and secured 110 scattered-site housing units

10 for class members to date.

11

With respect to services to class members, Class Counsel continue to monitor benefits they

12 receive via San Francisco’s quarterly reporting, a review of randomly selected class member files,

13 individual client advocacy, and regular outreach to residents at Laguna Honda. Class Counsel

14 receive quarterly reporting from San Francisco as to more than 30 data elements related to discharge

15 and access to community services. With an expert consultant, Dr. Michael Franczak, Class Counsel

16 conducted a two day visit to class members in June 2009, and provided San Francisco with Dr.

17 Franczak’s written report and recommendations. In May 2010, Class Counsel and Dr. Franczak

18 again conducted a two day visit to class members and provided San Francisco with Dr. Franczak’s

19 written report dated May 20, 2010 containing findings as to San Francisco’s implementation of the

20 Agreement, and recommendations for improved compliance.

21

PROVISIONS FOR NAMED PLAINTIFFS (SECTION IV)

22

All of the named plaintiffs have moved from Laguna Honda, with the exception of one who

23 is waiting for subsidized housing to become available in Berkeley. As reported to the Court on

24 February 19, 2010, lead Plaintiff Mark Chambers moved in February 2010 into an accessible two

25 bedroom apartment with a live-in attendant, and receives case management and habilitative services.

26

ACCESS TO THE NURSING FACILITY WAIVER (SECTION V)

27

As reported previously, San Francisco appointed a Waiver point person to coordinate the

1
28

MARK CHAMBERS, ET AL. V. CITY AND COUNTY OF SAN FRANCISCO C06-06346 WHA JOINT CASE MANAGEMENT STATEMENT

Case3:06-cv-06346-WHA Document109 Filed06/09/10 Page5 of 12

1 Nursing Facility Waiver and other services, as the Settlement Agreement provides. Nine class

2 members are now living in the community supported by the Nursing Facility Waiver, and eighteen

3 class members are in the intake process with the State’s In-Home Operations Division, which

4 operates the Nursing Facility Waiver. As of June 2010, the following non-profit organizations are

5 Nursing Facility Waiver providers: The Institute on Aging (IOA), Toolworks, On Lok 30th Street

6 Services, and the IHSS Consortium. IOA is providing services to eight waiver participants and

7 Toolworks has been providing services under the Nursing Facility Waiver to lead plaintiff Mark

8 Chambers since February 2010.

9

In addition, the Diversion and Community Integration Program (DCIP) coordinates with the

10 Institute on Aging, San Francisco County’s lead agency for providing services under the California

11 Community Transitions, Money Follows the Person Demonstration Project (CCT-MFP). This

12 program provides additional state and federal funding to assist class members moving from Laguna

13 Honda. The program has been operational since July 2009, with thirty-one Laguna Honda residents

14 currently enrolled, eighteen of whom have been discharged to the community with services funded

15 through the program.

16

DIVERSION AND COMMUNITY INTEGRATION PROGRAM (DCIP)/PROVISION

17 OF CASE MANAGEMENT AND WRAP-AROUND SERVICES (SECTIONS VI AND VII)

18

San Francisco continues its DCIP activities and is working with class members who are

19 diverted and discharged from Laguna Honda to provide them with services and supports needed for

20 community living. The DCIP evaluates each eligible class member, according to the Settlement

21 Agreement. Based on the evaluation, the DCIP develops a Community Living Plan for each eligible

22 class member that identifies the services and supports necessary to facilitate a successful discharge

23 or diversion from Laguna Honda Hospital. As mentioned above, 1146 class members have

24 individual Community Living Plans, and DCIP has discharged 290 of these class members into

25 community placements.

26

Dr. Franczak noted in his May 20, 2010 report that the Community Living Plans developed

27 by the DCIP are not currently, but should be, updated on a regular basis to reflect changes in class
2
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MARK CHAMBERS, ET AL. V. CITY AND COUNTY OF SAN FRANCISCO C06-06346 WHA JOINT CASE MANAGEMENT STATEMENT

Case3:06-cv-06346-WHA Document109 Filed06/09/10 Page6 of 12

1 members’ status, and that a tracking mechanism to ensure that the plans are dynamic and current

2 needs to be put in place. The Parties are in discussions regarding how best to achieve this

3 recommendation.

4

The Peer Mentor program referenced in the Parties’ previous Case Management Statements

5 of June and December 2009 continues to be in operation and to assist class members in the transition

6 process. Peer mentors have served a valuable role in assisting class members to become informed

7 about the discharge process, in motivating class members toward greater independence, and in

8 facilitating the discharge process. The Peer Mentor program currently has 16 trained staff who are

9 working with 30 class members, some residing at Laguna Honda and others who have been

10 discharged.

11

This program is operated by the San Francisco Public Authority and funded by the

12 Department of Aging and Adult Services, which is not connected to Laguna Honda. San Francisco

13 is unable to guarantee funding for this program, but will seek to preserve it as long as possible,

14 taking into account the numerous competing funding needs of the population served.

15

1. SAN FRANCISCO'S STATEMENT

16

Dr. Franczak reported that the DCIP's Community Living Plans did not appear to be updated

17 on a regular basis. Dr, Franczak may have not been familiar with all the elements of the online

18 Community Living Plan as the plan is updated to reflect changed conditions and needs. In addition

19 to the Community Living Plan, at the time of discharge, the client's discharge plan includes the Form

20 705 which is a comprehensive document that includes information such as the individuals who

21 support the client in the community, the client's contact information in the community, all the service

22 providers who will be assisting the client at discharge, such as those that will assist with managing

23 mental health, substance use, securing medical equipment, financial management, meals, etc. The

24 discharge plan also includes the Community Living Plan. At the point of a client’s discharge from

25 LHH, the Community Living Plan is current and reflects the individual's needs, preferences and the

26 necessary services. Any subsequent changes in the individual's circumstances are entered by case

27 managers directly in the Community Living Plan, identified with a current date and as additions to
3
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MARK CHAMBERS, ET AL. V. CITY AND COUNTY OF SAN FRANCISCO C06-06346 WHA JOINT CASE MANAGEMENT STATEMENT

Case3:06-cv-06346-WHA Document109 Filed06/09/10 Page7 of 12

1 the progress notes.

2

HOUSING (SECTION VIII)

3

San Francisco has made housing subsidies available for class members diverted and

4 discharged from Laguna Honda, and has contracted with West Bay Housing Corporation to

5 administer the Laguna Honda Hospital Rental Subsidy Program. As of June 2010, San Francisco

6 has identified and secured 110 scattered-site housing units. As set forth in the Settlement

7 Agreement, housing modifications to make units accessible will be provided for; to date Westbay

8 has completed six wheelchair accessibility projects, has five in progress, and has installed grab bars

9 in sixteen units.

10

In order to assist class members who want to move out of Laguna Honda but prefer or

11 require supportive or assisted living rather than independent housing, the Community Living Fund

12 (CLF) took on the responsibility to pay the board and care (assisted living facilities) subsidies to

13 enable these class members to live in the community. CLF currently pays board and care subsidies

14 for eighteen class members who have transitioned out of Laguna Honda Hospital. These board and

15 care subsidies now cost $385,000 for the eighteen class members currently being served. As of June

16 2010, an additional nine class members await discharge to board and care facilities.

17

MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES (SECTION IX)

18

By letter dated June 4, 2009, Class Counsel invoked the dispute resolution process set forth

19 in the Settlement Agreement due to delayed timelines and other provisions of this section of the

20 Agreement. Parties met in person to discuss Class Counsel’s specific concerns on July 15, 2009.

21 Class Counsel subsequently agreed to defer continuation of a formal dispute resolution process in

22 order to monitor Defendant’s implementation of commitments made at that meeting and in further

23 communications. The Parties again met in person on May 4, 2010, and have subsequently held

24 teleconference meetings to discuss Class Counsel’s outstanding concerns. San Francisco responded

25 to concerns generated by Dr. Franczak’s May 20, 2010 report by letter dated June 2, 2010, and the

26 Parties continue to negotiate regarding Class Counsel’s concerns.

27
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Case3:06-cv-06346-WHA Document109 Filed06/09/10 Page8 of 12

1

1. CLASS COUNSEL’S STATEMENT

2

Based on Dr. Franczak’s findings, and the lack of data provided by San Francisco to Class

3 Counsel regarding mental health and substance abuse services, as discussed below, Class Counsel

4 remain concerned about delays in and lack of data and reporting regarding implementation of the

5 provisions of Sections of the Agreement pertaining to mental health and substance abuse services.

6

Section IX.B 1-4

7

In response to the final recommendations from Dr. Davis Ja regarding mental health and

8 substance abuse services provided at LHH as required under this section, San Francisco created the

9 Laguna Honda /Community Behavioral Health Services (LH/CBHS) Recovery and Wellness

10 Implementation Executive Committee. The purpose of the Committee was to develop

11 recommendations regarding behavioral health services focused on meeting the mental health and

12 substance abuse needs of class members at or discharged from Laguna Honda.

13

In his May 20, 2010 report, Dr. Franczak found that the philosophy and principles set forth

14 by the committee were appropriate to the current needs of the population served by the Agreement.

15 However, he also found that due to lack of integration, continuity, coordination, and collaboration

16 between Community Behavioral Health Services, Laguna Honda and the DCIP, it would be

17 challenging to implement and achieve the stated outcomes of the Committee. In addition, he found

18 that the materials generated by the Recovery and Wellness Committee did not contain specific

19 committee recommendations, implementation plans, or accountable parties, although he noted that

20 the standardized measurement tools proposed were reliable and valid assessment tools.

21

Given the lack of specific timelines for implementation of and benchmarks for achieving

22 these recommendations and the general delay in their development, Class Counsel are concerned that

23 class members are not being served appropriately. As discussed below, the lack of data also

24 contributes to Class Counsel’s concern that the mental health and substance abuse provisions of the

25 Agreement are not being implemented.

26

Sections V.I.E.2. and IX. C.1

27

The Settlement Agreement specifically provides for referral to and provision of mental health

5
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MARK CHAMBERS, ET AL. V. CITY AND COUNTY OF SAN FRANCISCO C06-06346 WHA JOINT CASE MANAGEMENT STATEMENT

Case3:06-cv-06346-WHA Document109 Filed06/09/10 Page9 of 12

1 and substance abuse services for class members and that all class members will receive mental

2 health and substance abuse services in accordance with their Community Living Plans. The lack of

3 data reporting, as discussed below, and the delay in implementing the Committee recommendations,

4 make it difficult for Class Counsel to determine the extent to which this section of the Settlement

5 Agreement is being implemented. In addition, Dr, Franczak found that although there have been

6 improvements to the Quality Assurance program, the identification of clients who access

7 medical/behavioral health services are not being captured through Quality Assurance.

8

Section XII

9

The Settlement Agreement provides for data reporting on, inter alia, specific issues related

10 to mental health services and numbers of class members in need of and receiving mental health

11 services. (Settlement Agreement, Attachment A, 30-33). To date Class Counsel has received only

12 one of the four data items required, element 33(names and number of class members receiving

13 CBHS case management pursuant to Section IX.C.1 of the settlement agreement), which San

14 Francisco provided to Class Counsel in its third and fourth quarter 2009 Status Updates. Class

15 Counsel have not received data on three additional elements which are necessary to understand

16 whether and how class members are receiving services to which they are entitled under the

17 Settlement Agreement. In addition, Class Counsel have not been provided with copies of

18 assessments completed on class members, which would yield important information about their

19 needs and whether their needs are being met. This information is vital for Class Counsel; without

20 accurate and comprehensive data, it is difficult to determine the extent of San Francisco’s

21 implementation of and compliance with the mental health and substance abuse sections of the

22 Agreement.

23

At the Court’s request, copies of correspondence and the reports referenced above can be

24 made available.

25

2. SAN FRANCISCO’S STATEMENT

26

The city agrees with Michael Franczak's observation that many of the class members have

27 diagnoses of mental health and/or substance abuse disorders. The city is offering the identified
6
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MARK CHAMBERS, ET AL. V. CITY AND COUNTY OF SAN FRANCISCO C06-06346 WHA JOINT CASE MANAGEMENT STATEMENT

Case3:06-cv-06346-WHA Document109 Filed06/09/10 Page10 of 12

1 services. But of course class members can always refuse services. Membership in the class and

2 placement in the community does not mean that the individual no longer has the right to choose

3 among treatment options. Dr. Franczak went on to note that in each of the cases he reviewed, the

4 city's case manager had offered the class member services; and in every case, the individual had

5 declined services. Dr. Franczak attributed the class members' refusal of services to a lack of training

6 on the part of the case managers in making repeated attempts to engage clients. Dr. Franczak had

7 previously recommended that the city's case managers participate in training in the motivational

8 interviewing technique. This technique involves an intensive and often extended process of

9 encouraging a client to acknowledge the need for services and then to take steps to keep

10 appointments, etc. The city recognized the value of Dr. Franczak's recommendation and a large

11 portion of the city's case managers and placement staff have been trained. The city has offered to

12 provide further training on documentation so that a case manager's efforts at engaging a client will

13 be clearly identified as motivational training. Notwithstanding the city's repeated efforts to convince

14 a client to engage in substance use or mental health treatment, many clients continue to refuse

15 services.

16

Section XII

17

Class counsel alleges that the city has not provided them with assessments of class members.

18 This may reflect class counsel's misunderstanding as to the information available to the class counsel

19 through the DCIP database. Counsel may be unaware that they have online access to the MDS-HC

20 (Minimum Data Set-Health Care) assessments completed on class members in the data base under

21 the assessment tab. The city would be glad to assist Plaintiffs' counsel in navigating the online

22 system.

23

Plaintiffs also note that they have not yet received three data elements out of the 33 required

24 under the settlement agreement. Plaintiffs are correct that they have not received aggregate data on

25 these elements. The city will report on the additional three elements going forward.

26

Section IX.B 1-4

27

The city satisfied the obligation to assess the mental health/substance abuse services needed,

7
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Case3:06-cv-06346-WHA Document109 Filed06/09/10 Page11 of 12

1 provided, and available to all LHH residents. The resulting report was sixty (60) pages in length

2 and contained numerous recommendations. The city exceeded the commitments made in the

3 settlement report by creating a Recovery and Wellness Committee to improve the delivery of all

4 behavioral health services, not just those provided to LHH residents.

5

LAGUNA HONDA HOSPITAL (SECTION X)

6

The rebuild of Laguna Honda Hospital is underway and that the planned capacity is no more

7 than 780 skilled nursing beds. The current population of Laguna Honda is 754. San Francisco

8 anticipates moving to the new buildings in August 2010.

9

QUALITY ASSURANCE (SECTION XIII)

10

San Francisco reports that Quality Management protocols include in-person visits to class

11 members after they have been discharged into the community. San Francisco developed a Quality

12 Assurance Implementation Plan (QAIP), and now reports on a quarterly basis to Class Counsel as to

13 the Quality Management protocols. In addition, San Francisco reports that clients are followed at

14 regular intervals and by different providers, using a multiple check system when appropriate. Dr.

15 Franczak, he found improvement in the implementation of the Quality Assurance Implementation

16 Plan from his May 2009 review. However, in his review of the Quality Assurance Quality and

17 Volume Indicator reports, he noted that information regarding class members who access behavioral

18 health services is not being captured and reported currently, as mentioned above, nor is information

19 related to barriers to housing retention and community services. Dr. Franczak identifies these three

20 areas as particularly important indicators for the development of a responsive and comprehensive

21 system of care. The Parties are in discussions regarding how to improve Quality Assurance based on

22 Dr. Franczak’s findings.

23

1. SAN FRANCISCO'S STATEMENT

24

Dr. Franczak observed that the city's Quality Assurance program did not capture class

25 members who access behavioral health services nor information related to the barriers to housing

26 retention and community services. The city initiated collecting quality assessment data in a number

27 of areas, including those related to substance use treatment, mental health service, appropriateness of
8
28
MARK CHAMBERS, ET AL. V. CITY AND COUNTY OF SAN FRANCISCO C06-06346 WHA JOINT CASE MANAGEMENT STATEMENT

Case3:06-cv-06346-WHA Document109 Filed06/09/10 Page12 of 12

1 housing, and other relevant supportive needs, in late 2009. The data has been reviewed in the

2 Quality Assurance meetings comprised of multi-disciplinary clinical staff members from various

3 departments and community agencies and the data will be included in the city's second quarter report

4 for 2010. Data collection on the barriers to community services will be available by July, 2010.

5

CONCLUSION

6

The parties respectfully request that the Court schedule another Case Management

7 Conference in six months.

8

9

Respectfully Submitted,

10 Date: June 9, 2010 By: 11 12

/s/ James M. Emery
James M. Emery Attorneys for Defendant City and County of San Francisco

13

14 Date: June 9, 2010 By: 15 16

/s/ Elissa Gershon
Elissa Gershon Attorneys for Plaintiffs

17

Filer’s Attestation: Pursuant to General Order No. 45, § X(B), I attest under penalty of

18 perjury that concurrence in the filing of the document has been obtained from each of its signatories.

19 Date: June 9, 2010 By: 20
21

/s/ James M. Emery
James M. Emery Attorneys for Defendant City and County of San Francisco

22

23

24

25

26

27
9
28
MARK CHAMBERS, ET AL. V. CITY AND COUNTY OF SAN FRANCISCO C06-06346 WHA JOINT CASE MANAGEMENT STATEMENT

 </s> Case3:06-cv-06346-WHA Document104 Filed11/30/09 Page1 of 10

1 [COMPLETE LIST OF COUNSEL ON FOLLOWING PAGES ]

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN FRANCISCO DIVISION

11 MARK CHAMBERS, et al.

) Case No. C 06-06346 WHA

)

12

Plaintiffs,

) CLASS ACTION

)

13

vs. ) JOINT CASE MANAGEMENT

) STATEMENT

14 CITY AND COUNTY OF SAN FRANCISCO, )

) Case Management Conference:

15

Defendant.

) Date: December 3, 2009

) Time: 11:00 a.m.

16

) Room: Courtroom 9, 19th Floor

) Judge: Hon. William H. Alsup

17

)

)

18

19

20

21

22

23

24

25

26

27

28

i CASE NO. C 06-06346 WHA: JOINT CASE MANAGEMENT STATEMENT

Case3:06-cv-06346-WHA Document104 Filed11/30/09 Page2 of 10
1 Elissa Gershon (SBN 169741) Kimberly Swain (SBN 100340)
2 Elizabeth Zirker (SBN 233487) DISABILITY RIGHTS CALIFORNIA
3 1330 Broadway, Suite 500 Oakland, CA 94612
4 Telephone: (510) 267-1200 Facsimile: (510) 267-1201
5 Elissa.Gershon@disabilityrightsca.org Kim.Swain@disabilityrightsca.org
6 Elizabeth.Zirker@disabilityrightsca.org
7 Arlene Mayerson (SBN 79310) Larisa Cummings (SBN 131076)
8 Silvia Yee (SBN 222737) DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC.
9 2212 Sixth Street Berkeley, CA 94710
10 Telephone: (510) 644-2555 Facsimile: (510) 841-8645
11 amayerson@dredf.org lcummings@dredf.org
12 syee@dredf.org
13 Ira Burnim, Pro Hac Vice Jennifer Mathis, Pro Hac Vice
14 BAZELON CENTER FOR MENTAL HEALTH LAW 1101 – 15th Street, N.W., Suite 1212
15 Washington, D.C., 20005-2002 Telephone: (202) 467-5730
16 Facsimile: (202) 223-0409 irab@bazelon.org
17 jenniferm@bazelon.org
18 Bruce Vignery, Pro Hac Vice Dorothy Siemon, Pro Hac Vice
19 AARP FOUNDATION LITIGATION 601 “E” Street, N.W., Building A4-170
20 Washington, D.C., 20049 Telephone: (202) 434-2060
21 Facsimile: (202) 434-2127 BVignery@aarp.org
22 DSiemon@aarp.org
23 Henry C. Su (SBN 211202) Aaron Myers (SBN 200145)
24 HOWREY LLP 1950 University Avenue, 4th Floor
25 East Palo Alto, CA 94303 Telephone: (650) 798-3500
26 Facsimile: (650) 798-3600 SuH@howrey.com
27 MyersA@howrey.com
28
ii CASE NO. C 06-06346 WHA: JOINT CASE MANAGEMENT STATEMENT

Case3:06-cv-06346-WHA Document104 Filed11/30/09 Page3 of 10
1 Robert F. Kramer (SBN 181706) Joseph Song (SBN 239494)
2 HOWREY LLP 525 Market Street, Suite 3600
3 San Francisco, California 94105 Telephone: (415) 848-4900
4 Facsimile: (415) 848-4999 KramerR@howrey.com
5 SongJ@howrey.com
6 ATTORNEYS FOR PLAINTIFFS
7 DENNIS J. HERRERA (SBN 139669) City Attorney
8 DANNY CHOU (SBN 180240) Chief of Affirmative and Complex Litigation
9 JAMES M. EMERY (SBN 153630) ALEETA VAN RUNKLE (SBN 124563)
10 Deputy City Attorneys Fox Plaza
11 1390 Market Street, 6th Floor San Francisco, California 94102-5408
12 Telephone: (415) 554-3987 Facsimile: (415) 554-3837
13 ATTORNEYS FOR DEFENDANT
14 CITY AND COUNTY OF SAN FRANCISCO
15
16
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18
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20
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iii CASE NO. C 06-06346 WHA: JOINT CASE MANAGEMENT STATEMENT

Case3:06-cv-06346-WHA Document104 Filed11/30/09 Page4 of 10

1

Pursuant to this Court’s Order of June 11, 2009, the parties hereby submit a written report as

2 to the status of implementation of the Settlement Agreement. By letter dated June 4, 2009, Class

3 Counsel invoked the dispute resolution process set forth in the Settlement Agreement, and the parties

4 continue to meet and confer regarding mental health and substance abuse services (Section IX of the

5 Settlement Agreement).

6

BENEFITS TO CLASS MEMBERS

7

San Francisco has developed individual Community Living Plans for 1100 class members

8 since January 2008, including individuals currently residing at Laguna Honda Hospital, individuals

9 diverted from admission to Laguna Honda, individuals discharged from Laguna Honda into the

10 community, individuals transferred to acute settings, and individuals who have subsequently died.

11 Each Community Living Plan identifies the services and supports necessary to facilitate a successful

12 placement in the community after discharge or diversion from Laguna Honda Hospital. Since

13 January 2008, 212 class members have been discharged into the community, pursuant to their

14 Community Living Plans. San Francisco has identified and secured 98 scattered-site housing units

15 for class members to date.

16

With respect to services to class members, Class Counsel continue to monitor benefits they

17 receive via San Francisco’s quarterly reporting, a review of randomly selected class member files,

18 individual client advocacy, and regular outreach to residents at Laguna Honda. Class Counsel

19 receive quarterly reporting from San Francisco as to more than 30 data elements related to discharge

20 and access to community services. Class Counsel continue to work with an expert consultant to

21 review randomly selected files and provide opinions as to Defendant’s implementation of

22 recommendations made.

23 I. PROVISIONS FOR NAMED PLAINTIFFS (SECTION IV)

24

Three of the named plaintiffs have been discharged to the community and two continue to

25 reside in independent housing with support services (one is deceased). The third is currently

26 residing in a community-based residential care facility. An accessible two bedroom apartment has

27

28

1 CASE NO. C 06-06346 WHA: JOINT CASE MANAGEMENT STATEMENT

Case3:06-cv-06346-WHA Document104 Filed11/30/09 Page5 of 10

1 been secured for lead Plaintiff Mark Chambers, with a projected discharge date of January 2010.

2 The remaining named plaintiff is in an active discharge process.

3 II. ACCESS TO THE NURSING FACILITY WAIVER (SECTION V):

4

San Francisco continues to implement required activities under this section and has reported

5 to Class Counsel. San Francisco has appointed a Waiver point person to serve on the DCIP, who

6 coordinates the Nursing Facility Waiver and other services, as the Settlement Agreement provides.

7 Seven class members are now living in the community supported by the Nursing Facility Waiver,

8 and twenty-five class members are in the intake process with the State’s In-Home Operations

9 Division, which operates the Nursing Facility Waiver.

10

In addition, the DCIP coordinates with the Institute on Aging, San Francisco County’s lead

11 agency for providing services under the California Community Transitions, Money Follows the

12 Person Demonstration Project (CCT-MFP). This program has been operational for six months with

13 seventeen Laguna Honda residents currently enrolled, three of whom have been discharged to the

14 community with services funded through the program.

15 III. DIVERSION AND COMMUNITY INTEGRATION PROGRAM (DCIP)/PROVISION

16

OF CASE MANAGEMENT AND WRAP-AROUND SERVICES (SECTIONS VI AND

17

VII):

18

The DCIP is fully operational, as the Settlement Agreement requires. San Francisco is

19 engaged in DCIP activities and is working with class members who are diverted and discharged

20 from Laguna Honda to provide them with services and supports needed for community living. The

21 DCIP evaluates each eligible class member, according to the Settlement Agreement. Based on the

22 evaluation, the DCIP develops a Community Living Plan for each eligible class member that

23 identifies the services and supports necessary to facilitate a successful discharge or diversion from

24 Laguna Honda Hospital. As mentioned above, 1,100 class members have individual Community

25 Living Plans, and DCIP has discharged 212 of these class members into community placements.

26

The Peer Mentor program referenced in the Parties’ previous Case Management Statement of

27 June 9, 2009 continues to be in operation and to assist class members in the transition process. Peer

28

2 CASE NO. C 06-06346 WHA: JOINT CASE MANAGEMENT STATEMENT

Case3:06-cv-06346-WHA Document104 Filed11/30/09 Page6 of 10

1 mentors have served a valuable role in assisting class members to become informed about the

2 discharge process, in motivating class members toward greater independence, and in facilitating the

3 discharge process. There are currently 15 trained peer mentors working with 35 class members.

4

This program is operated by the Public Authority and funded by the Department of Aging

5 and Adult Services, which is not connected to Laguna Honda. San Francisco is unable to guarantee

6 funding for this program, but will seek to preserve it as long as possible, taking into account the

7 numerous competing funding needs of the population served.

8 IV. HOUSING (SECTION VIII):

9

San Francisco has made housing subsidies available for class members diverted and

10 discharged from Laguna Honda and has contracted with West Bay Housing Corporation, to

11 administer the Laguna Honda Hospital Rental Subsidy Program. San Francisco has identified and

12 secured 98 scattered-site housing units, of which 85 class members have set up residence to date, and

13 anticipates meeting the first 100 unit goal by January 2010. The Settlement Agreement identifies

14 March 6, 2009, as the completion date for identifying and securing the first 100 units of scattered-

15 site housing. San Francisco explains the delay as a consequence of the unanticipated amount of time

16 required for final approval of the Settlement Agreement after the parties completed their

17 negotiations, which in turn delayed the City's process for bidding and securing its contract with West

18 Bay.

19 V. MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES (SECTION IX):

20

By letter dated June 4, 2009, Class Counsel invoked the dispute resolution process set forth

21 in the Settlement Agreement due to delayed timelines and other provisions of this section of the

22 Agreement. Since that time, some of the issues have been resolved, and some are outstanding. The

23 Parties met in person to discuss Class Counsel’s specific concerns on July 15, 2009. Class Counsel

24 subsequently agreed to defer continuation of a formal dispute resolution process in order to monitor

25 Defendant’s implementation of commitments made at that meeting and in further communications,

26 as set forth below.

27

Section IX.B 1-4

28

3 CASE NO. C 06-06346 WHA: JOINT CASE MANAGEMENT STATEMENT

Case3:06-cv-06346-WHA Document104 Filed11/30/09 Page7 of 10

1

Under the terms of the Agreement, by June 2008, San Francisco was to have conducted an

2 assessment of mental health/substance abuse services needed, provided and available to Laguna

3 Honda residents; made recommendations regarding mental health and substance abuse services

4 provided at LHH; and developed a plan and timeline for implementing these recommendations. San

5 Francisco was to report on these recommendations to the LTCCC by October 2008. Class Counsel

6 received the final report on these recommendations, completed by Dr. Davis Ja, on August 3, 2009.

7

According to Defendant, San Francisco has developed a collaborative and multidisciplinary

8 workgroup, the Laguna Honda/Community Behavioral Health Services (LH/CBHS) Recovery and

9 Wellness Implementation Executive Committee, which is tasked with developing recommendations

10 regarding behavioral health services, focused on meeting the mental health and substance use needs

11 of the clients at and discharged from Laguna Honda. In December 2009 and January 2010, the

12 committee will share its findings and recommendations with community care providers and Laguna

13 Honda residents at the monthly meetings of the LTCCC and Laguna Honda Residents’ Counsel.

14 Recommendations will include the use of standardized assessment tools for substance use and

15 mental health issues, and making the results of the assessments and other data accessible on-line to

16 facilitate clinical review and services. San Francisco reports on the activities of this group in its

17 quarterly Status Updates to Class Counsel. San Francisco plans to establish a new social worker

18 position specifically to provide transitional treatment and facilitate Community Behavioral Health

19 Services (CBHS) services for class members at Laguna Honda with mental health or substance abuse

20 needs as those class members transition to the community from Laguna Honda. San Francisco also

21 plans to finalize recommendations of the (LH/CBHS) Recovery and Wellness Implementation

22 Executive Committee in February 2010. Class Counsel will monitor these activities to determine the

23 effectiveness of Class members’ access to appropriate mental health and substance abuse services.

24

Sections V.I.E.2. and IX. C.1

25

The Settlement Agreement specifically provides for referral to and provision of mental health

26 and substance abuse services for class members and that all class members will receive mental

27 health and substance abuse services in accordance with their Community Living Plans. According

28

4 CASE NO. C 06-06346 WHA: JOINT CASE MANAGEMENT STATEMENT

Case3:06-cv-06346-WHA Document104 Filed11/30/09 Page8 of 10

1 to Defendant, the work of the Laguna Honda/Community Behavioral Health Services (LH/CBHS)

2 Recovery and Wellness Implementation Executive Committee will enhance the integration of

3 treatment and services across healthcare service providers and maximize continuity of care for class

4 members. Class Counsel will monitor the medical records of class members to determine whether

5 class members are receiving mental health and substance abuse services in accordance with their

6 Community Living Plans.

7

Section XII

8

The Settlement Agreement also provides for data reporting on specific issues related to

9 mental health services and numbers of class members in need of and receiving mental health

10 services. (Settlement Agreement, Attachment A, 30-33). To date Class Counsel has received only

11 one of the four data items required, No. 33, “Names and number of class members receiving CBHS

12 case management pursuant to Section IX.C.1 of the settlement agreement,” which San Francisco

13 provided to Class Counsel in its third quarter 2009 Status Update. As of the third quarter of 2009,

14 San Francisco reports that 14 class members are receiving CBHS services.

15

Laguna Honda does not have an electronic tracking system to collect significant data on the

16 mental health and substance use of its clients. An electronic tracking system is being developed to

17 track the completed Preadmission Screening and Resident Review (PASSR) forms that assesses

18 whether or not a long term care resident's mental health issues trigger a need for further assessment

19 by the State. The tracking system is expected to be completed by the end of December 2009, at

20 which time mental health data can begin to be electronically captured and made available to Class

21 Counsel. Class Counsel will monitor the medical records of targeted and randomly elected class

22 members to determine whether class members are referred for and are receiving the mental health

23 and substance abuse services they need.

24

At the Court’s request, copies of correspondence and the reports referenced above can be

25 made available.

26 VI. LAGUNA HONDA HOSPITAL (SECTION X):

27

28

5 CASE NO. C 06-06346 WHA: JOINT CASE MANAGEMENT STATEMENT

Case3:06-cv-06346-WHA Document104 Filed11/30/09 Page9 of 10

1

The rebuild of Laguna Honda Hospital is underway and that the planned capacity is no more

2 than 780 skilled nursing beds. San Francisco has been reducing the census at Laguna Honda in

3 anticipation of the move to the new buildings next year.

4 VII. QUALITY ASSURANCE (SECTION XIII):

5

The parties continue to work collaboratively regarding Quality Assurance. Defendant reports

6 that Quality Management protocols include in-person visits to class members after they have been

7 discharged into the community. Class counsel and their consultant raised some specific concerns at

8 a meeting on May 15, 2009 and a subsequent letter on May 19, 2009. The Parties discussed Quality

9 Management at their in-person meeting on July 15, 2009; as part of addressing Class Counsel’s

10 concerns, San Francisco developed a Quality Assurance Implementation Plan (QAIP), and now

11 reports on a quarterly basis to Class Counsel as to the Quality Management protocols. In addition,

12 San Francisco reports that clients are followed at regular intervals and by different providers, using a

13 multiple check system when appropriate. The Quality Assurance Implementation Plan Committee

14 has been meeting monthly since August 2009, and will meet quarterly beginning in

15 2010.Respectfully Submitted,

16 Date: November 30, 2009 17 18

By:

/s/

James M. Emery

Attorneys for Defendant City and County

of San Francisco

19 Date: November 30, 2009 20

By:

/s/

Elissa Gershon

Attorneys for Plaintiffs

21

Filer’s Attestation: Pursuant to General Order No. 45, § X(B), I attest under penalty of 22

perjury that concurrence in the filing of the document has been obtained from each of its signatories. 23

Date: November 30, 2009 24 25

By:

/s/

Elissa Gershon

Attorneys for Plaintiffs

26

27

28

6 CASE NO. C 06-06346 WHA: JOINT CASE MANAGEMENT STATEMENT

Case3:06-cv-06346-WHA Document104 Filed11/30/09 Page10 of 10
1 F:\DOCS\Chambers\PLEADINGS\CMC Statements\Final Jt Chambers CMC 11-30-09.DOC 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
7 CASE NO. C 06-06346 WHA: JOINT CASE MANAGEMENT STATEMENT

 </s> 1 KIMBERLY SWAIN (Bar # 100340) MICHAEL STORTZ (Bar # 153378)
2 ERIC GELBER (Bar # 95256) ELISSA GERSHON (Bar # 169741)
3 PROTECTION & ADVOCACY, INC. 433 Hegenberger Road, Suite 220
4 Oakland, CA 94621 TELEPHONE: (510)430-8033
5 FACISIMILE: (510)430-8246 6 Attorneys for Plaintiffs 7

BILL LOCKYER Attorney General of the State of California
DOUGLAS M. PRESS Supervising Deputy Attorney General
BEVERLEY R. MEYERS (Bar # 109624) Deputy Attorney General
455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 TELEP HONE: (415)703-5545 FACSIMILE: (415)703-5480 Attorneys for Defendants STATE DEFENDANTS

8

9

DENNIS J. HERRERA, (Bar #36508) City Attorney

10

JOANNE HOEPER, (Bar #114961) Chief Trial Deputy

11

BLAKE LOEBS (Bar #145790) ELLEN SHAPIRO (Bar #127847)

SHARTSIS, FRIESE & GINSBURG LLP ARTHUR J. SHARTSIS (Bar #51549) TRACY L. SALISBURY (Bar #106837) AMY L. HESPENHEIDE (Bar #200930) One Maritime Plaza, 18th Floor San Francisco, California 94111

12

Deputy City Attorneys 1390 Market Street, Sixth Floor

13

San Francisco, CA 94102-5408 TELEPHONE: (415)554-3800

14 FACSIMILE: (415)554-3837

TELEPHONE: (415)421-6500 FACSIMILE: (415) 421-2922 Attorneys for Defendants STATE DEFENDANTS

15

Attorneys for Defendant CITY AND COUNTY OF SAN FRANCISCO

16 [Complete list of Plaintiffs’ Counsel on following page]

17

18

IN THE UNITED STATES DISTRICT COURT

19

FOR THE NORTHERN DISTRICT OF CALIFORNIA

20 CHARLES DAVIS, et al.

21

Plaintiffs,

) Case No.: C00-2532 SBA ) ) CLASS ACTION )

22

vs.

23

CALIFORNIA HEALTH AND HUMAN SERVICES AGENCY (CHHS),

24

Defendants.

25

) ) )

DATE: TIME:

) PLACE:

)

)

)

)

26

JOINT NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF

27

CLASS SETTLEMENT AGREEMENTS, DIRECTING NOTICE TO THE CLASS, FOR A SCHEDULING ORDER AND FAIRNESS HEARING, AND FOR FINAL APPROVAL OF

28

SETTLEMENT AGREEMENTS; MEMORANDUM OF POINTS AND AUTHORITIES

DAVIS V. CHHS; CASE NO. C00-2532-SBA CLASS ACTION- JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENTS

PAGE 1

1 Arlene Mayerson, State Bar No. 79310

Larisa Cummings, State Bar No. 131076 2 Silvia Yee, State Bar No. ______

3

DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC. 2212 6TH Street

4 Berkeley, CA 94710 TELEPHONE: (510)644-2555

5 FACSIMILE: (510)841-8645

6 Ira Burnim, Pro Hac Vice

7

Jennifer Mathis, Pro Hac Vice BAZELON CENTER FOR MENTAL HEALTH LAW

8 1101 – 15th Street, N.W., Suite 1212

Washington, D.C, 20005-2002 9 TELEPHONE: (202)467-5730

10 FACSIMILE: (202)223-0409

11 Herbert Semmel, State Bar No. 176558

NATIONAL SENIOR CITIZENS LAW CENTER 12 3435 Wilshire Blvd., Suite 2860

13

Los Angeles, CA 90010-1938 TELEPHONE: (213)639-0930

14 FACSIMILE: (213)639-0934

15 Andrew Thomas Sinclair, State Bar No. 72681

16

LAW OFFICES OF ANDREW THOMAS SINCLAIR Rotunda Building, Suite 160

17 300 Frank H. Ogawa Plaza Oakland, CA 94612

18 TELEPHONE: (510)465-5300

19 FACSIMILE: (510)465-5356

20

Bruce Vignery Dorothy Siemon

21 AARP FOUNDATION LITIGATION

601 “E” Street, N.W. Bldg A4-170 22 Washington, DC 20049

23

TELEPHONE: (202)434-2127 FACSIMILE: (202)434-21

24 Buckmaster de Wolf, State Bar No. 195536
25 Lisa S. Buccino, State Bar No. 205266

26

HOWREY SIMON ARNOLD & WHITE, LLP 301 Ravenswood Avenue

27 Menlo Park, CA 94025-3741 TELEPHONE: (650)463-8100

28 FACSIMILE: (650)463-8400

DAVIS V. CHHS; CASE NO. C00-2532-SBA CLASS ACTION- JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENTS

PAGE 2

1

NOTICE OF MOTION AND MOTION

2

PLEASE TAKE NOTICE THAT on such date and time as may be set by the Court, Plaintiffs

3 and Defendants will jointly move for preliminary approval of the proposed Settlement Agreements,

4 for an order directing notice to the class, for a scheduling order setting a Fairness Hearing, and for

5 final approval of the proposed Settlement Agreement following the Fairness Hearing. This joint

6 motion is based on this notice, the accompanying Joint Memorandum of Points and Authorities, and

7 all documents and arguments submitted in support thereof.

8

RELIEF SOUGHT

9

The parties to this action hereby jointly request the following relief:

10

1. Preliminary approval of the Class Action Settlement Agreement s (Exhibits 1 and 2 to

11

Swain Declaration and incorporating their Exhibits and Attachments) that have been

12

reached between them, so that they may proceed with notice to the class and to a

13

Fairness Hearing for final Settlement Agreement approval;

14

2. Leave to file the Third Amended Complaint, attached as Exhibit 4 to Swain

15

Declaration.

16

3. An order directing the proposed Form of Notice to the class (Exhibit 3 to Swain

17

Dec.);

18

4. An order setting a schedule for notice to the class and for a Fairness Hearing for final

19

approval; and

20 ///

21 ///

22 ///

23 ///

24 ///

25 ///

26 ///

27 ///

28

DAVIS V. CHHS; CASE NO. C00-2532-SBA CLASS ACTION- JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENTS

PAGE 3

1

5.

2

3

4

5

6

7

8

9

10

11 Dated: 12

13

14

15

16

17

18

19

20

21 Dated: 22

23

24

25

26

27

28

Final approval of the Class Action Settlement Agreement following the Fairness Hearing.
Respectfully submitted, PROTECTION AND ADVOCACY, INC. DISABILITY RIGHTS EDUCATION AND
DEFENSE FUND AARP FOUNDATION LITIGATION BAZELON CENTER FOR MENTAL
HEALTH LAW NATIONAL SENIOR CITIZENS LAW
CENTER LAW OFFICES OF ANDREW THOMAS
SINCLAIR HOWREY SIMON ARNOLD & WHITE, LLP
By: __________________________________ Kim Swain Eric Gelber Michael Stortz Elissa Gershon PROTECTION AND ADVOCACY, INC. 433 Hegenberger Road., Suite 220 Oakland, CA 94621 Attorneys for Plaintiffs
DENNIS J. HERRERA, JOANNE HOEPER BLAKE LOEBS ELLEN SHAPIRO
By: ___________________________________ Blake Loebs City Attorney’s Office 1390 Market Street, 6th Floor San Francisco, CA 94102 Attorneys for Defendant CITY AND COUNTY OF SAN FRANCISCO

DAVIS V. CHHS; CASE NO. C00-2532-SBA CLASS ACTION- JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENTS

PAGE 4

1 2 3 4 5 Dated: 6 7 8 9 10 11 12 13 Dated: _______________ 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

BILL LOCKYER, Attorney General of the State of California DOUGLAS PRESS, Supervising Deputy Attorney General BEVERLEY R. MEYERS
By: __________________________________ Beverley R. Meyers Deputy Attorney General 455 Golden Gate Avenue, Ste. 11000 San Francisco, CA 94102-7004
SHARTSIS, FRIESE & GINSBURG LLP ARTHUR J. SHARTSIS TRACY L. SALISBURY AMY L. HESPENHEIDE
By: __________________________________ Tracy L. Salisbury SHARTSIS, FRIESE & GINSBURG, LLP One Maritime Plaza, 18th Floor San Francisco, California 94111 ATTORNEYS FOR STATE DEFENDANTS

DAVIS V. CHHS; CASE NO. C00-2532-SBA CLASS ACTION- JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENTS

PAGE 5

1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3

This action was brought by a plaintiff class consisting of individuals with disabilities and the

4 Independent Living Resource Center of San Francisco ("Plaintiffs") against the City and County of

5 San Francisco (“Defendant San Francisco”) and the California Health and Human Services Agency,

6 Grantland Johnson, California Department of Health Services, Diana Bonta; California Department

7 Of Social Services, Rita Saenz, California Department of Mental Health, Stephen Mayberg,

8 California Department of Aging and Lynda Terry (“State Defendants”), collectively “Defendants,”

9 alleging that Defendants violated the Americans with Disabilities Act (ADA), 42 U.S.C. ' 12101 et

10 seq., Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, the Medicaid Act, 42 U.S.C. § 1396 et

11 seq., the Nursing Home Reform Act, 42 U.S.C. § 1396r et seq., and 42 U.S.C. § 1983. Plaintiffs

12 claim that Defendants have failed to properly assess for, inform of, and ensure that class members

13 are offered and provided with home and community based long-term care services in the most

14 integrated setting appropriate to their needs. Plaintiffs claim that as a result, class members are, or

15 are at risk of being, unnecessarily institutionalized at Laguna Honda Hospital and Rehabilitation

16 Center (“LHH”). All defendants have denied these allegations.

17

Plaintiffs and Defendants have engaged in substantial settlement negotiations and have

18 reached agreement among themselves regarding significant class claims. Plaintiffs and Defendants

19 have further agreed to dismiss the remaining claims without prejudice in order to enable Defendant

20 San Francisco to implement the Settlement Agreement and to enable Plaintiffs to refile the

21 remaining claims at a later date. The original executed Settlement Agreement between Plaintiffs and

22 Defendant San Francisco as approved by the parties is submitted herewith as Exhibit 1 to the

23 accompanying Declaration of Kim Swain ("Swain Declaration")1. The original executed Settlement

24 Agreement between Plaintiffs and State Defendants as approved by the parties is submitted herewith

25 as Exhibit 2 to the accompanying Swain Declaration. By this motion, the parties seek:

26

27

28 1 The Swain Declaration attached here is not a pleading submitted jointly by all parties.

DAVIS V. CHHS; CASE NO. C00-2532-SBA CLASS ACTION- JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENTS

PAGE 1

1

1. Preliminary approval of the Settleme nt Agreements attached to Swain Declaration as

2

Exhibits 1 and 2;

3

2. An order granting leave of court to file the Third Amended Complaint attached

4 as Exhibit 4 to Swain Declaration.

5

3. An order approving notice to the class of a Fairness Hearing on the Settlement

6

Agreements (Exhibit 3 to Swain Dec.);

7

4. A scheduling order setting a schedule for such a hearing; and,

8

5. Final approval of the Settlement Agreement s.

9

The parties have set forth general parameters for a proposed schedule that will allow

10 adequate opportunity for notice, review and comment by all concerned, but is also consistent with

11 the parties' desire for prompt implementation of the Settlement Agreements.

12 II. HISTORY OF SETTLEMENT NEGOTIATIONS

13

In June of 2002, the parties stipulated that a class be certified for this action. On June 12,

14 2002, Judge Armstrong certified a state-wide class under F.R.C.P. 23(b), per the stipulation of the

15 parties. The class was defined as:

16

“All adult Medi-Cal beneficiaries who: (1) are or will become residents of Laguna Honda

17 Hospital and Rehabilitation Center, or (2) are or will be on waiting lists for Laguna Honda Hospital

18 and Rehabilitation Center; or (3) are or will be within two years of discharge from Laguna Honda

19 Hospital and Rehabilitation Center; or (4) are or will become patients at San Francisco General

20 Hospital or other hospitals owned or controlled by the City and County of San Francisco, who are

21 eligible for discharge to Laguna Honda Hospital and Rehabilitation Center."

22

The parties engaged in Settleme nt Agreement negotiations beginning in March 2002. The

23 ongoing Settlement negotiations have been supervised by Magistrate Judge Chen. Plaintiffs and

24 Defendants have now reached agreement in significant aspects of the case.

25

Plaintiffs and Defendant San Francisco have agreed to settle components of the lawsuit that

26 involve assessment, service/discharge planning, and provision of information to class members

27 about home and community based services. In order to give San Francisco time to implement the

28

DAVIS V. CHHS; CASE NO. C00-2532-SBA CLASS ACTION- JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENTS

PAGE 2

1 settlement agreement, Plaintiffs have agreed to dismiss the entire case without prejudice. After July

2 31, 2004, Plaintiffs will reinstitute all or part of the case, as described below in Section III.

3

Plaintiffs and State Defendants have agreed to settle tha t portion of the case involving Pre-

4 Admission Screening and Resident Review (PASRR) evaluations of class members. All claims

5 against the State Defendants will be dismissed without prejudice until State Defendants comply with

6 the terms of the Settlement Agreements as described in Section IV. At such time, claims related to

7 PASRR will be dismissed with prejudice. Please note that the following is a summary and the

8 attached Settlement Agreements, Exhibits 1 and 2 and their accompanying Exhibits and Attachme nts

9 contain the specific provisions of the Agreements and are incorporated herein by reference.

10 III. SETTLEMENT AGREEMENT BETWEEN PLAINTIFFS AND SAN FRANCISCO

11

A. Terms of the Procedural Agreement (“Settlement Agreement”)

12

1. Defendant San Francisco will establish a Targeted Case Management (“TCM”)

13 Program by February 1, 2004, and conduct other activities as described in Exhibit A to the

14 Settlement Agreement between Plaintiffs and Defendant San Francisco2 or notify Plaintiffs in

15 writing within 10 days after a decision has been made, but no later than February 1, 2004, that

16 Defendant San Francisco has decided not to establish the TCM unit in accordance with Section 3.0-

17 3.4 of Exhibit A.

18

2. Plaintiffs will request that the Court dismiss without prejudice all claims against San

19 Francisco (Claims 1, 2, 4, 5 and 12) in the Third Amended Complaint.3 The Agreement establishes

20 terms and procedures for a dismissal with prejudice of claims relating to assessment procedures

21 (Claims 1, 4 and 12 of the Third Amended Complaint); and provides for postponing the re- filing of

22 the community integration claims (Claims 2, 5 and 11) until the implementation of the TCM

23 Program so that they can be refiled based on pertinent facts at the time, after July 31, 2004 or sooner

24

25

26

2 Unless otherwise indicated, all further references to “Exhibit A” refer to Exhibit A to the Settlement Agreement between Plaintiffs and Defendant San Francisco, attached hereto as Exhibit

27 1 to the Swain Declaration. 3 Unless otherwise indicated, claim numbers refer to claims brought under the Third Amended
28 Complaint, filed herewith as Exhibit 4 to Swain Declaration.

DAVIS V. CHHS; CASE NO. C00-2532-SBA CLASS ACTION- JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENTS

PAGE 3

1 if San Francisco informs Plaintiffs that it will not establish the TCM Program.

2

3. The Court will retain jurisdiction to (1) preside over San Francisco’s motion for

3 compliance with the Settlement Agreement on or before July 31, 2004; (2) enable the parties to hold

4 monthly progress meetings with Magistrate Judge Chen; and (3) enable Magistrate Judge Chen to

5 monitor and enforce reporting requirements (as set forth in Sections 4.4-4.5 of the Settlement

6 Agreement) prior to the motion for compliance.

7

4. Defendant San Francisco will file a motion to establish compliance with the terms

8 contained in Exhibit A (“Motion for Compliance”) no later than July 31, 2004. Compliance will

9 mean compliance with each section and subsection of Exhibit A and the reporting requirements set

10 forth in sections 4.4-4.5 of the Settlement Agreement.

11

5. The parties agree that no judgment will be entered on the dismissal without prejudice

12 and that judgment will only be entered after there is a dismissal with prejudice and then only as to

13 the claims subject to this Agreement (Claims 1, 4 and 12).

14

6. If Defendant San Francisco establishes at the hearing on its Motion for Compliance

15 that each term of Exhibit A is satisfied, Plaintiffs agree to file a dismissal with prejudice as to those

16 claims encompassed by the Settlement Agreement that relate to assessment (Claims 1, 4 and 12)

17 under the Third Amended Complaint. This dismissal with prejudice shall not affect Plaintiffs’ right

18 to pursue claims 2 and 5 against San Francisco.

19

7. The parties have agreed to a proposed notice to the class, which is contained in

20 Exhibit 3 to Swain Declaration. The parties agree that distribution of the notice will be as follows:

21 Defendant San Francisco will translate the notice into Spanish and Chinese writing and alternative

22 formats (e.g. audio cassette) within 14 days and provide the translated notice to Plaintiffs upon

23 completion. Plaintiffs will proofread and provide comments to San Francisco within 14 days.

24 Defendant San Francisco will distribute the notice to all class members at LHH. San Francisco

25 will publish a copy of the notice at LHH in the Administrative Office and on each floor of the

26 LHH Main Building and Clarendon Hall and at SFGH. San Francisco will also publish the notice

27 in the San Francisco Chronicle for 2 consecutive days. For at-risk class members, not identified at

28 the time of the initial notice, a copy of the notice, in the appropriate translation or alternative

DAVIS V. CHHS; CASE NO. C00-2532-SBA CLASS ACTION- JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENTS

PAGE 4

1 format, if necessary, will be provided within three days of the individual’s being identified as a

2 class member. As indicated above, this form of notice is adequate to provide notice to the class and

3 complies with the due process requirements of F.R.C.P. Rule 23.

4

B. Substantive Settlement Agreement (“Exhibit A”)

5

1. By February 1, 2004, Defendant San Francisco agrees to implement a Targeted Case

6 Management (“TCM”) Program within the San Francisco Department of Public Health (DPH) to

7 conduct screening, assessments, service/discharge planning and ongoing case management for class

8 members, as set forth in section 3.0 of Exhibit A. The TCM Program will be composed of nurses

9 and social workers who will report to the Placement Division of Community Programs at DPH.

10

2. The screening, assessments and service/discharge planning will be consistent with the

11 Division of Community Program’s goal to place class members in the most integrated setting

12 appropriate for their needs. Further, a major component of the Division’s work is to avoid

13 unnecessary institutionalization and assure appropriate utilization of hospital and nursing home

14 resources by promoting appropriate community-based alternatives. The nurses and social workers in

15 the TCM Program shall not be employees of San Francisco General Hospital (“SFGH”) or LHH.

16

3. Staff of the TCM Program will carry an average caseload of no more than 15

17 individuals at a time during the calendar year. “Average Caseload” is the total number of clients in

18 the case manager’s active caseload during the year divided by 12. Staff will conduct screening,

19 assessment, service/discharge planning, and ongoing case management services to eligible class

20 members as appropriate.

21

4. By February 1, 2004, San Francisco shall begin to screen, assess and develop

22 service/discharge plans as appropriate for all at-risk class members in accordance with the agreed-

23 upon protocols and procedures, as set forth in Section 4.3 of Exhibit A.

24

5. By February 1, 2004, San Francisco shall begin to screen and assess all current LHH

25 residents, and develop service/discharge plans as appropriate, in accordance with the agreed-upon

26 protocols and procedures as set forth in Section 4.4 of Exhibit A. At least 50 percent of all current

27 LHH residents who have not been previously screened by the TCM Program shall be screened,

28 assessed, and provided with service/discharge planning services as appropriate, by the TCM

DAVIS V. CHHS; CASE NO. C00-2532-SBA CLASS ACTION- JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENTS

PAGE 5

1 Program by July 31, 2004. All current LHH residents shall be screened and assessed, and provided

2 with a service/discharge plan, as appropriate, by the TCM Program by February 5, 2005.

3

6. By December 1, 2003, Defendant San Francisco shall develop and provide to

4 Plaintiffs’ counsel protocols and procedures by which class members are screened to determine

5 eligibility for TCM Program assessment, service/discharge planning, and ongoing case management

6 services as set forth in Section 4.5 of Exhibit A. Plaintiffs’ counsel will have an opportunity to

7 provide written comments to Defendant San Francisco for consideration within 14 days of receipt.

8

7. Upon screening, or as soon as practicable thereafter, the TCM Program will provide,

9 and document provision of, information about home and community based (HCBS) waivers and

10 refer the class member to all appropriate HCBS waivers.

11

8. By December 1, 2003, Defendant San Francisco shall develop and provide to

12 Plaintiffs’ counsel protocols and procedures by which class members are assessed as set forth in

13 Section 4.6 of Exhibit A. Plaintiffs’ counsel will have an opportunity to provide written comments

14 to San Francisco for consideration within 14 days of receipt.

15

9. By December 1, 2003 Defendant San Francisco shall develop and provide to

16 Plaintiffs’ counsel protocols and procedures by which class members are provided with

17 service/discharge planning as set forth in Section 4.7 of Exhibit A. Plaintiffs’ counsel will have an

18 opportunity to provide written comments to San Francisco for consideration within 14 days of

19 receipt.

20

10. The service/discharge planning process shall inter alia:

21

a. Determine the most integrated setting appropriate to class members’ needs;

22

b. Determine whether the individual meets the essential eligibility requirements

23

for community supports and services in accordance with individual needs and

24

preferences; and

25

c. Include consideration of all community supports and services for which the

26

individual may be eligible, including those outlined in Attachment 4 to

27

Exhibit A. Consideration of community supports and services shall not be

28

limited to currently available resources.

DAVIS V. CHHS; CASE NO. C00-2532-SBA CLASS ACTION- JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENTS

PAGE 6

1

11. Prior to conducting screening, assessments, and service/discharge planning, all TCM

2 Program staff, with the exception of clerical staff, will be trained using the curriculum and materials

3 described in Section 5.0 of Exhibit A.

4

12. Staff of the TCM Program and LHH staff will collaborate on developing and

5 implementing an educational training program for LHH medical social work staff that includes the

6 components contained in Section 5.4 of Exhibit A.

7

13. Ongoing case management services will be provided primarily by TCM Program staff

8 if the TCM Program determines that: (1) the class member is reasonably likely to be discharged to

9 the community within 180 days of development of the Service/Discharge Plan; or (2) the class

10 member has progressed on the Service/Discharge Plan to be within 180 days of discharge; or (3) the

11 class member may require active discharge planning for a period that exceeds 180 days. Ongoing

12 case management by the TCM Program shall be provided in accordance with section 6.5 of

13 Exhibit A.

14

14. Class members who meet the screening criteria and have received an assessment and

15 service/discharge plan shall receive primary case management from LHH social work staff, in

16 accordance with sections 6.2, 6.3, and 6.6 of Exhibit A if they do not meet the criteria above.

17

15. Class members shall be referred to Specialty Mental Health Targeted Case

18 Management as set forth in section 6.7 of Exhibit A.

19

16. By November 1, 2003, Defendant San Francisco, in collaboration with Plaintiffs’

20 counsel, will establish a Community Advisory Committee (“CAC”), as set forth in section 8.1 of

21 Exhibit A. The first meeting will be held in November, 2003. The CAC shall meet on at least a

22 quarterly basis thereafter and more often if needed to carry out its responsibilities. Meetings shall

23 be open to the public and Plaintiffs’ counsel will be informed of meetings in writing at least two

24 weeks in advance if the meetings are changed from the regularly scheduled quarterly date. The CAC

25 will review aggregate data on the screening, assessment, and service/discharge planning processes

26 and make recommendations to San Francisco as set forth in section 8.2(a) of Exhibit A. The CAC

27 will also participate in a consumer satisfaction survey and receive reports on the results of the

28 surveys, as set forth in section 8.2(b) of Exhibit A.

DAVIS V. CHHS; CASE NO. C00-2532-SBA CLASS ACTION- JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENTS

PAGE 7

1

17. By January 5, 2004 Defendant San Francisco shall designate a portion of the existing

2 LHH Patient Library to serve as a Community Resource Center at LHH where residents can gain

3 access to information about community options and services, receive training, attend presentations

4 by community providers about community options, receive peer counseling regarding community

5 living, or talk to community advocates, as set forth in section 9.1 of Exhibit A.

6

18. By January 5, 2004, the TCM Program shall develop a curriculum of presentations

7 for residents of LHH to include at least the components set forth in section 9.2 of Exhibit A, and

8 consider any input from the CAC.

9

19. To the extent peer mentors are available, the TCM Program shall include the services

10 of peer mentors for any class members who request such assistance, as well as those class members

11 who, in the opinion of the staff in the TCM Unit, could benefit from such assistance. All class

12 members shall be informed of the availability of peer mentor assistance during the assessment and

13 service/discharge planning process. Peer mentors shall be individuals with disabilities who live in

14 the community and are knowledgeable about community living. The services provided by peer

15 mentors include those specified in section 9.3 of Exhibit A.

16

20. Beginning in October, 2003, on a monthly basis, Plaintiffs’ Counsel shall be provided

17 with space at LHH to conduct private meetings with LHH residents. LHH staff shall assist in

18 posting notices of upcoming meetings and transporting residents to the meetings, as needed.

19

21. Plaintiffs and Defendant San Francisco have agreed to the form of notice to the class,

20 included as Exhibit 3 to Swain Declaration. Should the Court determine that notice to the class is

21 not required, Plaintiffs and Defendant San Francisco agree to provide notice to the class as set forth

22 in section 10.1 of Exhibit A. Costs of translation and distribution of the notice will be borne by

23 Defendant San Francisco, and will occur as set forth in section 10.1(c) of Exhibit A.

24

22. Class members have the right to appeal, to the extent currently available under law,

25 through the Medi-Cal hearing process set forth in 22 CCR section 51014. Defendant San Francisco

26 will provide information about advocacy resources and appeal rights to all class members as set forth

27 in sections 10.2(b) and (c) of Exhibit A and will provide written notice on a quarterly basis to each

28

DAVIS V. CHHS; CASE NO. C00-2532-SBA CLASS ACTION- JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENTS

PAGE 8

1 class member at LHH of the status of referrals and waitlists for housing and community based

2 services.

3

23. By February 1, 2004, Defendant San Francisco will develop a data collection system

4 to track outcomes for all class members who are provided with screening, assessment,

5 service/discharge planning and/or case management. Information available shall include the areas

6 specified in section 11.1 of Exhibit A.

7

24. During the period prior to resolution of San Francisco’s Motion for Compliance, San

8 Francisco shall provide to Plaintiffs’ counsel by the 10th of each month, a written report on activities

9 undertaken with respect to each section of Exhibit A during the previous month, which shall include

10 detailed progress of the establishment of the TCM Program, and updated information on

11 implementation of the screening, assessment, and service/discharge planning processes, and other

12 components of Exhibit A.

13

25. Once screening, assessments, and service/discharge planning begins, San Francisco

14 will provide to counsel for Plaintiffs: (1) aggregate data as specified in section 11.1of Exhibit A;

15 and (2) a random sample of 15 percent of the screens, assessments, (includ ing PASRR/MI II

16 evaluations if used in lieu of the TCM assessment) and service/discharge plans, completed for each

17 month by the TCM Program, but no less than a total of 15 assessments and service/discharge plans.

18 These assessments and service/discharge plans shall include a sample from both at risk class

19 members and those residing at LHH.

20

26. If the complete data set forth in subpart 11.1 of Exhibit A is not available by the 10th

21 of the month, San Francisco will provide Plaintiffs with a copy of each and every screen, assessment

22 and individual service/discharge plan completed by the TCM Program during the preceding month.

23

27. As soon as available, but no more than 14 days after completion of each of the items

24 set forth below, San Francisco will provide to Plaintiffs’ counsel the information specified as

25 follows:

26

a. Screening, Assessment, and Service/Discharge Planning instrument changes

27

or updates, as specified in section 4.2 of Exhibit A;

28

b. Protocols and procedures for screening, assessment, and service/discharge

DAVIS V. CHHS; CASE NO. C00-2532-SBA CLASS ACTION- JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENTS

PAGE 9

1

planning for class members, as set forth in sections 4.5 – 4.7 of Exhibit A;

2

c. Training curriculum and materials and trainer information, as set forth in

3

section 5.0-5.3 of Exhibit A;

4

d. Information regarding efforts to inform and provide transition services to class

5

members, as set forth in section 6.8 of Exhibit A;

6

e. Membership, agendas, and minutes of the CAC, as set forth in section 8.1 of

7

Exhibit A;

8

f. Consumer survey results and names of consumer volunteers, as set forth in

9

section 8.2(b) of Exhibit A.

10 IV. 11

SETTLEMENT AGREEMENT BETWEEN PLAINTIFFS AND STATE DEFENDANTS:

12

1. Defendant Department of Mental Health (DMH) and its Director, Dr. Stephen

13 Mayberg (collectively “DMH”) will make the following changes in the Pre-Admission Screening

14 and Resident Review with respect to individuals with Mental Illness (PASRR/MI) process:

15 (a) DMH will revise the PASRR/MI Level II Evaluation Form and require its PASRR/MI Level II

16 evaluators to use the revised form in conducting PASRR/MI Level II Evaluations; (b) DMH will

17 revise the DMH Contractor Manual; and (c) DMH will provide training on the revised PASRR/MI

18 Level II Evaluation process to persons conducting PASRR/MI Level II Evaluations.

19

2. DMH will amend the DMH Contractor’s Manual to reflect the revisions stated in

20 Exhibit A of the Settlement Agreement between Plaintiffs and State Defendants, attached to Swain

21 Declaration as Exhibit 2. DMH will complete these revisions, and provide a copy of the revised

22 manual to Plaintiffs’ Counsel by December 1, 2003.

23

3. The parties agree that by October 1, 2004, DMH will adopt the PASRR/MI Level II

24 Evaluation Form, attached as Exhibit B to the Settlement Agreement between Plaintiffs and State

25 Defendants, Exhibit 2 to Swain Declaration, for the performance of PASRR/MI Level II

26 Evaluations, and will require persons performing PASRR/MI Level II Evaluations to begin using the

27 attached form and revised Contractor’s Manual by October 1, 2004.

28

4. DMH will provide training to PASRR/MI Level II evaluators on the revised

DAVIS V. CHHS; CASE NO. C00-2532-SBA CLASS ACTION- JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENTS

PAGE 10

1 PASRR/MI Level II Evaluation process as provided in paragraph 6 of the Settlement Agreement

2 between Plaintiffs and State Defendants (Exhibit 2 to Swain Dec.). Trainings will be completed by

3 September 15, 2004.

4

5. By October 1, 2004, State Defendants will provide counsel for Plaintiffs with a

5 written report certifying that each of the following has been completed and briefly summarizing the

6 activities completed or steps taken to accomplish each:

7

(a) The Contractors’ Manual described in paragraph 3 of the Settlement

8

Agreement between Plaintiffs and State Defendants has been distributed and

9

is being implemented;

10

(b) The Level II form described in paragraph 4 of the Settlement Agreement

11

between Plaintiffs and State Defendants has been implemented and is being

12

used by evaluators; and,

13

(c) The training described in paragraph 6 of the Settlement Agreement between

14

Plaintiffs and State Defendants has been conducted.

15

6. DMH will provide Plaintiffs’ counsel with individualized and aggregate data as set

16 forth in paragraph 8 of Exhibit 2.

17

7. All parties agree to bear their own fees and costs, including but not limited to

18 attorneys’ fees and expert witness fees and costs. Nothing in the Agreement precludes Plaintiffs

19 from seeking an award of attorneys’ fees and costs for time expended and expenses incurred

20 related to any proceedings undertaken to enforce the terms of this Agreement.

21

8. The parties have entered into this Agreement to resolve with finality all pending

22 claims between them and to avoid the time and expense of litigation. After notification that State

23 Defendants have implemented paragraphs 3, 4, and 6, Plaintiffs retain the right to refile claims One,

24 Two, Four, Five, Seven, Eight and Nine of the Third Amended Complaint against State Defendants.

25 Plaintiffs retain the right to refile all claims against State Defendants upon notification that State

26 Defendants are unable to implement paragraphs 3, 4, and 6 of the Agreement.

27

9. The parties agree that this action shall be dismissed, and the parties shall seek an

28 order of the Court, as follows:

DAVIS V. CHHS; CASE NO. C00-2532-SBA CLASS ACTION- JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENTS

PAGE 11

1

(a) Plaintiffs will dismiss without prejudice all claims in the Third Amended

2

Complaint, as to all State Defendants without prejudice upon court approval

3

of the Agreement. Within 10 court days of receiving the written notification

4

described in paragraph 7 from State Defendants, Plaintiffs will either dismiss

5

with prejudice claims Three, Six and Ten as to all State Defendants or will

6

notify counsel for State Defendants that Plaintiffs believe State Defendants

7

have not adequately complied with the requirements of the Settlement

8

Agreement and intend to pursue enforcement proceedings.

9

(b) Upon dismissal of the action—either within 10 days following the notice

10

provided pursuant to paragraph 18(a) of the Settlement Agreement, or within

11

10 days following resolution of the enforcement proceedings, as provided in

12

paragraph 18(a) of the Settlement Agreement—the allegations in claims

13

Three, Six and Ten of the Third Amended Complaint and the prayer for

14

declaratory and injunctive relief shall be fully compromised and settled

15

pursuant to this Settlement Agreement and final judgment as against State

16

Defendants.

17

10. If one party believes that the other party has failed to comply with any term of this

18 Agreement, that party shall notify the other party’s counsel in writing. The notice sha ll specify the

19 term(s) of the Settlement Agreement with which the other party allegedly has failed to comply and

20 the reason(s) for the allegation. Such notification shall propose dates for a meet and confer session.

21 Within 20 days from receipt of the notice, opposing counsel shall provide counsel for the party

22 alleging noncompliance with a written response. The response shall specify whether the party

23 agrees or disagrees with the allegation, the basis for agreement or disagreement and, when

24 appropriate, the steps the party proposes to take to remedy the alleged noncompliance or violation.

25 Within 15 days following receipt of the response, the parties shall meet and confer to discuss

26 resolution of the alleged noncompliance. The parties shall engage in good faith in this meet and

27 confer process prior to seeking judicial relief. No effort by a party to resolve a dispute informally

28 shall be construed to limit the defenses or the relief available to that party in any subsequent court

DAVIS V. CHHS; CASE NO. C00-2532-SBA CLASS ACTION- JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENTS

PAGE 12

1 proceedings.

2

11. The timing of any applications to the Court, notice to the class, and fairness hearing

3 pursuant to this Settlement Agreement shall be coordinated with the corresponding proceedings

4 pursuant to the separate settlement agreement between Plaintiffs and Defendants City and County of

5 San Francisco in this action, attached to Swain Declaration as Exhibit 1.

6

12. The Court’s Order approving this stipulated Settlement Agreement shall continue for

7 a period of 36 months from the date of entry of Judgment. The Court shall retain jurisdiction of this

8 action for the duration of the Order and for such time thereafter as is necessary to effectuate the

9 purposes of this Settlement Agreement. If the Court declines to accept continuing jurisdiction, the

10 terms and conditions of this Settlement Agreement shall nevertheless be fully binding upon the

11 parties as an agreement in settlement of the litigation.

12

13. State Defendants’ obligation to perform this Settlement Agreement is contingent upon

13 the availability of sufficient funds to implement the PASRR/MI evaluation process provided for

14 herein. For that purpose, State Defendants will use their best efforts, including efforts made through

15 the Budget Act to obtain the funding necessary to implement this Settlement Agreement. Such

16 efforts may include representations that support the following principles: (1) the goal that people

17 with disabilities live in the most integrated setting appropriate to individual need and (2) a

18 philosophy for individualized assessment based on the concept of recovery and psycho-social

19 rehabilitation, including client-directed assessment and services planning, strengths-based clinical

20 assessment, the wellness approach to services, and functional assessment of skills. Plaintiffs accept

21 State Defendants’ representations that they will use their best efforts to secure funding.

22 Notwithstanding the provisions of paragraph 18(a) of the Settlement Agreement, Plaintiffs agree that

23 should funding not be obtained, Plaintiffs may not seek enforcement of the Settlement Agreement on

24 that ground, but rather, agree that their only recourse is the re- filing of the complaint in accordance

25 with paragraphs 12 and 28 of the Settlement Agreement.

26

14. If State Defendants notify counsel for Plaintiffs in writing that they are unable to

27 perform the Agreement due to the unavailability of sufficient funds and Plaintiffs refile claims

28 within one year of such notification, State Defendants expressly agree to waive the following

DAVIS V. CHHS; CASE NO. C00-2532-SBA CLASS ACTION- JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENTS

PAGE 13

1 procedural defenses based on the passage of time between the dismissal of this action without

2 prejudice and the time that those claims are refiled, which are defenses based on statutes of

3 limitations, laches, delay in prosecution, claim preclusion, or issue preclusion; and all objections to

4 certification of a class as defined in Section I.

5 V. DEFINITION OF THE SETTLEMENT CLASS

6

The settlement agreement class is the same class as previously stipulated by the parties and

7 subsequently certified by the Court.

8 VI. LEGAL ARGUMENT

9

A. Preliminary Approval of the Settlement Agreement is Proper

10

Class-action Settlement Agreements are generally subject to a two-step approval process:

11 "first the Court conducts a preliminary approval or pre-notification hearing to determine whether the

12 proposed Settlement Agreement is 'within the range of possible approval' or, in other words, whether

13 there is 'probable cause' to notify the class of the proposed Settlement Agreement." Horton v.

14 Merrill Lynch, 855 F.Supp.825, 827 (E.D.N.C. 1994) (citing Armstrong v. Board of School

15 Directors, 616 F.2d 305, 312 (7th Cir. 1980). Preliminary or conditional approval allows parties to

16 avoid the unnecessary expenditure of resources arising from notice to the class of a Settlement

17 Agreement that cannot possibly gain Court approval.

18

If a proposed Settlement Agreement receives preliminary approval, the parties provide notice

19 to the class in a manner determined by the Court. "A District Court has broad discretion in

20 determining the kind of notice to employ in alerting class members to a proposed Settlement

21 Agreement and Settleme nt Agreement hearing, subject to the 'broad reasonableness standards

22 imposed by due process.'" Battle v. Liberty Nat. Life Ins. Co., 770 F.Supp. 1499, 1520 (N.D.Ala.

23 1991), Mendoza v. Tucson School Dist. No. 1, 623 F.2d 1338, 1350-1 (9th Cir. 1980).

24

Once the Court grants preliminary approval and notice is provided, the Court conducts a

25 "Fairness Hearing," at which all interested parties are afforded an opportunity to be heard. Horton at

26 827. At such a hearing, the Court conducts a substantive evaluation of the proposed Settlement

27 Agreement to determine whether it is "fundamentally fair, adequate, and reasonable." San Francisco

28

DAVIS V. CHHS; CASE NO. C00-2532-SBA CLASS ACTION- JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENTS

PAGE 14

1 NAACP v. San Francisco Unified School Dist., 576 F.Supp. 34, 43 (N.D.Cal. 1983), (quoting

2 Officers for Justice v. Civil Service Commission, 688, F.2d 615, 625 (9th Cir. 1982).

3

In this case, a preliminary review of the relevant considerations demonstrates a substantial

4 basis for granting the conditional approval requested by this motion, moving forward with the

5 requested notice, and proceeding to a Fairness Hearing. The proposed Settlement Agreement s are

6 fair and adequate in that Defendants have agreed to undertake significant changes in their procedures

7 for assessment and provision of information about home and community based services, even though

8 the Defendants deny liability and no finding of liability has been made.

9

Plaintiffs' claims against both State and San Francisco Defendants regarding community

10 based long-term care options remain intact. Given the agreement of San Francisco to institute the

11 new assessment and discharge procedures which are designed to identify community-based long-

12 term services where appropriate, it is not feasible for Plaintiffs to pursue their community

13 integration claims against either State or San Francisco Defendants until the new Targeted Case

14 Management Program (TCM Program) has been established and implemented. Because the new

15 TCM Program may not be established until February 2004, the current trial schedule, including a

16 January 2004 cut-off for discovery, does not allow Plaintiffs the opportunity to base the

17 community integration claims for a May 2004 trial on relevant current information. Therefore,

18 the community integration claims have been dismissed without prejudice so that they can be refiled

19 after the establishment of the TCM Program, and according to current assessment and other

20 relevant evidence.

21

The proposed Settlement Agreement is also reasonable. In this case, the Settlement

22 Agreement was reached after substantial Settlement Agreement discussions during which the parties,

23 the class and their counsel had a full opportunity to appraise the strengths and weaknesses of the

24 case. Magistrate Judge Chen supervised the negotiations between the parties.

25

Also significant in evaluating the proposed Settlement Agreement are the risks at trial for

26 both sides, the costs of continuing the litigation, and the delay in achieving the access modifications

27 that continued litigation would entail. Moreover, the parties would have the right to appeal any

28 adverse judgment. Any appeal would be expensive and protracted. This Settlement Agreement,

DAVIS V. CHHS; CASE NO. C00-2532-SBA CLASS ACTION- JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENTS

PAGE 15

1 however, provides immediate benefits to both Plaintiffs and Defendants. Based upon the evaluation

2 of the benefits to the parties offered by the Settlement Agreement, as well as the expense, delay and

3 risk of going forward to trial, the Settlement Agreement is reasonable.

4

B. The Proposed Notice is Adequate

5

Rule 23(e) of the Federal Rules of Civil Procedure states that "[a] class action shall not be

6 dismissed or compromised without the approval of the Court, and notice of the proposed dismissal or

7 compromise shall be given to all members of the class in such manner as the Court directs." Unlike

8 class actions certified under FRCP 23(b)(3), actions certified under FRCP 23(b)(2) contain no strict

9 notice requirements of any kind, thus leaving it to the Court's discretion to determine what notice, if

10 any, should be given. See FRCP 23(c)(2).

11

This class action was certified by the Court under Rule 23(b)(2), pursuant to stipulation of

12 the parties. As a Rule 23(b)(2) class, the Court effectively has complete discretion to determine the

13 extent of notice to be applied.

14

The parties propose notice as follows: Defendant San Francisco will translate the notice

15 attached hereto as Exhibit 3 to Swain Declaration into Spanish and Chinese writing and alternative

16 formats (e.g. audio cassette) and provide the translated notice to Plaintiffs upon completion.

17 Plaintiffs will proofread and provide comments to San Francisco within 14 days. Defendant San

18 Francisco will distribute the notice to all class members at LHH. San Francisco will also post a

19 copy of the notice at LHH in the Administrative Office and on each floor of the LHH Main

20 Building and Clarendon Hall and at SFGH. San Francisco will also publish the notice in the San

21 Francisco Chronicle for (2) consecutive days. For at-risk class members, not identified at the time

22 of the initial notice, a copy of the notice will be provided within three days of being identified as a

23 class member. As indicated above, this form of notice is adequate to provide notice to the class and

24 complies with the due process requirements of FRCP Rule 23.

25

C. The Court Should Approve the Proposed Scheduling Order, Including Setting a

26

Date for the Fairness Hearing

27

28

DAVIS V. CHHS; CASE NO. C00-2532-SBA CLASS ACTION- JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENTS

PAGE 16

1

The parties propose the following general time schedule to provide for notice, comment, and

2 final approval of the Settlement Agreement. The parties are also submitting herewith a proposed

3 scheduling order, with blanks for the Court to set specific dates.

4

First, the parties request approximately six weeks from the time of preliminary approval to

5 mail, post and publish notice in the various forms indicated above. Second, the parties request an

6 additional four (4) weeks following the period for notifying class members in which class members

7 may file objections, and/or notices of intent to appear at the final approval hearing, with such date to

8 be determined by the postmark of the document filed. Third, the parties request two weeks further

9 for the parties to respond to any objections. Fourth, the parties request that the Fairness Hearing be

10 set approximately two weeks after the deadline for responding to objections. This entire schedule

11 totals approximately fourteen weeks from tentative approval to the final hearing.

12 \\\

13 \\\

14 \\\

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DAVIS V. CHHS; CASE NO. C00-2532-SBA CLASS ACTION- JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENTS

PAGE 17

1 \\\

2 \\\

3 \\\

4 VII. CONCLUSION

5

For the reasons discussed above, Plaintiffs and Defendants request that the Court issue

6 tentative approval of the Class-Action Settlement Agreement, approve the form of the proposed

7 notice, and issue the proposed schedule order, including setting a date for a final approval Fairness

8 Hearing. The parties further request final approval of the Settlement Agreement at the time of the

9 Fairness Hearing.

10

Respectfully submitted,

11

PROTECTION AND ADVOCACY, INC.

12

DISABILITY RIGHTS EDUCATION AND DEFENSE FUND

AARP FOUNDATION LITIGATION

13

BAZELON CENTER FOR MENTAL HEALTH LAW

14

NATIONAL SENIOR CITIZENS LAW CENTER LAW OFFICES OF ANDREW THOMAS SINCLAIR

15

HOWREY SIMON ARNOLD & WHITE, LLP

16

17 Dated: 18 19
20 21

By: _________________________________ Kim Swain Eric Gelber Mike Stortz Elissa Gershon PROTECTION AND ADVOCACY, INC. 433 Hegenberger Rd., Suite 220 Oakland, CA 94621

22

Attorneys for Plaintiffs

23

DENNIS J. HERRERA,

JOANNE HOEPER

24

BLAKE LOEBS

ELLEN SHAPIRO

25

26 Dated:
27

By: ___________________________________ Blake Loebs

28

DAVIS V. CHHS; CASE NO. C00-2532-SBA CLASS ACTION- JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENTS

PAGE 18

1

City Attorney’s Office

1390 Market Street, 6th Floor

2

San Francisco, CA 94102

3

Attorneys for Defendants

4

CITY AND COUNTYOF SAN FRANCISCO

5

BILL LOCKYER, Attorney General of the State of California

6

DOUGLES PRESS, Supervising Deputy Attorney General

7

BEVERLEY R. MEYERS

8

9 Dated: 10
11
12

By: __________________________________ Beverley R. Meyers
Deputy Attorney General 455 Golden Gate Avenue, Ste. 11000
San Francisco, CA 94102-7004

13

SHARTSIS, FRIESE & GINSBURG LLP

14

ARTHUR J. SHARTSIS

TRACY L. SALISBURY

15

AMY L. HESPENHEIDE

16

17 Dated: ____________
18 19 20 21 22

By: ___________________________________ Tracy L. Salisbury SHARTSIS, FRIESE & GINSBURG LLP One Maritime Plaza, 18th Floor San Francisco, California 94111
Attorneys for Defendants STATE DEFENDANTS

23 F:\DOCS\LHH\PLEADINGS\Jt Motion for Prelim approval of settlement.doc Last Modified: 10/14/2003 12:19 PM 24

25

26

27

28

DAVIS V. CHHS; CASE NO. C00-2532-SBA CLASS ACTION- JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENTS

PAGE 19

 </s> NOTICE OF CLASS ACTION

TO: RESIDENTS AND FORMER RESIDENTS OF LAGUNA HONDA HOSPITAL (LHH), AND PERSONS ELIGIBLE FOR ADMISSION TO LHH OR ON A WAIT LIST FOR ADMISSION.

The federal court has authorized a class action lawsuit against the City and County of San Francisco on behalf of LHH residents. If you are an adult Medi-Cal beneficiary, and you are now a LHH resident, or were a LHH resident within the last two years, or eligible for admission to LHH or on a wait list for admission, then you are a member of the class and this Lawsuit will affect your rights. This Lawsuit, called Chambers v. City and County of San Francisco, Case No. C06-06346, is pending in federal district court, at 450 Golden Gate Avenue, San Francisco, CA 94102.

The Plaintiffs are asking the Court to find that the City has violated the Americans with Disabilities Act and related laws that prohibit discrimination against people with disabilities. They are also asking the Court to order the City to take steps to ensure that people with disabilities do not have to go to or stay in LHH if they want to and can receive care in a home or community setting. This Lawsuit does not include any claims for monetary damages. The City contends that it already complies with all disability rights laws requiring community-based care.

The Court desires broad community involvement and invites class members to intervene, consistent with Court rules. The Court wishes to have the benefit of as much input as practical and to give class members a say in any relief that is ordered.

If you have questions about this Lawsuit or if you wish to provide input on the appropriate relief or remedy, you may contact the attorneys for the parties:

Attorneys for class plaintiffs:

Elissa Gershon,

Kimberly Swain

Elizabeth Zirker

PROTECTION & ADVOCACY, INC.

1330 Broadway, Suite 500

Oakland, CA 94612

Telephone: (800) 776-5746

TTY:

(800) 649-0154

Facsimile:

(510) 267-1201

Chambers@pai-ca.org

Attorneys for the City: James M. Emery Kathleen S. Morris CITY ATTORNEY’S OFFICE Fox Plaza 1390 Market Street, 6th Floor San Francisco, CA 94102 Telephone:(415) 554-3800 Facsimile: (415) 554-3837

Please do not telephone the Court or the Court clerk's office for information.

If you are a member of the class, you do not need to take any action at this time. You will be informed in future notices of any final orders from the Court and any settlement of the case. If you believe that your interests will not be adequately represented by Plaintiffs’ counsel, you have a right to ask the Court to let you intervene to present any claims you may have. If you wish to intervene, you should consult your own lawyer if you have one. Please review the contents of this Notice carefully. If you are a member of the class, you will be legally bound by future orders and rulings from the Court.
EXHIBIT A

Dated: ________, 2007

_____________________________________ RICHARD W. WIEKING, CLERK OF THE COURT UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

EXHIBIT A

F:\DOCS\Chambers\PLEADINGS\Class Cert\notice\Final\Class Notice - Final.doc
EXHIBIT A

 </s> Case3:06-cv-06346-WHA Document42 Filed05/14/07 Page1 of 2

United States District Court For the Northern District of California

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

10 MARK CHAMBERS, WOODROW FALLS, JR., M.H., PHILLIP K., GERALD SCOTT,
11 MARY T. and THE INDEPENDENT LIVING RESOURCE CENTER OF SAN
12 FRANCISCO, et al.,

13

Plaintiffs,

No. C 06-06346 WHA
ORDER APPROVING STIPULATED PROTECTIVE ORDER SUBJECT TO STATED CONDITIONS

14 v.

15 CITY AND COUNTY OF SAN

FRANCISCO,

16

Defendant.

17

/

18 The stipulated protective order submitted by the parties is hereby APPROVED, subject to
19 the following conditions:
20 1. The parties must make a good-faith determination that any
21 information designated “confidential” warrants protection under Rule 26(c) of the
22 Federal Rules of Civil Procedure. Designations of material as “confidential” must
23 be narrowly tailored to include only material for which there is good cause. A
24 pattern of over-designation may lead to an order de-designating all or most
25 materials on a wholesale basis.
26 2. In order to be treated as confidential, any materials filed with the
27 Court must be lodged with a request for filing under seal in compliance with Civil
28 Local Rule 79-5. Please limit your requests for sealing to only those

Case3:06-cv-06346-WHA Document42 Filed05/14/07 Page2 of 2

United States District Court For the Northern District of California

1

narrowly-tailored portions of materials for which good cause to seal exists.

2

Please include all other portions of your materials in the public file and

3

clearly indicate therein where material has been redacted and sealed. Each filing

4

requires an individualized sealing order; blanket prospective authorizations are no

5

longer allowed by Civil Local Rule 79-5.

6

3. Chambers copies should include all material — both redacted and

7

unredacted — so that the chambers staff does not have to re-assemble the whole

8

brief or declaration. Although chambers copies should clearly designate which

9

portions are confidential, chambers copies with confidential materials will be

10

handled like all other chambers copies of materials without special restriction, and

11

will typically be recycled, not shredded.

12

4. Any confidential materials used openly in court hearings or trial

13

will not be treated in any special manner absent a further order.

14

5. This order does not preclude any party from moving to

15

de-designate information or documents that have been designated as confidential.

16

The party seeking to designate material as confidential has the burden of

17

establishing that the material is entitled to protection.

18

6. The Court will retain jurisdiction over disputes arising from the

19

proposed and stipulated protective order for only 90 days after final termination

20

of the action.

21

22

IT IS SO ORDERED.

23

24 Dated: May 14, 2007. 25

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

26

27

28

2

 </s> Case3:06-cv-06346-WHA Document35 Filed01/30/07 Page1 of 1

United States District Court For the Northern District of California

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

10 MARK CHAMBERS, WOODROW FALLS,

11

JR., M.H., PHILLIP K., GERALD SCOTT, MARY T. and THE INDEPENDENT LIVING

12

RESOURCE CENTER OF SAN FRANCISCO, et al.,

13

Plaintiffs,

14

v.

15 CITY AND COUNTY OF SAN FRANCISCO,

16

Defendant.

17

/

No. C 06-06346 WHA
ORDER DENYING REQUEST TO STAY LITIGATION

18

Finding no good cause, the parties’ joint request to stay litigation for settlement

19 purposes is DENIED.

20

21

IT IS SO ORDERED.

22

23 Dated: January 30, 2007 24
25

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

26

27

28

 </s> Case3:06-cv-06346-WHA Document70 Filed11/16/07 Page1 of 1

United States District Court For the Northern District of California

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

10 MARK CHAMBERS, WOODROW FALLS,

11

JR., M.H., PHILLIP K., GERALD SCOTT, MARY T. and THE INDEPENDENT LIVING

12

RESOURCE CENTER OF SAN FRANCISCO, et al.,

13

Plaintiffs,

14

v.

15 CITY AND COUNTY OF SAN FRANCISCO,

16

Defendant.

17

/

No. C 06-06346 WHA
ORDER RE PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT

18

Before ruling on the request for administrative relief, the Court wants to meet with

19 counsel and consider the preliminary approval of the settlement agreement. There is no point in

20 going through the administrative process for approval if the Court refuses the settlement

21 agreement anyway. Please bring a copy of the settlement agreement to a hearing set for

22 TUESDAY, NOVEMBER 20, 2007, at 9:00 A.M.

23

24

IT IS SO ORDERED.

25

26 Dated: November 16, 2007. 27
28

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

 </s> Case3:06-cv-06346-WHA Document73 Filed11/26/07 Page1 of 1

United States District Court For the Northern District of California

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

10 MARK CHAMBERS,

11

Plaintiff,

12

v.

13 CITY AND COUNTY OF SAN FRANCISCO,

14

Defendant.

15

/

No. C 06-06346 WHA
ORDER RE REQUEST FOR ADMINISTRATIVE RELIEF

16

The Court has received a letter from counsel stating that the parties agree as follows:

17 (i) no individual claims for damages by class members are waived pursuant to the settlement

18 agreement; and (ii) the parties jointly recommend a fee award to class counsel in the amount of

19 $300,000 for fees and costs, to be paid over time, and $200,000 for compliance oversight

20 activities, and if the Court awards fees to plaintiffs’ counsel in a different amount, either party

21 may withdraw from the settlement agreement. In light of this letter, the Court approves the

22 parties’ joint request for administrative relief from the current case management order. All of

23 the dates will slip EIGHT weeks.

24

25

IT IS SO ORDERED.

26

27 Dated: November 26, 2007. 28

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

 </s> Case 3:06-cv-06346-WHA Document 93 Filed 09/18/2008 Page 1 of 4

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3 MARK CHAMBERS, et al.
4

5

Plaintiffs,

6

v.

7 CITY AND COUNTY OF SAN FRANCISCO
8

9

Defendant.

) Case No.: C06-06346 WHA

)

) [PROPOSED] ORDER GRANTING

) )
)

FINAL APPROVAL OF SETTLEMENT AGREEMENT

)

) CLASS ACTION

)

)

)

)

10 Plaintiffs Mark Chambers, Woodrow Falls, Jr., M.H., Gerald Scott, and Mary T.; and the
11 organizational Plaintiff, Independent Living Resource Center of San Francisco (ILRCSF)
12

(“plaintiffs”), and defendant City and County of San Francisco have requested final approval from 13

this Court of the Settlement Agreement filed as Exhibit 1 to the April 24, 2008 Declaration of Elissa 14

15 Gershon.

16

The Court, having held a hearing and considered the joint moving papers for the parties and

17 the Settlement Agreement, no objections being lodged, and for good cause appearing, finds that:

18 WHEREAS, the standards for approval as set forth in Federal Rule Civil Procedure 23(e)(2) are met

19 in that the proposed Settlement Agreement is fair, reasonable and adequate as set forth below:

20

1. The standard by which a proposed settlement is to be evaluated is whether the

21 settlement is fundamentally fair, adequate and reasonable. Officers for Justice v. Civil Service

22 Commission of the City and County of San Francisco, 688 F.2d 615, 625 (9th Cir. 1982). This

23 determination involves a balancing of factors which may include: “the strength of plaintiffs’ case;

24 the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class
25 action status throughout the trial; the amount offered in settlement; the extent of discovery 26 completed, and the stage of the proceedings; the experience and views of counsel; the presence of a 27
governmental participant; and the reaction of the class members to the proposed settlement. The 28

- 1 -
CHAMBERS ET. AL V. CITY AND COUNTY OF SAN FRANCISCO CASE NO. C06-06346 WHA [PROPOSED] ORDER GRANTING FINAL APPROVAL OF SETTLEMENT AGREEMENT

Case 3:06-cv-06346-WHA Document 93 Filed 09/18/2008 Page 2 of 4

1 relative degree of importance to be attached to any particular factor will depend upon and be dictated

2 by the nature of the claim(s) advanced, the type(s) of relief sought, and the unique facts and

3 circumstances presented by each individual case.” Id. at 625 (internal citations omitted).

4

a. The Settlement Is Fair.

5

An examination of the fairness of a proposed settlement includes determining that the

6 agreement is not the product of collusion between the negotiating parties. Officers for Justice, 688
7 F.2d at 625. In this case, the parties have demonstrated that the agreement has been reached as a
8
result of “arms-length” negotiations, and that discussion of fees was kept separate from substantive 9

10 discussions. In terms of the experience of counsel, Plaintiffs have been represented in this matter by

11 non-profit legal services agencies, and the law firm of Howrey LLP, pro bono. Co-Counsel for the

12 Plaintiffs are located nationwide and have extensive experience litigating systemic cases on behalf of

13 individuals with disabilities. Co-counsel include the AARP Foundation Litigation in Washington

14 D.C.; the Bazelon Center for Mental Health Law in Washington D.C.; Disability Rights and

15 Education Defense Fund (DREDF) in Berkeley, CA; and Howrey LLP, a global law firm.

16

The proposed Settlement Agreement is also fair in that this is an action for declaratory and

17 injunctive relief, not for money damages, and the relief afforded to named plaintiffs is not greater

18 than that afforded to class members as a whole. The Agreement contains grievance procedures for

19 Class Members as well as quality assurance and monitoring. The Agreement does not require class

20 members to accept community-based services if they do not wish to receive those services. Finally,

21 the Settlement Agreement affirmatively provides that no individual claims for damages by class

22 members are waived pursuant to the Agreement.

23

b. The Settlement Is Adequate.

24 Determination of the adequacy of a settlement includes the degree to which the primary

25 concern of plaintiffs in filing the suit is addressed by the proposed agreement. Officers for Justice,

26 688 F.2d at 628. This Settlement Agreement addresses and disposes of all claims filed by Plaintiffs

27

28

- 2 -
CHAMBERS ET. AL V. CITY AND COUNTY OF SAN FRANCISCO CASE NO. C06-06346 WHA [PROPOSED] ORDER GRANTING FINAL APPROVAL OF SETTLEMENT AGREEMENT

Case 3:06-cv-06346-WHA Document 93 Filed 09/18/2008 Page 3 of 4

1 against Defendant. Defendant has agreed to make significant changes in its home and community-

2 based services systems, including but not limited to:

3

1) Increased access to community-based services including through access to

4

the Medi-Cal Nursing Facility Waiver;

5

2) Creation of a Diversion and Community Integration Program (DCIP), an

6

innovative, collaborative program of the San Francisco Departments of

7

Public Health and Aging and Adult Services;

8

3) Enhancement of Case Management and Wrap-Around Services;

9

4) Enhancement of Mental Health and Substance Abuse Services;

10

5) A significant increase in community-based housing for class members,

11

including preserving housing for class members who are hospitalized or

12

at Laguna Honda for short term stays; the Laguna Honda Hospital Rental

13

Subsidy Program (“LHHRSP”), through which San Francisco will secure

14 independent, scattered-site housing for 500 class members over the next

15 five (5) years; and access to other City-funded housing.

16 Plaintiffs’ counsel will monitor San Francisco’s compliance with the provisions of the
17 Settlement Agreement for the duration of the Agreement, including through data collection and
18 reporting activities, and assistance to class members with grievance procedures. The Court will
19 retain jurisdiction over the Agreement to ensure compliance.
20 c. The Proposed Agreement Is Reasonable.
21
Significant factors in evaluating the reasonableness of a proposed Settlement Agreement are 22

the risks at trial for both sides, the costs of continuing the litigation, and the delay and/or preclusion 23

in achieving the favorable results for class members that continued litigation, including appeals, 24

25 would entail. Officers for Justice, 688 F.2d at 625. This Settlement Agreement provides immediate,

26 significant, and individually tailored benefits to class members without waiving individual damages

27 claims. Litigation of this case to its conclusion, including possible appeals, would have

28 significantly delayed the provision of benefits to class members. Based upon the evaluation of the

- 3 -
CHAMBERS ET. AL V. CITY AND COUNTY OF SAN FRANCISCO CASE NO. C06-06346 WHA [PROPOSED] ORDER GRANTING FINAL APPROVAL OF SETTLEMENT AGREEMENT

Case 3:06-cv-06346-WHA Document 93 Filed 09/18/2008 Page 4 of 4

1 benefits to the Parties and unnamed class members offered by the Settlement Agreement, including

2 the absence of any objections to the agreement, as well as the expense, delay and risk of going

3 forward to trial, the Settlement Agreement presents a reasonable resolution of the dispute.

4

5 WHEREAS, Notice has been given to the Class in the manner directed by the Court; and 6

7 WHEREAS, There have been no objections to the Settlement Agreement; 8

9 THEREFORE, IT IS HEREBY ORDERED THAT:

10

1.

Final approval of the Settlement Agreement filed as Exhibit 1 to the April 24, 2008

11

Declaration of Elissa Gershon is GRANTED.

12

13

2.

Judgment is accordingly ENTERED.

14

3.

The Court awards attorneys’ fees as the Parties have jointly recommended in

15 Sections XIV and XVIII of their Settlement Agreement.

16

17

4.

The Court will retain jurisdiction over this matter for the purpose of assuring

18

compliance with the terms of the Settlement Agreement, as set forth in Paragraph

19

XV of the Agreement.

UNITED S ALIFORNIA

OURT NORTH

20 It is SO ORDERED.
21

22 23 DATED:

_S_e_p_te_m__b_er__1_8_, _2_0_0_8_

24

TATES DISTRICT C
_H_O_N__._W__IL_IT_L_IAI_S_M_S_HO__. _OA_LR_S_DU__EP_R_E__D_______________
UNITED STATES DISTRICT JUDGE

25

Judge William Alsup

26

27 28

F:\DOCS\Chambers\PLEADINGS\Orders\Proposed orEdRerNgrDanItiSnTg fRinIaCl aTppOroFvaCl.doc

- 4 -
CHAMBERS ET. AL V. CITY AND COUNTY OF SAN FRANCISCO CASE NO. C06-06346 WHA [PROPOSED] ORDER GRANTING FINAL APPROVAL OF SETTLEMENT AGREEMENT

 </s> Case 3:06-cv-06346-WHA Document 53 Filed 07/12/2007 Page 1 of 10

United States District Court For the Northern District of California

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

10 MARK CHAMBERS, WOODROW FALLS,

11

JR., M.H., PHILLIP K., GERALD SCOTT, MARY T. and THE INDEPENDENT LIVING

12

RESOURCE CENTER OF SAN FRANCISCO, et al.,

13

Plaintiffs,

14

v.

15 CITY AND COUNTY OF SAN FRANCISCO,

16

Defendant.

17

/

No. C 06-06346 WHA
ORDER GRANTING MOTION FOR CLASS CERTIFICATION

18

INTRODUCTION

19

In this disability-rights case, individual plaintiffs — Mark Chambers, Woodrow Falls,

20 Jr., M.H., Phillip K., Gerald Scott, and Mary T. — move for class certification. Defendant City

21 and County of San Francisco filed a statement of non-opposition. For the below-stated reasons,

22 the motion is GRANTED.

23

STATEMENT

24

In this action, plaintiffs seek declaratory and injunctive relief under (1) the Americans

25 with Disabilities Act, 42 U.S.C. 12131–34; (2) Section 504 of the Rehabilitation Act of 1973,

26 29 U.S.C. 794 & 794a; and (3) California Government Code Section 11135, Cal. Gov’t Code

27 11135. The ADA and the Rehabilitation Act prohibit the unnecessary segregation of people

28

Case 3:06-cv-06346-WHA Document 53 Filed 07/12/2007 Page 2 of 10

United States District Court For the Northern District of California

1 with disabilities from society. Section 11135 also prohibits unnecessary institutionalization by

2 entities receiving state funds (Compl. ¶¶ 2, 111–12, 118–19, 125–30).

3

Plaintiffs in this action are disabled individuals who need long-term care services.

4 Many plaintiffs and members of the class they seek to represent are elderly. Plaintiffs assert

5 that they and other class members have been unnecessarily institutionalized for many years at

6 Laguna Honda Hospital and Rehabilitation Center, an institution owned and operated by

7 defendant. Plaintiffs allege that they are forced to live on large, open wards with approximately

8 37 beds, each separated only by hospital curtains. These wards allegedly lack privacy and a

9 home-like environment. Over one thousand residents live in these conditions at Laguna Honda

10 (Comp. ¶¶ 2, 17–52, 81).

11

According to the complaint, plaintiffs and the putative class should be but are not

12 receiving long-term care services in the most integrated setting appropriate to their individual

13 needs. The complaint contends that the majority of Laguna Honda’s residents are capable of

14 living and would prefer to live in a more integrated setting. Plaintiffs allege that defendant is

15 responsible for offering plaintiffs and proposed class members community-based services and

16 housing that could meet many of the needs of class members (Compl. ¶¶ 7 51, 53, 54, 67–71).

17

The complaint further alleges, and discovery has revealed, that many in the proposed

18 class are capable of living and would prefer to live in a setting more integrated into the

19 community. One consultant’s assessment was that putative class members could be integrated

20 if, for example, high-quality residential options had vacancies. Apparently, however, such

21 vacancies are rare. Furthermore, the consultant also found that putative class members at

22 Laguna Honda could be discharged if adequate community options were offered to them. The

23 complaint alleges that such options are not being offered (Compl. ¶¶ 4, 79–80, 130; Su Decl.

24 Exh. A at 7254–55).

25

Specifically, over a thousand Laguna Honda residents have been assessed by

26 defendant’s Targeted Case Management Program as being capable of living at home or in the

27 community if housing and appropriate services were provided to them. Despite this assessment,

28 2

Case 3:06-cv-06346-WHA Document 53 Filed 07/12/2007 Page 3 of 10

United States District Court For the Northern District of California

1 there are numerous barriers preventing these residents from being discharged. Plaintiffs cite a

2 letter by San Francisco City Controller, Ed Harrington, to Mayor Gavin Newsom. The letter

3 states, in relevant part:

4

San Francisco’s approach to long-term care and skilled nursing is

different in both scale and delivery method from that of any other

5

public health system, but not in progressive ways. . . . As a result,

approximately one out of every 700 people in the City is living in

6

Laguna Honda Hospital. The City has effectively

institutionalized more of its population, across a wider spectrum

7

of needs, than anywhere in the country. By [the Department of

Health’s] own assessments, a significant fraction of the Laguna

8

Honda population does not need hospital-based long term care

and could be effectively treated in another setting — at home or

9

in the community.

10 (Su Decl. Exh. A at 7210).

11

A 2003 letter from the United States Department of Justice found “that the City

12 continues to be in violation of the ADA and continues to fail to ensure that [Laguna Honda]

13 residents are being served in the most integrated setting appropriate to meet their needs,”

14 specifically explaining that a “significant number of [Laguna Honda] residents are

15 unnecessarily isolated in the nursing home” (Su Decl. Exh. C at 7388–89).

16

Plaintiffs allege that defendant’s failure to carry out the “integration mandate” of federal

17 law has caused them to be either unnecessarily institutionalized or at risk of unnecessary

18 institutionalization. Plaintiffs further contend that defendant has failed to utilize existing

19 long-term care options appropriately and has also failed to adjust community options to meet

20 plaintiffs’ needs. Defendant’s policies have allegedly caused plaintiffs and other putative class

21 members to be segregated and isolated. They seek to receive services allowing them to remain

22 in or return to their homes and communities if they so choose (Compl. ¶¶7, 89–105, 79–80,

23 130).

24

Plaintiffs here seek to represent a class defined as:

25

All adult Medi-Cal beneficiaries who are:

26

(1) residents of Laguna Honda Hospital and Rehabilitation

Center; or

27

28 3

Case 3:06-cv-06346-WHA Document 53 Filed 07/12/2007 Page 4 of 10

United States District Court For the Northern District of California

1

(2) on waiting lists for Laguna Honda Hospital and Rehabilitation

Center; or

2

(3) within two years post-discharge from Laguna Honda Hospital

3

and Rehabilitation Center; or

4

(4) patients at San Francisco General Hospital or other hospitals

owned or controlled by the City and County of San Francisco,

5

who are eligible for discharge to Laguna Honda Hospital and

Rehabilitation Center.

6

Only the individual named plaintiffs move for class certification. The organizational

7

plaintiff, Independent Living Resource Center of San Francisco, has not joined in the motion

8

and would not be part of the proposed class.

9

ANALYSIS

10

Pursuant to Federal Rule of Civil Procedure 23(a), a class can only be certified if “(1)

11

the class is so numerous that joinder of all members is impracticable, (2) there are questions of

12

law or fact common to the class, (3) the claims or defenses of the representative parties are

13

typical of the claims or defenses of the class, and (4) the representative parties will fairly and

14

adequately protect the interests of the class.” If those four requirements are met, the Court must

15

then find that the action falls into one of the categories of class actions recognized in Rule

16

23(b). Plaintiffs here move pursuant to Section (b)(2) of Rule 23 for certification of the class.

17

Rule 23(b)(2) requires that “the party opposing the class has acted or refused to act on grounds

18

generally applicable to the class, thereby making appropriate final injunctive relief or

19

corresponding declaratory relief with respect to the class as a whole.”

20

Although defendants do not oppose class certification here, the Court “has an

21

independent obligation to decide whether an action brought on a class basis is to be maintained

22

even if neither of the parties moves for a ruling under [Rule 23(c)(1)].” Rodriguez v. East Texas

23

Motor Freight, 505 F.2d 40, 49–50 (5th Cir. 1974), cited with approval in Gibson v. Local 40,

24

Supercargoes & Checkers of the Int’l Longshoremen’s & Warehousemen’s Union, 543 F.2d

25

1259, 1263 n.2 (9th Cir. 1976).

26

27

28 4

Case 3:06-cv-06346-WHA Document 53 Filed 07/12/2007 Page 5 of 10

United States District Court For the Northern District of California

1

1.

RULE 23(A) REQUIREMENTS.

2

A. Numerosity.

3

Pursuant to Rule 23(a)(1), a class action may be maintained only if “the class is so

4 numerous that the joinder of all parties is impracticable.”

5

The numerosity requirement in this case is satisfied. Laguna Honda is a 1,200-bed

6 skilled-nursing facility with over 1,100 residents. One exhibit submitted by plaintiffs indicated

7 that there were about 960 Medi-Cal beneficiaries living in Laguna Honda as of June 2006 (Su

8 Decl. Exh. D, diagram 2). In addition, the proposed class would extend even beyond the

9 hundreds currently residing at Laguna Honda to include people who are on waiting lists to get

10 into Laguna Honda, people who have been discharged from Laguna Honda in the past two

11 years, and patients at other defendant-controlled hospitals eligible for discharge to Laguna

12 Honda.

13

This order also notes that courts have recognized that joinder may be impracticable

14 when “members of the class, who are by definition poor and disabled, do not have the economic

15 means to pursue remedies on an individual basis.” Lynch v. Rank, 604 F. Supp. 30, 36 (N.D.

16 Cal. 1984). The proposed class here is made up entirely of individuals who qualify for

17 Medi-Cal benefits based on their inability to pay for medial care (Compl. ¶ 67). Joinder of

18 these individuals, many of whom may be indigent, would be impractical.

19

B. Commonality.

20

Rule 23(a)(2) requires that there be “questions of law or fact common to the class.” The

21 commonality requirement is satisfied where a “lawsuit challenges a system-wide practice or

22 policy that affects all of the putative class members.” Armstrong v. Davis, 275 F.3d 849, 868

23 (9th Cir. 2001). The Ninth Circuit explained in Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019

24 (9th Cir.1998): “Rule 23(a)(2) has been construed permissively. All questions of fact and law

25 need not be common to satisfy the rule. The existence of shared legal issues with divergent

26 factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal

27 remedies within the class.”

28 5

Case 3:06-cv-06346-WHA Document 53 Filed 07/12/2007 Page 6 of 10

United States District Court For the Northern District of California

1

This action alleges, on a class-wide basis, that defendants are not in compliance with

2 federal and state statutes requiring it to afford access to home and community-based services for

3 persons with disabilities, where those people are able to live in the community. This order

4 agrees with plaintiffs that questions of law and fact common to the class include, for example,

5 whether defendant has violated the ADA and Rehabilitation Act by allegedly requiring

6 plaintiffs to be segregated unnecessarily from their communities (Compl. ¶ 111–12).

7

Plaintiffs also allege that defendant, as a recipient of federal Medicaid funding, must

8 offer qualified individuals support services to enable them to live in the most integrated setting

9 appropriate to their needs. Plaintiffs allege that defendant fails to offer and promptly provide

10 Medicaid services that all class members are eligible to receive. These services are also

11 necessary for class members to live in more integrated, community settings. Defendant’s

12 alleged noncompliance with these federal requirements is also an issue common to all class

13 members.

14

Plaintiffs state that they do not seek to relocate all individuals with disabilities out of

15 Laguna Honda into the community. They do, however, request relief that would compel

16 defendant “to offer and provide, as appropriate, class members with long-term care services in

17 their homes and communities, instead of in an unnecessarily segregated institutional facility”

18 (Br. 10–11).

19

The Court is concerned that determining whether defendant is handling each class

20 member’s situation appropriately may need to be evaluated on a case-by-case basis. At the

21 present time, this concern is not enough to overcome the “permissive” Rule 23(a)(2)

22 commonality requirement. Plaintiffs allege that as to all class members, defendant is violating

23 the above-described federal and state anti-discriminatory provisions. Moreover, it is reasonable

24 to assume that all patients would prefer to live in more home-like or integrated settings instead

25 of the huge open wards described by plaintiffs. This order finds that the commonality

26 requirement is satisfied.

27

28 6

Case 3:06-cv-06346-WHA Document 53 Filed 07/12/2007 Page 7 of 10

United States District Court For the Northern District of California

1

C. Typicality.

2

Rule 23(a)(3) requires that the claims of the class representatives “be typical of the

3 claims . . . of the class.” The claims of the purported class representative need not be identical

4 to the claims of other class members, but the class representative “must be part of the class and

5 possess the same interest and suffer the same injury as the class members.” Gen. Tel. Co. of Sw.

6 v. Falcon, 457 U.S. 147, 156 (1982). The test “is whether other members have the same or

7 similar injury, whether the action is based on conduct which is not unique to the named

8 plaintiffs, and whether other class members have been injured by the same course of conduct.”

9 Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992).

10

Here, each of the named plaintiffs is typical of the class as a whole. Each named

11 plaintiff is a person with a disability who is or has been institutionalized at Laguna Honda.

12 Each plaintiff alleges that defendant has an established policy that has caused plaintiff to be

13 denied reasonably prompt access to home or community-based services. Plaintiffs’ claims that

14 they are unable to leave Laguna Honda notwithstanding an expressed desire to live in a more

15 integrated setting is typical of the class they seek to represent.

16

Plaintiffs’ claims — like those they assert on behalf of unnamed class members — are

17 that defendant has uniformly failed to provide long-term care services appropriate for living in a

18 home or community-based setting as required by law. Although the circumstances of each

19 individual class member will undoubtedly differ, this order finds that the named plaintiffs’

20 claims are sufficiently typical of the proposed class to satisfy Rule 23(a)(3).

21

D. Adequacy of Representation.

22

Under Rule 23(a)(4), individuals representing the class must be able “fairly and

23 adequately to protect the interests” of all members in the class. There are two adequacy

24 requirements. “First, the named representatives must appear able to prosecute the action

25 vigorously through qualified counsel, and second, the representatives must not have

26 antagonistic or conflicting interests with the unnamed members of the class.” Lerwill v. Inflight

27

28 7

Case 3:06-cv-06346-WHA Document 53 Filed 07/12/2007 Page 8 of 10

United States District Court For the Northern District of California

1 Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978). This order finds that Rule 23(a)(4) is

2 satisfied.

3

The class representatives’ interests here do not conflict with those of the proposed class.

4 The individual plaintiffs do not seek personal damages or other individualized relief to the

5 exclusion of other class members. Instead, plaintiffs seek broad injunctive relief for the benefit

6 of the entire class. The papers submitted do not suggest any collusion that would hinder

7 individual plaintiffs’ ability to pursue the litigation on behalf of the class.

8

Additionally, plaintiffs’ attorneys here — four public-interest organizations and one

9 private law firm — all have extensive experience litigating federal class actions involving

10 disability and health programs. Nothing suggests that plaintiffs’ counsel are unqualified to

11 prosecute this action.

12

2.

RULE 23(B)(2) REQUIREMENTS.

13

Plaintiffs seek to certify the class under Rule 23(b)(2), which requires that “the party

14 opposing the class has acted or refused to act on grounds generally applicable to the class,

15 thereby making appropriate final injunctive relief or corresponding declaratory relief with

16 respect to the class as a whole.” Courts have interpreted Rule 23(b)(2) to mean that where the

17 primary purpose in bringing the action is to seek injunctive relief, the action is appropriately

18 certified under Rule 23(b)(2). Elliott v. Weinberger, 564 F.2d 1219, 1228 (9th Cir. 1977). With

19 respect to Rule 23(b)(2) actions, the Ninth Circuit has explained: “It is sufficient if class

20 members complain of a pattern or practice that is generally applicable to the class as a whole.

21 Even if some class members have not been injured by the challenged practice, a class may

22 nevertheless be appropriate.” Walters v. Reno, 145 F.3d 1032, 1046 (9th Cir. 1998).

23

Certification here is appropriate under Rule 23(b)(2). Defendant’s policies affect all

24 members of the proposed class. The alleged violations of federal law appear to have equal

25 application to all class members. The proposed class seeks injunctive relief that will require

26 defendant to create a plan that would ensure that all class members are given the choice to

27

28 8

Case 3:06-cv-06346-WHA Document 53 Filed 07/12/2007 Page 9 of 10

United States District Court For the Northern District of California

1 receive long-term care at home or in the community. Rule 23(b)(2) certification is appropriate

2 in this case.

3

3.

NOTICE.

4

With respect to notice, the Ninth Circuit has held: “When an action is certified under

5 Rule 23(b)(2), . . . absent class members are not required to receive notice or to have the

6 opportunity to opt-out of the suit. Due process requires only that the class members be

7 adequately represented. The trial court may in its discretion in a class action certified under

8 Rule 23(b)(2) direct that notice be given under Rule 23(d).” EEOC v. Gen. Tel. Co., 599 F.2d

9 322, 334 (9th Cir. 1979) (citations omitted). Plaintiffs here request that because this action only

10 involves claims for declaratory and injunctive relief, there is no need to provide absent class

11 members with notice and the opportunity to opt out. They request that the Court not require

12 notice to unnamed plaintiff class members.

13

Nonetheless, notice will be required. Given the potential importance of the issues to

14 various community groups and individuals and the myriad ways in which the issues might arise,

15 the Court wishes to have the benefit of as much input as practical and, at all events, to give class

16 members a say in any relief that is ordered. It has also been the Court’s experience that

17 circumstances such as those before the Court can lead to collusive settlements. To mitigate this

18 risk, the Court would like to allow broad community participation in the suit. To effectuate this,

19 broad notice will be required to protect the class members. This will give the class members an

20 opportunity to intervene and share their views.

21

CONCLUSION

22

For the foregoing reasons, the class proposed by plaintiffs is hereby CERTIFIED. By

23 NOON ON JULY 20, 2007, counsel shall meet and confer and submit a proposed form of class

24 notice in plain English, a proposed method of serving and/or publication, and a timetable for

25

26

27

28 9

Case 3:06-cv-06346-WHA Document 53 Filed 07/12/2007 Page 10 of 10

United States District Court For the Northern District of California

1 effecting notices, all to be done consistently with the case schedule previously set. The notice

2 should state that the Court desires broad community involvement and invites intervention

3 consistent with Federal Rule of Civil Procedure 24.

4

5

IT IS SO ORDERED.

6

7 Dated: July 12, 2007. 8

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 10

 </s> Case3:06-cv-06346-WHA Document86 Filed05/08/08 Page1 of 2

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3 MARK CHAMBERS, et al.
4

5

Plaintiffs,

6

v.

7 CITY AND COUNTY OF SAN FRANCISCO
8

9

Defendant.

10

) Case No.: C06-06346 WHA

)

) [PROPOSED] ORDER GRANTING

) PRELIMINARY APPROVAL OF

) )

SETTLEMENT AGREEMENT,

) DIRECTING NOTICE TO THE CLASS,

) FOR A SCHEDULING ORDER AND

) FAIRNESS HEARING, AND TO VACATE

) THE TRIAL DATE )

) CLASS ACTION

11

Plaintiffs Mark Chambers, Woodrow Falls, Jr., M.H., Phillip K., Gerald Scott, and Mary T.;

12 and the organizational Plaintiff, Independent Living Resource Center of San Francisco (ILRCSF)

13 (“plaintiffs”), and defendant City and County of San Francisco have filed a Joint Request for

14 Preliminary Approval of Settlement Agreement, Directing Notice to the Class, for a Scheduling

15 Order and Fairness Hearing and for vacating the trial date of July 28, 2008. The Court, having

16 considered the joint moving papers of the Parties and the Settlement Agreement and proposed notice

17 to the class submitted therewith, for good cause appearing, IT IS HEREBY ORDERED THAT:

18

1. The Settlement Agreement as set forth in Exhibits 1 and 2 to Gershon Declaration is

19

preliminarily approved, subject to notice to the class and final review and approval at

20

the Fairness Hearing as provided for below.

21

2. The parties shall provide class members with notice in the form attached as Exhibit 3

22

to the accompanying Gershon Declaration, and in the manner specified in the

23

Settlement Agreement and Joint Motion. The proposed notice to the class is adequate

24

under Rule 23 of the Federal Rules of Civil Procedure.

25

3. The parties shall adhere to the following general time schedule:

26

a. Notice to the class shall be mailed, posted and/or published in the manner

27

specified in the Settlement Agreement and Joint Motion by _Ju_n_e__6_, _2_0_0,8

28

twenty (20) days after the Court enters this Order;

-1-
CHAMBERS ET. AL V. CITY AND COUNTY OF SAN FRANCISCO CASE NO. C06-06346 WHA [PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT, DIRECTING NOTICE TO THE CLASS, FOR A SCHEDULING ORDER AND FAIRNESS HEARING, AND TO VACATE THE TRIAL DATE

Case3:06-cv-06346-WHA Document86 Filed05/08/08 Page2 of 2

1

b. Each class member shall have untilA__u_g_u_st_4_,_2_0_0_8, four weeks after the date

2

for mailing/posting/publishing, in order to file an objection, and/or provide

3

notice of intent to appear, as the case may be, under the procedures specified

4

in the Settlement Agreement, Joint Motion, and Notice to Class. Such date

5

shall be determined by the postmark of the document filed;

6

c. The parties shall thereafter have two weeks after the final date for filing

7

objections to file responses to objections, if any, from class members.

8

4. The Court shall conduct a Fairness Hearing on _9_/_1_8_/0_8__a_t _, two weeks after the date

12:00 pm

9

for parties to respond to objections, or such other time as the court may schedule, for

10

the purpose of adjudging final approval of the Settlement Agreement.

11

5. The trial date of July 28, 2008 and pretrial deadlines are vacated.

UNITED S ALIFORNIA

OURT NORTH

12 13 14 DATED: 15

____M__a_y_8_,_2_0_0_8____

TATES DISTRICT C
__________________________________________ HON. WILLGIRAAMNHTE. DALSUP UNITED STATES DISTRICT JUDGE

16

Judge William Alsup

17 18

F:\docs\chambers\pLEADINGS\orders\Proposed order granting motion for fairness hearing 4-15-08.doc ERN DISTRICT OF C

19

20

21

22

23

24

25

26

27

28

-2-
CHAMBERS ET. AL V. CITY AND COUNTY OF SAN FRANCISCO CASE NO. C06-06346 WHA [PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT, DIRECTING NOTICE TO THE CLASS, FOR A SCHEDULING ORDER AND FAIRNESS HEARING, AND TO VACATE THE TRIAL DATE

 </s> UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

MARK CHAMBERS, WOODROW

)

FALLS, JR., M.H., PHILLIP K.

)

GERALD SCOTT, MARY T. and THE )

INDEPENDENT LIVING RESOURCE )

CENTER OF SAN FRANCISCO, et al. )

)

Plaintiffs,

)

)

vs.

)

)

CITY AND COUNTY OF SAN

)

FRANCISCO,

)

)

Defendant.

)

SETTLEMENT AGREEMENT
(CLASS ACTION)

I. INTRODUCTION
On October 11, 2006, Plaintiffs brought claims against City and County of San Francisco (hereafter, "San Francisco") alleging violations of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213; the Rehabilitation Act of 1973, 29 U.S.C. § 504; and California Government Code Sections 11135 and 11139. The
individual named Plaintiffs Mark Chambers, Woodrow Falls Jr., M.H., Phillip K.,
Gerald Scott, and Mary T.; the plaintiff class members; the organizational Plaintiff Independent Living Resource Center San Francisco; and City and County of San Francisco now enter into this Settlement Agreement ("Agreement") with the intent to work collaboratively to implement this Agreement and to enhance access to home and community based living and service options for Plaintiffs and class members.
II. RECITALS
A. The Parties enter into this Agreement in mutual recognition and support of class members' goals to live in the most integrated settings appropriate to their needs and preferences with appropriate services and supports.

Chambers, et at. v. CCSF, Settlement Agreement

Page 1 of33

B. The Parties intend, through this Settlement Agreement, that class members who are appropriate for and do not oppose community placement be provided with appropriate community-based housing and supports in a timely manner.
C. San Francisco plans to rebuild Laguna Honda as a 780 bed skilled nursing facility. Plaintiffs do not agree that a facility of this size is needed or preferred by class members.
D. The Parties believe that resolving this matter through negotiation rather than adversariallitigation is in the best interests of the Plaintiff class. Their agreement to settle the case is the outcome of negotiations and bargaining and is not an admission ofliability by San Francisco.
E. This Settlement Agreement is made and entered into in consideration of the mutual promises herein contained by the Parties. It shall only become effective and binding upon the Parties at such time as, after a fairness hearing, it is approved by the Court pursuant to Rule 23(e), Federal Rules of Civil Procedure.
F. This Settlement Agreement is not intended to interfere with medical treatment decisions of class members' treating physicians.
G. Consistent with Olmstead v. L.e., 527 U.S. 581, 602 (1999), San Francisco "generally may rely on the reasonable assessments of its own professionals in determining whether an individual 'meets the essential eligibility requirements' for habilitation in a community-based program" as set forth in this Agreement.
H. Nor will this Settlement Agreement be interpreted as preventing San Francisco from performing duties otherwise required under local, state and federal law.
I. The Parties agree that for purposes of this Agreement, the terms "will" and "shall" shall be interpreted to mean "shall."

Chambers, et al. v. CCSF, Settlement Agreement

Page 2 of33

III. DEFINITIONS
The following definitions apply to this Settlement Agreement.
A. "Answer" refers to Defendant City and County of San Francisco's Answer to Plaintiffs' Complaint filed on December 22, 2006 in Chambers, et ai. v. City and County a/San Francisco, Case No. C0606346 WHA, in the United States District Court for the Northern District of California.
B. "Assisted Living" means a package of services to assist individuals with their activities of daily living, which may include attendant care, meals assistance, transportation, home nursing, case management, 24-hour supervision, laundry, housekeeping, and medication management as needed. Individuals can receive assisted living services, for example, while living in their own apartments or houses; a subsidized housing complex with on-site supports; a licensed community care facility (Residential Care Facility for the Elderly (RCFE) or Adult Residential Facility (ARF»; or a Continuing Care Retirement Community. Assisted living can include housing with supports, such as independent housing with adult day health care on site.
C. "Class Members" means: All adult Medi-Cal beneficiaries who are: (1) residents ofLHH; or (2) on waiting lists for LHH; or (3) within two years post-discharge from LHH; or (4) patients at San Francisco General Hospital or other hospitals owned or controlled by the City and County of San Francisco, who are eligible for discharge to LHH.
D. "Community Behavioral Health Services, (Formerly Community Mental Health Services)" and "CBHS" refer to the program under the San Francisco Department of Public Health which provides services to San Francisco residents under the Medi-Cal Specialty Mental Health Waiver Services (SMHS), I Bronzan-McCorquodale Act,2 Adult and Older Adult Mental Health System of Care Act,3 and the Mental Health Services Act4•

1 CAL. WELF. & INST. CODE §§ 14680 et seq.; CAL. CODE REGS. tit. 9, §§ 1810 et seq. 2 CAL. WELF. & INST. CODE §§ 5600 et seq. 3 CAL. WELF. & INST. CODE § 5802(d)(4). 4 The MHSA is codified in a variety of sections of the Welfare and Institutions Code as well as the Revenue and Tax Code. For a list of exact citations, see
http'!!www,dmh,cabwnet gQvlMHSAldocs!meeting!l2·1 7·2004iMental Health Services Act Full text.pdf

Chambers, et ai, v. CCSF. Settlement Agreement

Page 3 of33

1. Services include but are not limited to: Assertive Community Treatment or "ACT", crisis intervention, counseling, case management, intensive case management, specialty mental health services, individual rehabilitation, Supportive Housing, residential treatment, residential care, medication management and a full range of substance abuse services.
2. "Specialty Mental Health Services (SMHS)" means: (a) Rehabilitative Mental Health Services, including, in relevant part: mental health services, medication support services, day treatment intensive, day rehabilitation, crisis intervention, crisis stabilizations, adult residential treatment services, crisis residential treatment services, psychiatric health facility services; (b) psychiatric inpatient hospital services; (c) targeted case management; (d) psychiatrist services; and (e) psychologist services.5
3. "Assertive Community Treatment" or "ACT" is a type of case management which means a team-based approach to delivering comprehensive and flexible treatment, support, and effective services to individuals who are diagnosed with severe mental illness and who have needs that have not been well met by traditional approaches to delivering services. 6
4. "Individual Rehabilitation" refers to therapies and interventions that are designed to provide reduction of mental disability and improvement or maintenance of functioning consistent with the goals ofleaming, development, independent living and enhanced self-sufficiency and that are not provided as a component of adult residential services, crisis residential treatment services, crisis intervention, crisis stabilization, day rehabilitation, or intensive day treatment. 7
E. "Community Living Fund" refers to a fund established under the San Francisco Administrative Code § 10.100-12 and designed to assist class members and other individuals with disabilities who are leaving institutional settings or are at risk of institutionalization, by providing a

SCAL. CODE REGS. tit. 9, § 1810.247. 'bttp:llmenta1health.samhsa.gov/cmhs/communitysupportltoolkits/community/ACTinfoPMHA.asp 7 CAL. CODE REGS. tit. 9 §§ 1810.227; 1810.243.

Chambers. et al. v. CCSF. Settlement Agreement

Page4of33

variety of services including community-based case management and money management services and purchase of service programs.
F. "Complaint" refers to Plaintiffs' First Amended Complaint for Declaratory and Injunctive Relief filed on October 12, 2006 in Chambers, et al. v. City and County ofSan Francisco, Case No. C0606346 WHA, in the United States District Court for the Northern District of California.
G. "Department of Public Health" or "DPH" refers to San Francisco's health department authorized by the San Francisco Charter section 4.110 to provide health services, including long-term care services, in the City and County of San Francisco.
H. "Department of Aging and Adult Services" or "DAAS" refers to San Francisco's department, including the Commission on Aging, as set forth in sections 5.50 through 5.53 of the Administrative Code.
1. "Diversion and Community Integration Program" or "DCIP" refers to the program that San Francisco's Departments of Public Health and Aging and Adult Services shall collaboratively develop to provide an integrated approach for individuals who require long-term care, including those individuals referred for admission to, and diversion and discharge from, LHH, with the goal of placing those individuals in the most integrated setting that is appropriate to class members' needs and preferences, pursuant to this Settlement Agreement.
J. "Horne and Community Based Waiver Services" or "HCBS Waivers" means anyone and/or all of California's Medi-Cal Home and Community Based Services waivers pursuant to Section 1915(c) of the Social Security Act, codified at 42 U.S.C. § 1396n.
K. "Independent housing" refers to scattered site housing in apartments or homes which is not licensed by the State. Such housing can be subsidized by San Francisco or other governmental entities (such as through the U.S. Department of Housing and Urban Development) and/or paid for in whole or in part by the tenant.
L. "Leno Waiver" refers to Assembly Bill 2968, Calif. Welf. & Inst. Code § 14132.24, sponsored by Assemblyman Mark Leno and developed with the goal of expanding community-based options in San Francisco for

Chambers. et al. v. CCSF. Settlement Agreement

Page 5 of33

people with disabilities who would otherwise require or be at high risk of requiring more costly institutional care so that they can remain in the least restrictive and most homelike environment while receiving healthrelated services.
M. "LHH" means Laguna Honda Hospital and Rehabilitation Center in San Francisco, California.
N. "LHH Rent Subsidy Program" or "LHHRSP" refers to Defendant's program designed to locate and subsidize a network of existing scattered site housing units to facilitate class members' timely discharge and/or diversion from LHH.
O. "Medi-Cal" refers to the term used by the State of California to describe the State's Medicaid program, set forth at California Welfare & Institutions Code Section 14000 et seq.
P. "Most integrated setting" means the most integrated setting appropriate to the individual class member's needs in accordance with the Americans with Disabilities Act, 42 U.S.C section 12131 et seq. and 28 C.F.R. section 35. 130(d).
Q. "Nursing Facility/Acute Hospital Waiver" or "NF/AH Waiver" refers to one of the State Medi-Cal Home and Community-Based waiver programs, which combines three Medi-Cal HCBS waivers, the Nursing Facility AlB, Subacute, and In-Home Medical Care Waivers, and which provides class members with the option to choose from a variety of inhome long-term care services, rather than receive these services in an institution. Cal. Welf. & Inst. Code §§14137; 14l32.99(a-f).
R. "Program of All-inclusive Care" or "PACE" is a federal and state funded program to provide nursing home-eligible individuals, aged 55 and above, with a complete program of community-based health and healthrelated services including preventative, primary and acute medical services and long-term care. PACE provides all medical care (including 24-hours-a-day as appropriate), aPACE Day Health Center, home care services and transportation. Cal. Welf. & Inst. Code §§ 14590-14598.
S. "PASRR Level II Evaluation" means the evaluation completed for class members identified on the PAS/PASRR Level I Screen as having a suspected mental health or developmental disability, pursuant to Pre-

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Admission Screening and Resident Review requirements in 42 U.S.C. Section 1396r and 42 C.F.R. Section 483.100 et seq.
T. "Plaintiffs" or "Plaintiff class" means organizational plaintiff, the Independent Living Resource Center San Francisco (ILRCSF); Mark Chambers; Woodrow Falls Jr.; M. H.; Phillip K.; Gerald Scott; Mary T.; and the class of plaintiffs that the United States District Court for the Northern District of California certified in this case on July 12,2007.
U. "Person-centered" means focused on the person's expressed goals, desires, cultural and language preferences, abilities and strengths, as well as healthlwellnesslbehavioral issues and skill development/training needs relevant to community living.
V. "RTZ" or "RTZ Associates" refers to the independent contractor or its successors in interest, retained by Defendant to manage various City databases, including the TCM Program's data. RTZ is located at 150 Grand Avenue, Suite 201 Oakland, California, 94612 and at http://W\vw.rtzassociates.com.
W. "San Francisco," "City" or "Defendant," means the City and County of San Francisco, and all of its departments, agencies, officers, directors, managing agents, attorneys, employees, and persons acting in concert with it.
X. "SFGH" means San Francisco General Hospital in San Francisco, California.
Y. "Supportive Housing" refers to subsidized housing with support services including the "Direct Access to Housing Program."
Z. "Short term" means individuals admitted to LHH for (90) ninety days or less.
AA. "Transition services" means services to assist a class member in the transition from an institutional to a community based setting, including counseling, habilitation, skill development or training, peer mentoring, site visits, move-in costs or other services as appropriate.
BB. The terms "Targeted Case Management" or "TCM" and "case management" refer to a variety of federal, state, and county-funded

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programs that provide assistance to class members to access needed medical, social, financial, and other services, including but not limited to: housing and transportation; needs assessment; setting needs objectives; individual services planning; service scheduling; crisis assistance planning; and periodic evaluation of service effectiveness.
THEREFORE, the Parties stipulate as follows:
IV. PROVISIONS FOR NAMED PLAINTIFFS
A. For each named plaintiff who has been discharged from LHH, the Parties shall convene a meeting by December 1, 2007, in order to determine if community services and supports are adequate or if additional planning and/or services are needed, and shall develop and implement a plan to secure those services within an agreed-upon timeline.
B. For each named plaintiff who resides at LHH, the Parties shall convene a meeting by January 1, 2008, in order to determine the appropriate and desirable community housing and supports needed by the plaintiff and shall develop and implement a plan to secure those services within an agreed-upon timeline.
C. San Francisco shall, as desired by the Plaintiff and appropriate, make available a rental subsidy for independent housing, including DPH's Direct Access to Housing units where appropriate, for named Plaintiffs who are eligible for and prefer to receive services from the Nursing Facility Waiver or other funding source as set forth in section VIII.BA, at any time after the Parties' execution ofthis Agreement.
V. ACCESS TO NURSING FACILITY WAIVER
The purpose of this section is to maximize opportunities for class members to access home and community-based services through the Nursing Facility/Acute Hospital Waiver, which offers class members enhanced home-based service options as an alternative to placement at Laguna Honda. To that end, San Francisco shall:
A. By December 1,2007 appoint a staff person from DAAS on a temporary basis and then will appoint a permanent person to serve on the DCIP as a HCBS Waiver point person who will: coordinate NF/AH Waiver and other services including housing, meals, and transportation; provide support to potential and qualified providers in the application and

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approval process with the State; and act as a liaison between Waiver providers and the State;
B. On an ongoing basis, recruit and support community-based non-profit agencies to develop sufficient capacity and competence to serve class members. Such efforts shall include:
1. Targeted outreach and recruiting of community-based non-profit agencies with disability, language and cultural competence to serve the specific needs of class members and will include, but not be limited to: mental health providers; AIDS providers; Chinese and other Asian community providers; and
2. Holding periodic information sessions for potential Waiver providers.
C. Continue to refer potentially eligible class members for the NFlAH Waiver at the time of screening by TCM, the DCIP, or the DAAS LongTerm Care Screening and Intake Unit for an eligibility determination and placement on the referral list;
D. Coordinate with the State Department of Health Care Services, In-Home Operations Division so that referred class members are placed on the NFlAH Waiver referral list, notwithstanding any agreement that allows San Francisco to prioritize actual delivery ofNF/AH Waiver services;
E. Through its designee, 1) arrange for the timely Waiver evaluation of the class member by the State; 2) attend the in-person evaluation by the State; and 3) make timely referrals to prospective Waiver service providers; and
F. Collaborate with Class Counsel, who will assist with: recommending providers; development of materials; individual and technical assistance; and legislative advocacy.
VI. DIVERSION AND COMMUNITY INTEGRATION PROGRAM (DCIP)
A. By July 3 I, 2008, San Francisco, through the Departments of Public Health and Aging and Adult Services, shall make fully operational, as set forth below, a Diversion and Community Integration Program (DCIP). One purpose of the DCIP is to provide an integrated approach for

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individuals referred for admission to, and diversion and discharge from, LHH, with the goal of placing those individuals in the most integrated setting that is appropriate to their needs and preferences.
B. By March 1,2008, San Francisco shall develop and implement a written outreach plan so that LHH referral sources understand the changes to the LHH referral processes. Such plan will indicate that all referrals to LHH shall be made through the DCIP (except as set forth below) and explain the process and time1ines for referral to the DCIP. The outreach plan shall also provide that San Francisco will coordinate all discharges (subject to the exceptions below) through the DCIP.
C. Eligibility/Referral Process:
1. All referrals for admission to LHH shall be processed through the DCIP except in the following circumstances:
a. Class members who are admitted to short-tenn rehabilitation units at LHH may be admitted without being processed through the DCIP. However, at the point at which the class member's stay at LHH is anticipated to exceed (90) ninety days, or if the stay exceeds (90) ninety days, or if the class member is transferred from the rehabilitation unit to another LHH unit, then the individual shall be referred to the DCIP within (3) three business days ofthe change in status.
b. ' Class members who are patients at SFGH who are referred for admission to LHH for a short-tenn stay for medical treatment and/or to allow for the development and implementation of a Community Living Plan by the DCIP may be admitted without being processed through the DCIP, but shall be referred to the DCIP prior to, or within 3 business days of, admission to, LHH.
2. Class members will be referred to the DCIP prior to admission to LHHwho:
a. are at San Francisco General Hospital or community hospitals or nursing facilities who are referred for admission to LHH;

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b. are living in the community and have requested or are referred for admission to LHH, including referrals from Adult Protective Services or the Public Guardian's office.
3. Class members who are residing at LHH will be referred to the DCIP within (3) three business days who:
a. Are assessed by the TCM Program as having a preference for community placement;
b. Are determined by the TCM Program to be reasonably likely to be discharged to the community within 180 days;
c. Are current residents who have lived at LHH for more than six months and express a preference for discharge within 180 days; and/or
d. need the services ofthe DCIP in order to be discharged to the community within 180 days.
4. Class members who are patients at SFGH and who are diverted from admission to LHH through placement in a community-based transitional or short-term placement (e.g., in- or out-of-county licensed residential care facility, psychiatric or skilled nursing facility) shall be referred to the DCIP prior to or within (3) three days of diversion. Diversions to out-of-county placements shall not be made without the consent of the class member.
5. Class members who face imminent placement or readmission to LHH shall be referred to the DCIP on an expedited basis in order to avoid admission or readmission if feasible and/or in the best interests of the class member.
6. Class members and their family, friends and advocates may selfrefer to the DCIP.
7. The DCIP shall maintain a waitlist for assessment and plan development if necessary, and, ifwaitlisted for more than two weeks, class members shall be informed by phone or in person after each DCIP meeting of their status on the waitlist.

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D. DCIP Unit:
1. The DCIP shall include adequate and appropriate staff to provide timely assessments and Community Living Plan development and shall have sufficient expertise and resources to address the particular needs of class members in a timely way. The Unit may include City staff as follows:
a. DPH: TCM staff from SFGH and LHH; community case managers; and LHH Social Services;
b. DAAS: IHSS Discharge Liaison; Long-Term Care Intake and Screening Unit staff; Quality Assurance Manager; Long-Term Care Operations Director; Community Integration Coordinator; HCBS Waiver point person;
c. DPH Housing and Urban Health: Staff overseeing LHH Rental Subsidy Program;
d. Other San Francisco staff or community providers or consultants as needed to provide expertise on provision of community housing and services.
2. The Community Integration Coordinator will:
a. Be the final decision-maker for the DCIP team, unless the Coordinator delegates this function to another team member on a particular referral;
b. Function as a liaison between the DCIP, LHH, and community agencies and service providers;
c. Identify training needs for DCIP members, LHH staff, community agencies, and class members; and
d. Work to eliminate systemic barriers to discharge or diversion, such as streamlining links between institutional services and community-based alternatives and ensuring timely delivery of community based services and housing.

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3. The DCIP Unit will meet as necessary, e.g., weekly or more frequently if necessary, to: discuss each referral; review medical and psychosocial assessments; ensure that expressed preferences of class members, as identified in assessments and the Laguna Honda Hospital Resident Living Preference Survey, are prioritized in the planning process; and formulate a comprehensive Community Living Plan for each class member, as set forth in section VLE. below.
E. Development of Community Living Plan:
1. Within (14) fourteen days of referral to the DCIP, the DCIP team shall develop a Community Living Plan for each class member referred to the program, so that all necessary services are identified to facilitate a successful discharge or diversion from LHH. The plan will be developed based on the class member's expressed preferences and assessed needs.
2. The Plan will include provision of and timelines for securing the range of services needed by the class member, such as: case management, including intensive case management; attendant care; health care management, including primary care and nursing care as appropriate; HCBS waiver services; Adult Day Health Care (ADHC); transportation; mental health and substance abuse treatment; assertive community treatment; personal emergency response services; assistance with meals; money management; and housing.
3. The Plan will indicate who is responsible for securing or arranging for each identified service need and shall clearly identifY the lead case manager for each class member.
4. The Plan shall indicate the class member's stated preferred living arrangement and, if that is not the living arrangement to be pursued, the reasons why and whether any action will be taken to secure the preferred living arrangement in the future.
5. Each class member will have a reasonable amount oftime to review his or her Community Living Plan. Each class member will have the opportunity to sign his or her Community Living Plan and

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to indicate agreement or disagreement with all or part of the Plan. Any disagreements shall be noted on the Plan.
F. Peer Support: San Francisco shall develop the capacity, as part of community living planning, to provide peer support to class members.
VII. PROVISION OF/REFERRAL FOR CASE MANAGEMENT AND WRAP-AROUND SERVICES:
A. San Francisco shall: 1) implement class members' Community Living Plans in a timely manner; 2) adequately staff the DCIP to accomplish this; 3) establish sufficient capacity in the Community Living Fund pursuant to section 10.100-12 of the S.F. Administrative Code to provide case management and purchase identified services to meet class members' needs, including their language and medical needs; and 4) allocate sufficient resources to accomplish these tasks.
B. Case Management: San Francisco shall be responsible for providing and/or referring to case management entities as follows:
I. All class members shall first be considered for and referred to NF/AH and/or other HCBS waivers, as appropriate;
2. Class members who are not eligible or appropriate for Waiver case management shall be provided with other case management as appropriate, including CBHS case management.
3. Community Living Fund: Class members who are not eligible for the case management described above shall be referred, as appropriate, to the Community Living Fund for case management and purchase of services.
4. Community-based case management forinstitutionalized class members: If the class member is already connected to a community-based case manager, San Francisco shall use best efforts to maintain such connection, unless the class member's needs have changed to warrant a change in case management.
5. Class members diverted from LHH Placement: Class members from SFGH who are diverted into placement in a communitybased transitional or short-term placement (e.g., in- or out-of-

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county licensed residential care facility, psychiatric or skilled nursing facility) shall receive case management as identified through the DCIP planning process. At the time of diversion, the case manager shall develop a transition plan that documents the expected length of stay at the transitional placement, steps that need to be taken to secure a preferred, permanent alternative, and the case manager shall promptly refer the individual to the DCIP Unit, as set forth VLC.4.
6. Upon discharge to the community, class members identified as needing intensive case management shall be visited, in person, at least once per week for the first month, bi-weekly for the remainder of the first quarter, and at least monthly thereafter, unless the individual needs of the class member require case management of a different frequency. Exceptions providing for fewer client visits shall only be made with a supervisor's approval and shall be noted in the client's file.
C. Wrap-Around Services: Class members shall be referred for or provided with appropriate wrap-around services as identified in their Community Living Plan. Such services shall be offered through a HCBS Waiver, the Community Living Fund, and/or other sources, and shall be intended to complement and support community-based independent housing.
D. Discharge Meeting: Not less than two weeks prior to any discharge, the lead case manager shall convene a transition meeting which shall include the class member and community providers who will be providing services to the class member upon discharge, as appropriate, to confirm that needed services will be in place at the time of discharge. The class member's family and/or circle of support will be invited to this transition meeting, as well as an advocate if requested.
VIII. HOUSING
The intent of this section is to preserve, provide, and monitor community-based housing for all class members for whom such housing is appropriate and preferred, in a timely manner. It is the intent of this Agreement that housing provided to class members be accessible, affordable and of good quality, and shall complement the services and supports to class members pursuant to this Agreement and govermnent entitlements.

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A. Preservation of Housing
By December 1,2007, San Francisco shall establish and implement a policy to preserve housing for class members who are temporarily hospitalized or placed for a short-term stay at LHH. This written policy shall include:
1. Steps to secure Temporary Institutionalization Benefits (TI) for potentially eligible class members, including:
a. Upon admission to LHH (or SFGH if appropriate), if it is determined that the expected stay of an individual is (90) ninety days or less, a facility physician shall certifY this fact to the Social Security Administration (SSA);
b. In determining what is necessary to maintain a home or living arrangement, all types of housing should be considered, including SRO rooms;
c. If an individual is homeless but has a storage space for his/her belongings, TI benefits shall be applied to cover the costs of that storage;
d. IfTI benefits are refused and the individual has no other means of covering the expense, San Francisco shall bear the cost of maintaining such storage space.
2. Providing assistance to eligible individuals in applying for SSI benefits if they are not already receiving such benefits.
3. Other Costs and Support: San Francisco will take reasonable steps to preserve existing housing for class members whose anticipated stay at LHH is 120 days or less. San Francisco will consider providing assistance for a longer period, up to 180 days, if appropriate. These steps may include, as necessary and appropriate: rent and utilities payments, communicating with landlords, securing and maintaining sanitation of home, and making arrangements for mail and other services/necessities, as well as pets when reasonably feasible.

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B. Laguna Honda Hospital Rent Subsidy Program
By December 1,2007, San Francisco shall make operational the "Laguna Honda Hospital Rent Subsidy Program" hereafter the "LHHRSP."
1. Purpose: The purpose of the LHHRSP is to augment housing options for class members by securing a network of scattered site independent housing units, including apartments, to facilitate timely discharge from LHH and, as feasible, diversion of class members at risk of LHH placement.
2. Project Implementation and Operation: The LHHRSP will be designed and implemented as a collaborative effort between the Depmiment of Public Health and the Department of Aging and Adult Services. Both departments will solicit and welcome input regarding the program from key stakeholders.
3. Program Description: Under the LHHRSP, San Francisco will subsidize housing to ensure that class members pay no more than 50% of their income toward rent. San Francisco shall consider providing larger subsidies if necessary to secure or retain housing for class members. Housing units available will include a range of options in terms oflocation, accessibility, and number of bedrooms to ensure that they meet the needs of class members.
4. Eligibility: Priority for LHHRSP housing will be given to class members who prefer to live in independent housing and are eligible for the Nursing Facility and/or other Home and Community-Based Waivers, PACE program services, and CBHS services, including but not limited to specialty mental health services and ACT. Class members' preferences for housing options will be determined by the LHH Resident Living Preferences Surveyor other means.
5. Program ContractoriUnit Identification: By July 6,2008, San Francisco will contract with an entity whose charge will be to systematically search the real estate market for units appropriate for the LHHRSP. This entity shall be charged with exploring all feasible options, including the private for-profit and the private not-for-profit market. Housing units being sought will range from studios to 2-bedrooms but there will be flexibility for other types

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of housing configurations that might be needed, such as larger units and houses to allow for shared living arrangements. Housing searches in safe neighborhoods with easy access to public transportation, community amenities, and culturally specific activities for class members will be prioritized.
6. Prior to finalizing its Request for Proposals for Program Contractors, San Francisco will provide Plaintiffs' counsel with a draft copy of the RFP. Plaintiffs' counsel will have up to (14) fourteen days to comment and make recommendations as to the RFP and San Francisco will consider these recommendations.
7. Unit Inspections: The Program Contractor will be responsible for inspection of the units prior to leasing, and for ongoing quality monitoring of units in the LHHRSP.
8. Modifications of Units: Ifunits can be reasonably modified to better accommodate the accessibility needs of class members, San Francisco will provide for such modifications in a timely manner. Examples of these modifications include the installation of grab bars, various safety alarms and strobes, wheelchair ramps, and modification to kitchens and bathrooms where feasible.
9. Allocation of Accessible Units: By June 30, 2008, San Francisco, through the LHHRSP program, will develop and implement a policy to provide and retain wheelchair accessible housing units for class members who need such units.
10. Landlord/Tenant Services: San Francisco, through the LHHRSP program, shall provide assistance as needed to facilitate the resolution of any landlord-tenant issues.
II. Duration of Housing: LHHRSP recipients can remain in their housing as long as their clinical and financial circumstances allow them to meet their responsibilities as a tenant. San Francisco will ensure that housing is not lost during hospitalization for up to 180 days. There will be no program attendance requirements. LHHRSP recipients are tenants and will have the same rights and responsibilities as any other tenants in San Francisco.

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12. Coordination of Services and Transition: San Francisco shall arrange for class members who receive housing through the LHHRSP to receive the services and supports identified in their Community Living Plans. Necessary services and supports shall be determined and provided in accordance with this Agreement.

13. Number ofUnits/Timeline for implementation: San Francisco, through the LHHRSP, shall identify and secure housing for approximately 500 class members within the next five years at a rate of approximately 100 per year. San Francisco may petition the Court for modification of these numbers for good cause shown, taking into consideration the continued availability of the Nursing Facility Waiver or other funding sources as described in section VIII.BA of this Agreement. For FY 07-08, that number will be less given the time it will take for further program development and implementation. Estimated time for bringing the first 100 units of housing into the program is as follows:

Activity First 25 Units Identified and Secured Second 25 Units Identified and Secured Third 25 Units Identified and Secured Fourth 25 Units Identified and Secured Approximate Total Time to Bring on the First 100 Units Following Decision to Proceed

Time to Complete September 6, 2008 November 6, 2008 January 6, 2009 March 6, 2009 15 Months

C. Housing Inventory and Waitlist Database
By December I, 2007, San Francisco shall develop and maintain, through a contract with RTZ or other appropriate entity, a database which shall contain the following information:
1. Current information on the housing preferences of class members, including type of housing, accessibility needs, neighborhood considerations, roommates, size of housing, and other housing features;
2. Current information on the housing provided to class members, including preferences of class members, type of housing,

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accessibility needs, neighborhood considerations, roommates, size of housing, and other housing features;
3. An up-to-date inventory of all housing subsidized by DPH. This shall include all units included in the LHHRSP as well as other housing, including but not limited to, supportive housing, master lease housing, patch funding to licensed adult residential care facilities and adult residential care facilities for the elderly located in and out of the County of San Francisco, and, to the extent feasible, housing subsidized by HUD, San Francisco Redevelopment Agency, (SFRA) Community Block Development Grant (CDBG), Tax Credit or other federal or state programs, or any other agency of San Francisco.
4. An up-to-date waiting list of all class members whose needs for community-based housing have been identified but not provided, the type and size of housing unit needed, and length of time on the waitlist;
5. By January I, 2008, San Francisco or its contractor shall provide a demonstration of the Housing Inventory and Waitlist Database and will work cooperatively to make any modifications to the system which will improve the ability to serve class members and monitor this Agreement.
D. Other Housing Options. including Supportive and Assisted Living and Residential Care Facilities
The intent of this section is to provide community living options for class members who do not prefer or are otherwise unable to live in independent housing. In order to ensure that all class members receive appropriate alternatives to LHH when such alternatives are preferred, San Francisco shall:
1. By December 1, 2007, develop and implement a policy that includes class members in all housing option(s) available to homeless residents of San Francisco, provided such class member is unable to return home after hospitalization or is waitlisted or housed at LHH and does not have appropriate community-based housing readily available.

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2. For class members for whom independent housing is not appropriate and preferred, and for whom supportive or assisted living, including a licensed residential care facility, is appropriate and preferred, San Francisco shall identify such options and shall make best efforts to secure the identified housing in a timely manner, as set forth in class members' Community Living Plans. These options can include DPH-funded supportive housing and patch funding for residential care facilities. Data on such class members will be tracked in the Housing Inventory and Waitlist in section VIII.C., above. Class members for whom such a placement is transitional in nature shall be referred to the DCIP, provided with a Community Living Plan and offered alternative, independent housing options as preferred and appropriate, as set forth in sections V-VIII.
3. By December 1, 2007, San Francisco will provide a copy of its proposal for submission for a HCBS Waiver under Medicaid, currently entitled the Leno Waiver. Plaintiffs' counsel will have the opportunity to comment and make recommendations regarding the provision of services and supports to class members under the Leno Waiver and San Francisco will consider these recommendations.
4. San Francisco shall make best efforts to coordinate access to affordable, accessible housing for class members with other agencies and departments in San Francisco. These efforts shall include identifying potential sources of such housing, maintaining contact with housing providers, reviewing vacancy information on a regular basis, and providing such information to appropriate DCIP staff.
IX. MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES
The Parties recognize that the integration and collaboration of physical health care services with mental health and substance abuse services are important components to successful community transition for many class members. It is the intent of this section to enhance mental health/substance abuse services at LHH by promoting mental health/substance abuse services that will prepare and enable residents to be discharged to the community and to provide timely access to community-based mental

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health and substance abuse services to class members who need those services upon discharge.
To that end, San Francisco shall take the following steps:
A. Access to Primary Care Clinics
For class members with chronic mental health or substance abuse needs upon discharge from LHH, San Francisco will provide access to appropriate primary health care to meet those needs, in addition to class members' physical health care needs. Steps to enhance such services shall include: maintaining current information about the capacity and areas of specialization of community clinics; maintaining waitlists for specialty clinics able to serve clients with co-existing needs (such as the 234 Eddy Street Clinic); and making best efforts to increase capacity for class members if gaps are identified.
B. Assessment for and Access to Mental Health Services
By June 30, 2008, San Francisco, through its Department of Community Behavioral Health Services, hereafter "CBHS," and in conjunction with LHH, will:
1. Conduct an assessment of mental health/substance abuse services needed, provided, and available to LHH residents and what community expertise would be helpful to promote better discharges and linkage of class members to CBHS mental health and substance abuse services.
2. Make recommendations regarding mental health and substance abuse services provided at LHH, so that such services will be provided to promote and support discharge and so that LHH residents who can benefit from either on-site or community-based mental health Isubstance abuse services are provided with those services in a timely manner.
3. Develop a plan and timelines for implementing the aforementioned recommendations. One component of this plan shall include coordination among CBHS, LHH and TCM staff, and LHH residents; to inform and assist in the discharge planning process for residents with mental health and substance abuse needs, including

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consultation on medication management and case management services.
4. CBHS will report on the recommendations issued and progress in implementation of the recommendations to the LTCCC on a regular basis, by October, 2008 and thereafter upon request.
C. Class Members' Access to Mental Health Services. including Intensive Case Management
1. CBHS Case Management Services: On July 9,2007, CBI-IS issued a policy entitled, "Intensive Case Management, Single Point of Responsibility and Full Service Partnership Programs." This policy provides that admissions to "the various intensive case management programs such as the Intensive Case Management (ICM) network; the Assertive Community TreatmentiSingle-Pointof-Responsibility (ACT/SPR), the MOST/AB 2034 Program, and the Full Service Partnership (FSP) programs will depend on meeting medical necessity criteria for serious mental illness (SMI), as defined in Cal. Code Regs. Tit 9, § 1830-205 with or without serious and persistent substance abuse concerns, and functional impairment that matches the appropriate level of care." All class members who meet these criteria and need these services shall be provided with such services, as identified in their Community Living Plans.
2. Other Mental Health Services: It is San Francisco's policy to provide all appropriate mental health and substance abuse services to class members whether or not they are eligible for or receive Medi-Cal and whether or not the specific services are covered under Medi-Cal. All class members will be provided with mental health and substance abuse services in accordance with their Community Living Plans.
D. Pre-Admission Screening and Resident Review
By February 1, 2008, San Francisco will meet with Plaintiffs' counsel to determine current practices regarding implementation ofPASRR Level II Evaluation recommendations for LHH residents and to consider steps to better integrate recommendations for mental health services into discharge plans for class members with mental health disabilities.

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X. LAGUNA HONDA HOSPITAL
A. San Francisco's rebuild ofLHH is now underway. San Francisco agrees that upon completion, the total bed capacity of the rebuilt LHH will not exceed 780 skilled nursing beds.
B. Plaintiffs are not in agreement that Defendant San Francisco should rebuild Laguna Honda with as many as 780 skilled nursing facility beds; however, if San Francisco does rebuild, the mission of the rebuilt LHH facility shall include as a goal that the facility is for short-term, rehabilitative treatment. To that end:
1. The operational focus of the rebuilt LHH will emphasize providing medical and other services and supports with a focus on enhancing community living skills to enable class members to successfully age in place in the community with appropriate services and supports. LHH will work to care for and rehabilitate class members in order to return them to the community as soon as possible and as appropriate.
2. San Francisco shall provide a full range of transition services to class members residing at LHH to facilitate transition to the community, including but not limited to: habilitation, choice counseling, and mental health services.
3. Staff working on the Transition Units, and others as appropriate, will be trained to encourage residents' maximum independence and how procedures and medications can be administered in community settings.
XI. GRIEVANCE PROCEDURES FOR CLASS MEMBERS
The intent of this section is to provide a means for class members to appeal or complain about services provided pursuant to this Agreement. To that end:
A. By January I, 2008, San Francisco will develop and provide to Plaintiffs' counsel a written notice of the City's grievance procedures available to class members who disagree with City action taken pursuant to this Settlement Agreement. Independent providers may have their own grievance procedures.

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B. The City's notice will:
1. Include a description of the process for infonning class members about their rights to grieve, including their right to contact PAI for assistance in the process and PAI's contact infonnation;
2. Include infonnation on how to access the City's grievance procedures for all services provided pursuant to this Agreement;
3. Be given and explained to each class member at the time a Community Living Plan is developed.
C. Plaintiffs will respond to the proposed notice with comments within (30) thirty days and San Francisco shall consider any comments and/or recommendations made by Plaintiffs' counsel.
D. For grievances regarding the LHHRSP pursuant to section VIII.B. of this Agreement, class members shall use, and the notice described above shall include, infonnation on, San Francisco's Direct Access to Housing Program grievance procedure.
XII. DATA COLLECTION AND REPORTING
Within (30) thirty days of the signing of this Agreement, the Parties shall meet and confer to agree upon a process for data collection and reporting regarding the Settlement Agreement. Components of the data collection and reporting shall include:
A. Written quarterly progress reports to Plaintiffs' counsel as to activities undertaken to implement the tenns of each section of the Settlement Agreement;
B. Provision of aggregate data on class members contained in Attachment A to this Agreement;
C. Access by Plaintiffs' counsel to class member infonnation, including infonnation held by RTZ Associates or its successor, including:
1. Client-confidential infonnation pertaining to implementation of this Agreement, subject to a protective order issued by the Court, including: client names; client contact infonnation; client files, including DCIP assessments and assessments relied on by the

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DCIP; Community Living Plans; Targeted Case Management files; LHH Resident Housing Living Preference Survey results; CBHS records; Community Living Fund records; progress notes; grievances; and other records kept in conjunction with discharge planning and provision of community-based services and housing;
2. Contact information, and access to, class members' service providers, including case management staff and City personnel involved in provision of services to class members, including assessment, development and implementation of Community Living Plans, provision of housing and CBHS services, and quality assurance.
D. Accompanying the quarterly progress reports, copies of policies, procedures, Requests for Proposals, contracts with community providers, training materials, etc. as they pertain to implementation of the Settlement Agreement terms contained in sections V-XI and XIII of this Agreement.
E. Meetings with Plaintiffs' counsel and San Francisco personnel responsible for implementation of the settlement provisions, every other month for the first year of the Agreement, and quarterly thereafter for the duration of the Agreement, unless an alternative schedule is agreed upon by the Parties as settlement implementation progresses;
F. San Francisco shall also provide the written reports set forth in sections XILA and XII.B to the Long-Term Care Coordinating Council, for the duration of the settlement. San Francisco shall solicit and consider feedback and recommendations from the LTCCC and the Mayor's Disability Council regarding implementation of the settlement terms.
XIII. QUALITY ASSURANCE
It is the responsibility of San Francisco to provide quality assurance monitoring and oversight to all class members. In carrying out this obligation, the following general standards shall apply:
A. San Francisco shall designate sufficient and appropriate City staff to conduct quality assurance activities;

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B. Quality assurance activities performed by San Francisco shall include: periodic review of client files; personal visits with clients; access to and review of complaints made through the grievance process; tracking data on clients who are placed in transitional and/or out-of-county placements and those who remain at LHH; as well as resolving problems identified by the quality assurance staff in a timely manner.
C. Quality assurance activities shall be focused on measuring whether services are provided in accordance with class members' Community Living Plans and this Agreement.
XlV. MONITORING IMPLEMENTATION OF AGREEMENT
Plaintiffs' counsel will monitor San Francisco's compliance with the provisions of the Settlement Agreement for the duration of the Agreement, as set forth in section XIX. The Parties jointly recommend that in compensation for such activities, Plaintiffs' counsel will submit invoices for actual fees and expenses incurred on a quarterly basis, and San Francisco shall remit payment within 30 days, for up to three years, for a total amount not to exceed $200,000. Allowable fees and expenses shall include attorney and advocate fees, contracts with experts, and costs related to monitoring activities such as travel costs, to be billed at current rates for expenses incurred. In the event the Court awards compensation to Plaintiffs for monitoring in a different amount, either Party may withdraw from this Settlement Agreement.
In order to effectively monitor San Francisco's compliance with the settlement, Plaintiffs' counsel shall have access to client information as set forth in section XII.C. Upon development of each class member's Community Living Plan, San Francisco shall request that the class member sign an authorization to release medical records to Plaintiffs' counsel, and shall forward all signed forms to Plaintiffs' counsel.
xv. FORM OF THE JUDGMENT
The Parties will join in asking the Court to enter a judgment approving this Settlement Agreement and to retain jurisdiction over this matter for the purpose of assuring compliance with the terms of the Settlement Agreement.
XVI. DISPUTES CONCERNING IMPLEMENTATION AND COMPLIANCE
Any claim, dispute or other matter in controversy ("dispute") arising out of or related to the Agreement, or the breach, implementation or performance thereof, shall be settled or otherwise resolved according to the procedures set forth below.

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A. Either party claiming a material breach of this Agreement will give notice of claim in writing to opposing counsel and will propose a resolution to the other party.
B. The responding party will have (14) fourteen day following receipt of the written claim to respond in writing and to meet and confer, unless the period is enlarged by agreement of the Parties.
C. If after the (14) fourteen day meet and confer period (or any agreed-upon longer period) the party asserting the claim is dissatisfied with the other party's response, or no response is received, the party asserting the claim may invoke mediation before Hon. Edward Infante (Ret.). If Magistrate Judge Infante is not available to serve as a mediator, any disputes pursuant to this Agreement may be submitted to the Hon. Eugene F. Lynch (Ret.) or the Hon. David Garcia (Ret.), in that order. In the event that neither of these alternative mediators is available, the parties shall mutually agree upon a mediator. If the parties are unable to agree upon a mediator, a mediator shall be selected by the District Court. Mediation shaH commence within (30) thirty days. Upon certification by the mediator that the Parties caru10t resolve the dispute through mediation, or if mediation does not commence within (30) thirty days, either party may arbitrate the issue in dispute
D. The Parties agree that Hon. James Warren (Ret.) will serve as arbitrator to resolve any issues certified through mediation. If Judge Warren is not available to serve as arbitrator, any issues certified for arbitration may be submitted to Barry Winograd or Norman Brand, in that order. In the event that neither of these alternative arbitrators is available, the parties shall mutually agree upon an arbitrator. If (7) seven days after ascertaining the unavailability of all of the arbitrators identified above, the parties are unable to agree upon an arbitrator, an arbitrator shall be selected pursuant to the JAMS Streamlined Rules, effective March 26, 2007 ("Streamlined Rules"). The Parties intend arbitration to be as efficient and inexpensive as practicable. The Parties agree that the arbitrator will have all powers and remedies at law and equity that the federal couti would have, except contempt or modification of the judgment. The arbitrator's decision shall be final and binding. Arbitration shall be conducted in accordance with the Streamlined Rules. To the extent any of the Streamlined Rules are inconsistent with this Agreement, this Agreement shall prevail.

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E. If Plaintiffs claim noncompliance with an arbitration decision, Plaintiffs shall give notice of their claim in writing to the City. The City shall have (10) ten days following receipt ofthe claim to respond in writing and to meet and confer in person. If after the (10) ten day meet and confer period, Plaintiffs are dissatisfied with the City's response, or no response is received, Plaintiffs may file in this Court a motion to enforce the arbitrator's decision.
F. If Plaintiffs prevail on a claim before the arbitrator or the Court, San Francisco will pay Plaintiffs' reasonable attorneys' fees and costs in bringing the claim. If Defendant prevails, each side will bear its own fees and costs, except as set forth below. All mediation and arbitration fees and costs that are required by JAMS to be deposited in advance or paid during the mediation or arbitration process shall be timely paid by San Francisco.
G. If Defendant prevails in a dispute before the arbitrator or this Court and the decision-maker finds that Plaintiffs' position is without any merit, then Defendant may reduce payments owed to Plaintiffs' counsel for monitoring purposes in an amount not to exceed $10,000. If a dispute arises, or upon San Francisco's last payment owed for monitoring fees, San Francisco may withhold up to $10,000 from monies due to Plaintiffs' counsel in order to ensure that such funds will be available in the event described above.
H. Notwithstanding the foregoing, if, in the judgment of the party claiming material breach, irreparable harm would occur during the pendency of the meet and confer process, the Parties may agree to shorten the meet and confer timelines or the party claiming material breach may seek preliminary relief from the arbitrator. Preliminary relief will be available from the arbitrator only upon a finding of irreparable harm.
I. If the arbitration fails to commence or is suspended or terminated on account of failure to pay said fees and costs, Plaintiffs may enforce their rights under this Agreement in U.S. District Court.
J. In the event that either party petitions the Court to modify the judgment, the Parties shall first engage in the meet and confer process and mediation described above.

Chambers, et al. v. CCSF, Settlement Agreement

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XVII. NOTICE TO THE CLASS; FAIRNESS HEARING
The Parties will provide notice to the class. Ifthe Court determines that court approval ofthis Agreement is subject to a fairness hearing pursuant to Fed.R.Civ. P. 23(e), the Parties will jointly prepare a notice of this settlement which describes the process for filing written objections and includes the date for the fairness hearing. The notice shall be sent by Defendant to all class members. The Parties will cooperate in presenting this Agreement to the Court at the fairness hearing.
XVIII. ATTORNEYS' FEES AND COSTS
The Parties jointly recommend a fee award to class counsel in the amount of $300,000 for fees and costs. The recommended payment, if approved by the Court, shall be made to Protection & Advocacy, Inc. in (3) three equal installments of $100,000 each. The first payment shall be made (30) thirty days after this Settlement Agreement becomes final and binding. The remaining payments shall be made on October 1, 2008 and October 1, 2009. In the event the Court awards fees to Plaintiffs' counsel in a different amount, either Party may withdraw from the Settlement Agreement.
XIX. TERMINATION OF AGREEMENT
A. This Settlement Agreement and Defendant's obligations hereunder, except those obligations set forth in section XIX.B below, will terminate (3) three years from the date of final approval of the settlement by the Court, unless the Court, in its discretion, extends the term of this Settlement Agreement upon finding a material breach.
B. Section VIILB of this Settlement Agreement and Defendant's obligations hereunder, including reporting obligations as set forth in section XII and dispute resolution contained in section XVI, will terminate five years from the date of final approval of the settlement by the Court, unless the Court, in its discretion, extends the term of this Settlement Agreement upon finding a material breach.
xx. ADDITIONAL PROVISIONS
No individual claims for damages by class members are waived pursuant to this Settlement Agreement.
This Agreement may be amended, modified, or supplemented only by a duly executed writing which has been presented to and approved by this Court.

Chambers, et al. v. CCSF, Settlement Agreement

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This Settlement Agreement, once approved by the Court, shall be effective as to and binding upon the Parties and their successors and assigns.
The foregoing paragraphs represent the entire integrated Agreement of the Parties.
This Agreement may be executed in counterparts. The counterparts shall have the same force and effect as if a single document had been signed.
This Agreement is contingent upon approval by the San Francisco Board of Supervisors and the City's Health Commission, and this Agreement will not become effective absent such approval. Defendant will make every effort to secure such approval in a timely manner.

Chambers, et ai. v. CCSF, Settlement Agreement

Page 31 of33

For Defendant San Francisco: Dated:

DENNIS J. HERRERA JOANNE HOEPER JAMES M. EMERY A EETA VAN RUNKLE

Dated:

Attorneys for Defendants CITY AND COUNTY OF SAN FRANCISCO
By: ~11d Mitchell Katz, M.D.
Director, San Francisco Department of Public
Health

Dated: Approved as to form:

By: Anne Hinton Director, San Francisco Department of Aging and Adult Services
PROTECTION AND ADVOCACY, INC. AARP FOUNDATION LITIGATION HOWREYLLP DISABILITY RIGHTS EDUCATION AND DEFENSE FUND BAZELON CENTER FOR MENTAL HEALTH LAW

Dated:

By: Elissa Gershon Protection & Advocacy, Inc. 1330 Broadway, Suite 500 Oakland, CA 94612

Attorney for Plaintiffs MARK CHAMBERS, ET AL

Chambers, el al. v. CCSF, Settlement Agreement

Page 32 01'33

For Defendant San Francisco:

DENNIS J. HERRERA JOANNE HOEPER JAMES M. EMERY ALEETA VAN RUNKLE

Dated:

- - - - - - By:

James M. Emery City Attorney's Office 1390 Market Street, 6th Floor San Francisco, CA 94102

Attorneys for Defendants CITY AND COUNTY OF SAN FRANCISCO

Dated: Dated: Approved as to form:

By: - - - ' - - Mitchell Katz, M.D. Director, San Francisco Department of Public
Health} ~
By: .c::;;L Anne Hinton Director, San Francisco Department of Aging and Adult Services
PROTECTION AND ADVOCACY, INC. AARP FOUNDATION LITIGATION HOWREYLLP DISABILITY RIGHTS EDUCATION AND DEFENSE FUND BAZELON CENTER FOR MENTAL HEALTH LAW

Dated:

By: Elissa Gershon Protection & Advocacy, Inc. 1330 Broadway, Suite 500 Oakland, CA 94612

Attorney for Plaintiffs MARK CHAMBERS, ET AL.

Chambers, el al. v. CCSF, Settlement Agreement

Page 32 of33

For Defendant San Francisco:

DENNIS J. HERRERA JOANNE HOEPER JAMES M. EMERY ALEETA VAN RUNKLE

Dated:

_ _ _ _ _ _ By:

James M. EmelY City Attorney's Office 1390 Market Street, 6th Floor San Francisco, CA 94102

Attorneys for Defendants CITY AND COUNTY OF SAN FRANCISCO

Dated:

By: Mitchell Katz, M.D. Director, San Francisco Department of Public Health

Dated: Approved as to fonn:
Dated:

By: Anne Hinton Director, San Francisco Department of Aging and Adult Services
PROTECTION AND ADVOCACY, INC. AARP FOUNDATION LITIGATION HOWREYLLP DISABILITY RIGHTS EDUCATION AND DEFENSE FUND BAZELON CENTER FOR MENTAL
f;v~(;M--- HE~71HLAW
By: Elissa Gershon Protection & Advocacy, Inc. 1330 Broadway, Suite 500 Oakland, CA 94612

Attorney for Plaintiffs MARK CHAMBERS, ET AL.

Chambers, et al. v. CCSF, Settlement Agreement

Page 32 of33

For Plaintiffs/Class Representatives:

DATED: _fL-d--+!_'6-/-lo_r-'---_ ~i: Lhqn;6E?cs

MARK CHAMBERS

l' J-/S ) DATED: \

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WOODROW FALLS, JR.

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DATED:

DATED:

Independent Living Resource Center Of San Francisco Representative

F:\DOCSIChambersISettlementIFINALISettlement Agreement FINAL 12-03·07.doc

Chambers, et al. v. CCSF. Settlement Agreement

Page 33 of33

For Plaintiffs/Class Representatives:

DATED:

MARK CHAMBERS

DATED:

WOODROW FALLS, JR.

DATED:

M.H.

DATED:

PHILLIPK.

DATED:

GERALD SCOTT

DATED: DATED: ~p~I~II~\v~'~7__________

MARYT.
Independent Living Resource Center Of San Francisco Representative

F:IDOCS\Chambers\SettlementIFINALISettlement Agreement FINAL 12-03-07,doc

Chambers, et al. v. CCSF, Settlement Agreement

Page 33 of 33

 </s> 1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

United States District Court For the Northern District of California

10 MARK CHAMBERS, WOODROW FALLS,

11

JR., M.H., PHILLIP K., GERALD SCOTT, MARY T., and THE INDEPENDENT

12

LIVING RESOURCE CENTER OF SAN FRANCISCO,

13

Plaintiffs,

14

v.

15 CITY AND COUNTY OF SAN FRANCISCO,

16

Defendant.

17

/

No. C 06-06346 WHA
MEMORANDUM OPINION CONCERNING THE END OF JURISDICTION IN THIS MATTER

18

The order granting final approval of the settlement agreement in this action states: “The

19 Court will retain jurisdiction over this matter for the purpose of assuring compliance with the

20 terms of the Settlement Agreement, as set forth in Paragraph XV of the Agreement” (Dkt. No.

21 93). Paragraph XV of the Settlement Agreement states: “The Parties will join in asking the

22 Court to enter a judgment approving this Settlement Agreement and to retain jurisdiction over

23 this matter for the purpose of assuring compliance with the terms of the Settlement Agreement”

24 (Dkt. No. 83-3). In addition, Paragraph XIX (“Termination of Agreement”) states:

25

A. This Settlement Agreement and Defendant’s obligations

26

hereunder, except those obligations set forth in section XIX.B below, will terminate (3) three years from the date of final

27

approval of the settlement by the Court, unless the Court, in its discretion, extends the term of this Settlement Agreement upon

28

finding a material breach.

B. Section VIII.B of this Settlement Agreement and Defendant’s obligations hereunder, including reporting obligations as set forth

United States District Court For the Northern District of California

1

in section XII and dispute resolution contained in section XVI, will

terminate five years from the date of final approval of the

2

settlement by the Court, unless the Court, in its discretion, extends

the term of this Settlement Agreement upon finding a material

3

breach.

4 Section VIII.B of the Agreement concerns the Laguna Honda Hospital Rent Subsidy Program.

5 The order granting final approval of the settlement agreement was entered on September 18,

6 2008. Accordingly, jurisdiction in this matter will terminate on September 18, 2011, as to all

7 rights and obligations of the parties except with regard to the Laguna Honda Hospital Rent

8 Subsidy Program, except upon further order of the Court. And jurisdiction in this matter will

9 terminate on September 18, 2013, as to all other rights and obligations of the parties, except

10 upon further order of the Court. Counsel are admonished that any motion to extend jurisdiction

11 must be filed before jurisdiction expires.

12

13 Dated: February 7, 2011. 14

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

 </s> 1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

United States District Court For the Northern District of California

9

10

MARK CHAMBERS, WOODROW FALLS, JR., M.H., PHILLIP K., GERALD

11

SCOTT, MARY T. and THE INDEPENDENT LIVING RESOURCE

12 CENTER OF SAN FRANCISCO, et al.,

13

Plaintiffs,

14

v.

No. C 06-06346 WHA
ORDER RE MODIFICATION AND EXPIRATION OF SETTLEMENT AGREEMENT

15

CITY AND COUNTY OF SAN FRANCISCO,

16

Defendant.

17 /

18

19

On August 28, defendant’s counsel submitted a letter (Dkt. No. 125) regarding the

20 September 18 expiration date for defendant’s remaining obligations of the settlement agreement.

21 Specifically, section VIII.B of the settlement agreement requires, among other conditions,

22 defendant’s implementation of the Laguna Honda Hospital Rent Subsidy Program for

23 approximately 500 residents during the 5 year duration of the settlement agreement. To date,

24 defendant has implemented and administered the rental subsidy program for approximately 270

25 individuals, due to actual demand for such housing being substantially less than the parties

26 anticipated when negotiating the settlement agreement.

27

Defendant requests recognition of its fulfillment of obligations under Section VIII.B of

28 the settlement agreement, or alternatively, a modification of Section VIII.B’s target numbers

based on good cause in the form of less-than-anticipated demand for the rental subsidy program.

United States District Court For the Northern District of California

1 Lead plaintiff’s counsel has met and conferred with defendant’s counsel on this issue, and does

2 not oppose defendant’s requests. The order thus approves of the modification of Section

3 VIII.B’s target numbers based on good cause shown, and both the settlement agreement and this

4 Court’s jurisdiction will expire on SEPTEMBER 18.

5

6

IT IS SO ORDERED.

7

8 Dated: September 3, 2013. 9

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

 </s> Case: 3:06-cv-6346 As of: 10/18/2017 07:44 PM PDT 1 of 18
CLOSED,E−Filing,REFSET−BZ
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:06−cv−06346−WHA

Chambers et al v. City and County of San Francisco Assigned to: Hon. William Alsup Cause: 42:12101 Americans w/ Disabilities Act (ADA)
Plaintiff

Date Filed: 10/11/2006 Date Terminated: 12/01/2008 Jury Demand: Defendant Nature of Suit: 446 American with Disabilities − Other Jurisdiction: Federal Question

Mark Chambers

represented by Arlene Brynne Mayerson Disability Rights Education & Defense Fund, Inc. 3075 Adeline Street, Suite 210 Berkeley, CA 94703 (510) 644−2555 Fax: (510) 841−8645 Email: AMayerson@dredf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elissa Staci Gershon Disability Rights California Oakland 1330 Broadway Suite 500 Oakland, CA 94612 510−267−1200 Fax: 510−267−1201 Email: elissa.gershon@disabilityrightsca.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Anna Zirker Disability Rights California Oakland 1330 Broadway Suite 500 Oakland, CA 94612 510−267−1263 Fax: 510−267−1201 Email: elizabeth.zirker@disabilityrightsca.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kimberly Carol Swain Disability Rights California Oakland 100 Howe Avenue Suite 235N Sacramento, CA 95825 916−488−9950 Fax: 916−488−9960 Email: kim.swain@disabilityrightsca.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Larisa M. Cummings Disability Rights Education & Defense Fund, Inc. 3075 Adeline Street, Suite 210 Berkeley, CA 94703

Case: 3:06-cv-6346 As of: 10/18/2017 07:44 PM PDT 2 of 18
(510) 644−2555 Fax: (510) 841−8645 Email: LCummings@dredf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Silvia Yee Disability Rights Education and Defense Fund, Inc. 3075 Adeline Street Suite 210 Berkeley, CA 94703 510−644−2555 x234 Fax: 510−841−8645 Email: syee@dredf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce Vignery AARP Foundation Litigation 601 E. Street, N.W., Building A4−170 Washington, DC 20049 202−434−2060 Fax: 202−434−6424 Email: bvignery@aarp.org ATTORNEY TO BE NOTICED
Dorothy Siemon AARP Foundation Litigation 601 E. Street, N.W., Building A4−170 Washington, DC 20049 (202) 434−2060 ATTORNEY TO BE NOTICED
Gregg Aaron Myers Piatnicia Law 5339 Prospect Rd. No. 194 San Jose, CA 95129 (916) 741−3043 Fax: (415) 493−0001 Email: aaron@piatnicialegal.com TERMINATED: 03/07/2011
Henry C. Su Constantine Cannon LLP 1001 Pennsylvania Ave., N.W. Suite 1300N Washington, DC 20004−2579 202−204−3504 Fax: 202−204−3501 Email: hsu@constantinecannon.com TERMINATED: 03/07/2011
Ira A Burnim Bazelon Center for Mental Health Law 1101 15th Street, N.W., Suite 1212 Washington, DC 20005−2002 (202) 467−5730 x129 Fax: (202) 223−0409 Email: irab@bazelon.org ATTORNEY TO BE NOTICED
Jennifer Ellen Mathis Bazelon Center for Mental Health Law

Case: 3:06-cv-6346 As of: 10/18/2017 07:44 PM PDT 3 of 18

1101 15th Street, NW Suite 1212 Washington, DC 20005 202−467−5730 x122 Fax: 202−223−0409 Email: jenniferm@bazelon.org ATTORNEY TO BE NOTICED

Joseph Song Morgan, Lewis & Bockius LLP One Market Spear Street Tower San Francisco, CA 94105 415−442−1000 Fax: 415−442−1001 Email: jsong@bdiplaw.com TERMINATED: 03/07/2011

Robert F. Kramer Dentons US LLP 1530 Page Mill Road Suite 200 Palo Alto, CA 94304−1125 650−798−0356 Fax: 650−798−0310 Email: robert.kramer@dentons.com TERMINATED: 03/07/2011

Plaintiff Woodrow Falls, Jr.

represented by Arlene Brynne Mayerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elissa Staci Gershon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Anna Zirker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kimberly Carol Swain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Larisa M. Cummings (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Silvia Yee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce Vignery (See above for address) ATTORNEY TO BE NOTICED

Dorothy Siemon

Case: 3:06-cv-6346 As of: 10/18/2017 07:44 PM PDT 4 of 18

(See above for address) ATTORNEY TO BE NOTICED

Gregg Aaron Myers (See above for address) TERMINATED: 03/07/2011

Henry C. Su (See above for address) TERMINATED: 03/07/2011

Ira A Burnim (See above for address) ATTORNEY TO BE NOTICED

Jennifer Ellen Mathis (See above for address) ATTORNEY TO BE NOTICED

Joseph Song (See above for address) TERMINATED: 03/07/2011

Plaintiff M.H.

represented by Arlene Brynne Mayerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elissa Staci Gershon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Anna Zirker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregg Aaron Myers (See above for address) TERMINATED: 03/07/2011 LEAD ATTORNEY

Kimberly Carol Swain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Larisa M. Cummings (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Silvia Yee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce Vignery (See above for address) ATTORNEY TO BE NOTICED

Dorothy Siemon

Case: 3:06-cv-6346 As of: 10/18/2017 07:44 PM PDT 5 of 18

(See above for address) ATTORNEY TO BE NOTICED

Henry C. Su (See above for address) TERMINATED: 03/07/2011

Ira A Burnim (See above for address) ATTORNEY TO BE NOTICED

Jennifer Ellen Mathis (See above for address) ATTORNEY TO BE NOTICED

Joseph Song (See above for address) TERMINATED: 03/07/2011

Plaintiff Phillip K.

represented by Arlene Brynne Mayerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elissa Staci Gershon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Anna Zirker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kimberly Carol Swain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Larisa M. Cummings (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Silvia Yee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce Vignery (See above for address) ATTORNEY TO BE NOTICED

Dorothy Siemon (See above for address) ATTORNEY TO BE NOTICED

Gregg Aaron Myers (See above for address) TERMINATED: 03/07/2011

Henry C. Su (See above for address)

Case: 3:06-cv-6346 As of: 10/18/2017 07:44 PM PDT 6 of 18

TERMINATED: 03/07/2011

Ira A Burnim (See above for address) ATTORNEY TO BE NOTICED

Jennifer Ellen Mathis (See above for address) ATTORNEY TO BE NOTICED

Joseph Song (See above for address) TERMINATED: 03/07/2011

Plaintiff Gerald Scott

represented by Arlene Brynne Mayerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elissa Staci Gershon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Anna Zirker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kimberly Carol Swain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Larisa M. Cummings (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Silvia Yee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce Vignery (See above for address) ATTORNEY TO BE NOTICED

Dorothy Siemon (See above for address) ATTORNEY TO BE NOTICED

Gregg Aaron Myers (See above for address) TERMINATED: 03/07/2011

Henry C. Su (See above for address) TERMINATED: 03/07/2011

Ira A Burnim (See above for address) ATTORNEY TO BE NOTICED

Case: 3:06-cv-6346 As of: 10/18/2017 07:44 PM PDT 7 of 18

Plaintiff Mary T.

Jennifer Ellen Mathis (See above for address) ATTORNEY TO BE NOTICED
Joseph Song (See above for address) TERMINATED: 03/07/2011
represented by Arlene Brynne Mayerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elissa Staci Gershon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Anna Zirker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kimberly Carol Swain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Larisa M. Cummings (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Silvia Yee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce Vignery (See above for address) ATTORNEY TO BE NOTICED
Dorothy Siemon (See above for address) ATTORNEY TO BE NOTICED
Gregg Aaron Myers (See above for address) TERMINATED: 03/07/2011
Henry C. Su (See above for address) TERMINATED: 03/07/2011
Ira A Burnim (See above for address) ATTORNEY TO BE NOTICED
Jennifer Ellen Mathis (See above for address) ATTORNEY TO BE NOTICED

Case: 3:06-cv-6346 As of: 10/18/2017 07:44 PM PDT 8 of 18

Joseph Song (See above for address) TERMINATED: 03/07/2011

Plaintiff
The Independent Living Resource Center of San Francisco

represented by Arlene Brynne Mayerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elissa Staci Gershon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Anna Zirker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kimberly Carol Swain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Larisa M. Cummings (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Silvia Yee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce Vignery (See above for address) ATTORNEY TO BE NOTICED

Dorothy Siemon (See above for address) ATTORNEY TO BE NOTICED

Gregg Aaron Myers (See above for address) TERMINATED: 03/07/2011

Henry C. Su (See above for address) TERMINATED: 03/07/2011

Ira A Burnim (See above for address) ATTORNEY TO BE NOTICED

Jennifer Ellen Mathis (See above for address) ATTORNEY TO BE NOTICED

Joseph Song (See above for address) TERMINATED: 03/07/2011

Case: 3:06-cv-6346 As of: 10/18/2017 07:44 PM PDT 9 of 18

V. Defendant City and County of San Francisco

represented by James Moxon Emery City Attorney's Office City of San Francisco 1 Dr. Carlton B. Goodlett Place City Hall, Suite 234 San Francisco, CA 94102−5408 415−554−4628 Fax: 415−554−4747 Email: jim.emery@sfgov.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen Suzanne Morris Office of the City Attorney 1390 Market St. Seventh Floor San Francisco, CA 94102 415−554−3987 Fax: 415−554−3985 Email: kathleen.morris@sfgov.org ATTORNEY TO BE NOTICED

Date Filed 10/11/2006
10/11/2006 10/11/2006 10/11/2006
10/11/2006
10/11/2006 10/11/2006

# Docket Text
1 CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF against City and County of San Francisco ( Filing fee $ 350, receipt number 4413335.). Filed byWoodrow Falls, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco. (sis, COURT STAFF) (Filed on 10/11/2006) Additional attachment(s) added on 10/20/2006 (sis, COURT STAFF). (Entered: 10/12/2006)
Summons Issued as to City and County of San Francisco. (sis, COURT STAFF) (Filed on 10/11/2006) (Entered: 10/12/2006)
2 MOTION for Leave to Proceed in forma pauperis ; Declaration of Elissa Gershon; Plaintff's Applications; Proposed Order filed by Woodrow Falls, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco. (sis, COURT STAFF) (Filed on 10/11/2006) (Entered: 10/12/2006)
Received Document − ORIGINAL SIGNED APPLICATIONS TO PROCEED IN FORMA PAUPERIS OF PLAINTIFFS PROCEEDING UNDER FICTITIOUS NAMES re 2 MOTION for Leave to Proceed in forma pauperis by Woodrow Falls, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco. FILED UNDER SEAL. (sis, COURT STAFF) (Filed on 10/11/2006) (Entered: 10/12/2006)
3 Ex Parte Application To Proceed Under Fictitious Name; Declaration of Elissa Gershon; Memorandum of Points and Authorities in Support Thereof filed by Woodrow Falls, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco. (sis, COURT STAFF) (Filed on 10/11/2006) Additional attachment(s) added on 10/23/2006 (sis, COURT STAFF). (Entered: 10/12/2006)
Received Order re 3 Ex Parte Application by Woodrow Falls, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco. FILED UNDER SEAL. (sis, COURT STAFF) (Filed on 10/11/2006) (Entered: 10/12/2006)
4 MOTION for leave to appear in Pro Hac Vice, Dorothy Siemon, Esq. filed by Woodrow Falls, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco. (sis, COURT STAFF) (Filed

Case: 3:06-cv-6346 As of: 10/18/2017 07:44 PM PDT 10 of 18

10/11/2006 10/11/2006 10/11/2006 10/11/2006 10/11/2006 10/11/2006 10/11/2006 10/11/2006 10/11/2006 10/11/2006 10/11/2006 10/11/2006

on 10/11/2006) Additional attachment(s) added on 10/23/2006 (sis, COURT STAFF). (Entered: 10/12/2006)
18 Received Order re 4 MOTION for leave to appear in Pro Hac Vice by Woodrow Falls, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco. (sis, COURT STAFF) (Filed on 10/11/2006) Additional attachment(s) added on 10/23/2006 (sis, COURT STAFF). (Entered: 10/12/2006)
5 MOTION for leave to appear in Pro Hac Vice, Bruce Vignery, Esq., (Receipt No. 4413336) filed by Woodrow Falls, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco. (sis, COURT STAFF) (Filed on 10/11/2006) Additional attachment(s) added on 10/23/2006 (sis, COURT STAFF). (Entered: 10/12/2006)
19 Received Order re 5 MOTION for leave to appear in Pro Hac Vice by Woodrow Falls, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco. (sis, COURT STAFF) (Filed on 10/11/2006) Additional attachment(s) added on 10/23/2006 (sis, COURT STAFF). (Entered: 10/12/2006)
6 MOTION for leave to appear in Pro Hac Vice, Ira A. Burnim, Esq. (Receipt No. 4413338) filed by Woodrow Falls, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco. (sis, COURT STAFF) (Filed on 10/11/2006) Additional attachment(s) added on 10/23/2006 (sis, COURT STAFF). (Entered: 10/12/2006)
20 Received Order re 6 MOTION for leave to appear in Pro Hac Vice by Woodrow Falls, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco. (sis, COURT STAFF) (Filed on 10/11/2006) Additional attachment(s) added on 10/23/2006 (sis, COURT STAFF). (Entered: 10/12/2006)
7 MOTION for leave to appear in Pro Hac Vice, Jennifer Mathis, Esq. (Receipt No. 4413338) filed by Woodrow Falls, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco. (sis, COURT STAFF) (Filed on 10/11/2006) Additional attachment(s) added on 10/23/2006 (sis, COURT STAFF). (Entered: 10/12/2006)
21 Received Order re 7 MOTION for leave to appear in Pro Hac Vice by Woodrow Falls, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco. (sis, COURT STAFF) (Filed on 10/11/2006) Additional attachment(s) added on 10/23/2006 (sis, COURT STAFF). (Entered: 10/12/2006)
8 Scheduling Order for Cases Asserting Denial of Right of Access under Americans with Disabilities Act. (sis, COURT STAFF) (Filed on 10/11/2006) (Entered: 10/12/2006)
9 SUPPLEMENTAL ORDER TO ORDER SETTING INITIAL CASE MANAGEMENT CONFERENCE re 8 SCHEDULING ORDER−ADA (sis, COURT STAFF) (Filed on 10/11/2006) (Entered: 10/12/2006)
CASE DESIGNATED for Electronic Filing. (sis, COURT STAFF) (Filed on 10/11/2006) (Entered: 10/20/2006)
24 ORIGINAL SIGNED APPLICATIONS TO PROCEED IFP OF PLAINTIFFS PROCEEDING UNDER FICTITIOUS NAMES filed byWoodrow Falls, Jr, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco. FILED UNDER SEAL (sis, COURT STAFF) (Filed on 10/11/2006) (Entered: 10/25/2006)
Received Order 3 Motion to Proceed Under Fictitious Names by Woodrow Falls, Jr, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco. FILED UNDER SEAL. (sis, COURT STAFF) (Filed on 10/11/2006) (Entered: 10/25/2006)

Case: 3:06-cv-6346 As of: 10/18/2017 07:44 PM PDT 11 of 18

10/12/2006
10/17/2006
10/17/2006 10/17/2006 10/18/2006 10/19/2006 10/20/2006 10/20/2006 10/20/2006 10/20/2006 10/24/2006
10/25/2006 12/01/2006 12/01/2006 12/01/2006 12/06/2006 12/06/2006 12/06/2006 12/14/2006

10 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF − CLASS ACTION against City and County of San Francisco. Filed byWoodrow Falls, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco. (sis, COURT STAFF) (Filed on 10/12/2006) Additional attachment(s) added on 10/20/2006 (sis, COURT STAFF). (Entered: 10/12/2006)
11 Summons Returned Unexecuted by Woodrow Falls, Jr, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco as to City and County of San Francisco. (sis, COURT STAFF) (Filed on 10/17/2006) (Entered: 10/17/2006)
Summons Issued as to City and County of San Francisco. (sis, COURT STAFF) (Filed on 10/17/2006) (Entered: 10/17/2006)
Summons Issued as to City and County of San Francisco. Amended (sis, COURT STAFF) (Filed on 10/17/2006) (Entered: 10/17/2006)
12 NOTICE of Appearance by Robert F. Kramer (Kramer, Robert) (Filed on 10/18/2006) (Entered: 10/18/2006)
13 ORDER GRANTING APPLICATION by Judge William Alsup granting 2 Motion for Leave to Proceed in forma pauperis (dt, COURT STAFF) (Filed on 10/19/2006) (Entered: 10/20/2006)
14 ORDER by Judge William Alsup granting 5 Motion for Pro Hac Vice of Bruce Vignery (dt, COURT STAFF) (Filed on 10/20/2006) (Entered: 10/20/2006)
15 ORDER by Judge William Alsup granting 6 Motion for Pro Hac Vice of Ira A. Burnim (dt, COURT STAFF) (Filed on 10/20/2006) (Entered: 10/20/2006)
16 ORDER by Judge William Alsup granting 7 Motion for Pro Hac Vice of Jennifer Mathis (dt, COURT STAFF) (Filed on 10/20/2006) (Entered: 10/20/2006)
17 ORDER by Judge William Alsup granting 4 Motion for Pro Hac Vice of Dorothy Siemon (dt, COURT STAFF) (Filed on 10/20/2006) (Entered: 10/20/2006)
22 CERTIFICATE OF SERVICE by Woodrow Falls, Jr, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco (Attachments: # 1 Return of Service−Complaint# 2 Attachment to Return of Service−Complaint# 3 Return of Service−First Amended Complaint)(Gershon, Elissa) (Filed on 10/24/2006) (Entered: 10/24/2006)
23 ORDER GRANTING EX PARTE MOTION TO PROCEED UNDER FICTITIOUS NAMES AND SEALING DOCUMENTS by Judge Alsup granting 3 Ex Parte Application. (whalc2, COURT STAFF) (Filed on 10/25/2006) (Entered: 10/25/2006)
25 Proposed MOTION Order Setting Initial Case Management Conference filed by Mark Chambers. (Attachments: # 1 Declaration of Elissa Gershon)(Gershon, Elissa) (Filed on 12/1/2006) (Entered: 12/01/2006)
26 CERTIFICATE OF SERVICE 25 by Mark Chambers (Gershon, Elissa) (Filed on 12/1/2006) Modified on 12/4/2006 (sis, COURT STAFF). (Entered: 12/01/2006)
27 CLERK'S NOTICE Not Relating Case: C−00−2532−SBA (jlm, COURT STAFF) (Filed on 12/1/2006) (Entered: 12/04/2006)
28 ADMINISTRATIVE MOTION AND ORDER TO MODIFY SCHEDULING ORDER. Signed by Judge William Alsup on 12/6/2006. (whasec, COURT STAFF) (Filed on 12/6/2006) (Entered: 12/06/2006)
29 CERTIFICATE OF SERVICE 28 by Mark Chambers (Gershon, Elissa) (Filed on 12/6/2006) Modified on 12/7/2006 (sis, COURT STAFF). (Entered: 12/06/2006)
30 CERTIFICATE OF SERVICE 27 by Mark Chambers Related Case Order (Gershon, Elissa) (Filed on 12/6/2006) Modified on 12/7/2006 (sis, COURT STAFF). (Entered: 12/06/2006)
31 NOTICE of Appearance by Kathleen Suzanne Morris (Morris, Kathleen) (Filed on 12/14/2006) (Entered: 12/14/2006)

Case: 3:06-cv-6346 As of: 10/18/2017 07:44 PM PDT 12 of 18

12/14/2006 12/22/2006 01/29/2007 01/30/2007 02/01/2007
02/06/2007 02/09/2007
02/09/2007
04/04/2007 05/10/2007 05/14/2007 06/07/2007 06/07/2007 06/07/2007

32 STIPULATION to Extend Time to Answer Complaint by City and County of San Francisco. (Morris, Kathleen) (Filed on 12/14/2006) (Entered: 12/14/2006)
33 Defendant City and County of San Francisco's 10 ANSWER to Amended Complaint and Demand for Trial by Jury byCity and County of San Francisco. (Morris, Kathleen) (Filed on 12/22/2006) Modified on 12/28/2006 (sis, COURT STAFF). (Entered: 12/22/2006)
34 STIPULATION AND [PROPOSED] ORDER TO STAY LITIGATION FOR SETTLEMENT PURPOSES by Woodrow Falls, Jr, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco. (Gershon, Elissa) (Filed on 1/29/2007) (Entered: 01/29/2007)
35 ORDER DENYING REQUEST TO STAY LITIGATION. Signed by Judge Alsup on 1/30/2007. (whalc2, COURT STAFF) (Filed on 1/30/2007) (Entered: 01/30/2007)
36 JOINT CASE MANAGEMENT STATEMENT filed by Woodrow Falls, Jr, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco. (Attachments: # 1 Exhibit A (Plaintiffs' Initial Disclosures)# 2 Exhibit B (Defendant's Initial Disclosures))(Su, Henry) (Filed on 2/1/2007) (Entered: 02/01/2007)
37 CLERK'S NOTICE Rescheduling Hearing Time. Case Management Conference set for 2/8/2007 04:00 PM. (dt, COURT STAFF) (Filed on 2/6/2007) (Entered: 02/06/2007)
38 CASE MANAGEMENT SCHEDULING ORDER: ORDER REFERRING CASE to Magistrate Judge Edward M. Chen for Mediation/Settlement. Bench Trial set for 6/2/2008 07:30 AM in Courtroom 9, 19th Floor, San Francisco. Discovery due by 1/25/2008. Motions due by 3/13/2008. Pretrial Conference set for 5/19/2008 02:00 PM in Courtroom 9, 19th Floor, San Francisco. Signed by Judge William Alsup on 2/9/2007. (whasec, COURT STAFF) (Filed on 2/9/2007) (Entered: 02/09/2007)
39 Minute Entry: Initial Case Management Conference held on 2/8/2007 before William H. Alsup. CASE REFERRED to Magistrate Judge Chen for Settlement/Mediation. Initial Disclosures shall be completed by 2/28/2007. Last day to file Motion for Class Certification 6/07/2007. Discovery cutoff 1/25/2008. Last day to file Motion for Summary Judgment 3/13/2008. Pretrial Conference set for 5/19/2008 02:00 PM. Bench Trial set for 6/2/2008 07:30 AM. (Court Reporter Belle Ball) (lmh, COURT STAFF) (Date Filed: 2/9/2007) (Entered: 02/09/2007)
40 ORDER − Notice of Settlement Conference and Settlement Conference Order. Settlement Conference set for 8/16/2007 09:30 AM. Signed by Magistrate Judge Edward M. Chen on 4/4/2007. (emcsec, COURT STAFF) (Filed on 4/4/2007) (Entered: 04/04/2007)
41 STIPULATION AND (PROPOSED) PROTECTIVE ORDER CONCERNING DISCLOSURE OF INFORMATION FOR NAMED PLAINTIFFS by Mark Chambers. (Gershon, Elissa) (Filed on 5/10/2007) (Entered: 05/10/2007)
42 ORDER APPROVING STIPULATED PROTECTIVE ORDER SUBJECT TO STATED CONDITIONS. Signed by Judge Alsup on 5/14/2007. (whalc2, COURT STAFF) (Filed on 5/14/2007) (Entered: 05/14/2007)
43 MOTION to Certify Class filed by Woodrow Falls, Jr, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T.. Motion Hearing set for 7/13/2007 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Su, Henry) (Filed on 6/7/2007) (Entered: 06/07/2007)
44 Declaration of Elissa Gershon in Support of 43 MOTION to Certify Class filed byWoodrow Falls, Jr, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T.. (Related document(s) 43 ) (Su, Henry) (Filed on 6/7/2007) (Entered: 06/07/2007)
45 Declaration of Arlene B. Mayerson in Support of 43 MOTION to Certify Class filed byWoodrow Falls, Jr, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T.. (Related document(s) 43 ) (Su, Henry) (Filed on 6/7/2007) (Entered: 06/07/2007)

Case: 3:06-cv-6346 As of: 10/18/2017 07:44 PM PDT 13 of 18

06/07/2007 06/08/2007
06/08/2007 06/22/2007 06/28/2007 06/28/2007
07/12/2007 07/12/2007 07/12/2007 07/18/2007 07/20/2007 07/23/2007 07/25/2007 07/25/2007 07/26/2007

46 Declaration of Jennifer Mathis in Support of 43 MOTION to Certify Class filed byWoodrow Falls, Jr, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T.. (Related document(s) 43 ) (Su, Henry) (Filed on 6/7/2007) (Entered: 06/08/2007)
47 *** FILED IN ERROR. PLEASE SEE DOCKET # 48 . *** Declaration of Henry C. Su in Support of 43 MOTION to Certify Class filed byWoodrow Falls, Jr, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T.. (Attachments: # 1 Exhibit A (part 1 of 2)# 2 Exhibit A (part 2 of 2)# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E# 7 Exhibit F# 8 Exhibit G)(Related document(s) 43 ) (Su, Henry) (Filed on 6/8/2007) Modified on 6/8/2007 (ewn, COURT STAFF). Modified on 6/11/2007 (sis, COURT STAFF). (Entered: 06/08/2007)
48 Declaration of Henry C. Su in Support of 43 MOTION to Certify Class CORRECTION OF DOCKET # 47 filed byWoodrow Falls, Jr, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T.. (Related document(s) 43 ) (Su, Henry) (Filed on 6/8/2007) (Entered: 06/08/2007)
49 Statement of Non−Opposition re 43 MOTION to Certify Class filed byCity and County of San Francisco. (Related document(s) 43 ) (Morris, Kathleen) (Filed on 6/22/2007) (Entered: 06/22/2007)
50 NOTICE by City and County of San Francisco Notice of Unavailability (Morris, Kathleen) (Filed on 6/28/2007) (Entered: 06/28/2007)
51 MEMORANDUM in Support re 43 MOTION to Certify Class (Supplemental Memorandum in Support) filed byWoodrow Falls, Jr, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T.. (Attachments: # 1 Affidavit (Supplemental Declaration of Henry C. Su)# 2 Exhibit A)(Related document(s) 43 ) (Su, Henry) (Filed on 6/28/2007) (Entered: 06/28/2007)
52 ORDER WITHDRAWING REFERENCE TO JUDGE CHEN AND REFERRING CASE TO JUDGE ZIMMERMAN FOR MEDIATION/SETTLEMENT. Signed by Judge Alsup on 7/12/2007. (whalc2, COURT STAFF) (Filed on 7/12/2007) (Entered: 07/12/2007)
53 ORDER GRANTING MOTION FOR CLASS CERTIFICATION by Judge Alsup granting 43 Motion to Certify Class. (whalc2, COURT STAFF) (Filed on 7/12/2007) (Entered: 07/12/2007)
54 Minute Entry: Motion Hearing held on 7/12/2007 before William Alsup (Date Filed: 7/12/2007) re 43 MOTION to Certify Class filed by Woodrow Falls, Jr., Gerald Scott, Mark Chambers, Mary T., M.H., Phillip K.. (Court Reporter Jim Yeomans.) (dt, COURT STAFF) (Date Filed: 7/12/2007) (Entered: 07/12/2007)
55 NOTICE of Change In Counsel by James Moxon Emery (Emery, James) (Filed on 7/18/2007) (Entered: 07/18/2007)
56 STIPULATION and [proposed] order re notice of class certification by Woodrow Falls, Jr, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco. (Attachments: # 1 Exhibit Notice of Class Action)(Zirker, Elizabeth) (Filed on 7/20/2007) (Entered: 07/20/2007)
57 ORDER DENYING APPROVAL OF PROPOSED CLASS NOTICE. Signed by Judge Alsup on 7/23/2007. (whalc2, COURT STAFF) (Filed on 7/23/2007) Additional attachment(s) added on 7/24/2007 (rbe, COURT STAFF). (Entered: 07/23/2007)
58 ORDER SCHEDULING SETTLEMENT CONFERENCE. Signed by Magistrate Judge Bernard Zimmerman on 7/25/2007. (bzsec, COURT STAFF) (Filed on 7/25/2007) (Entered: 07/25/2007)
Set/Reset Hearings: Settlement Conference set for 8/28/2007 09:00 AM. (sis, COURT STAFF) (Filed on 7/25/2007) (Entered: 07/26/2007)
59 STIPULATION Revised Stipulation and Proposed Order Re Class Notice by Woodrow Falls, Jr, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco. (Attachments: # 1 Exhibit Exhibit A to revised stipulation−Class Notice)(Zirker, Elizabeth) (Filed on 7/26/2007) (Entered: 07/26/2007)

Case: 3:06-cv-6346 As of: 10/18/2017 07:44 PM PDT 14 of 18

07/26/2007
07/30/2007 08/28/2007 08/28/2007 09/25/2007 09/25/2007
10/04/2007 11/14/2007 11/15/2007 11/16/2007 11/16/2007 11/16/2007 11/20/2007 11/26/2007 12/04/2007 12/04/2007 02/14/2008 03/19/2008

60 Declaration of Elizabeth Zirker in Support of 59 Stipulation, Revised Stipulationand Proposed Order re Class Certification filed byWoodrow Falls, Jr, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco. (Attachments: # 1 Exhibit Exhibit B to Zirker Declaration)(Related document(s) 59 ) (Zirker, Elizabeth) (Filed on 7/26/2007) (Entered: 07/26/2007)
61 STIPULATION AND ORDER RE NOTICE OF CLASS CERTIFICATION. Signed by Judge Alsup on 7/30/2007. (whalc2, COURT STAFF) (Filed on 7/30/2007) (Entered: 07/30/2007)
62 Minute Entry: Settlement Conference held. Further settlement conference scheduled. (Date Filed: 8/28/2007). (bzsec, COURT STAFF) (Date Filed: 8/28/2007) (Entered: 08/28/2007)
63 CLERK'S NOTICE SCHEDULING FURTHER SETTLEMENT CONFERENCE. (bzsec, COURT STAFF) (Filed on 8/28/2007) (Entered: 08/28/2007)
64 Minute Entry: Settlement Conference held. Further settlement conference scheduled for October 2, 2007 at 9:00 a.m. (Date Filed: 9/25/2007). (bzsec, COURT STAFF) (Date Filed: 9/25/2007) (Entered: 09/25/2007)
65 AMENDED Minute Entry correcting date settlement conference was held: Settlement Conference held. Further settlement conference scheduled for October 2, 2007 at 9:00 a.m. (Date Filed: 9/25/2007). (bzsec, COURT STAFF) (Date Filed: 9/25/2007) (Entered: 09/25/2007)
66 Minute Entry: Settlement Conference held. (Date Filed: 10/4/2007). (bzsec, COURT STAFF) (Date Filed: 10/4/2007) (Entered: 10/04/2007)
67 STIPULATION Request for Administrative Relief; Scheduling Stipulation and [Proposed] Order by City and County of San Francisco. (Emery, James) (Filed on 11/14/2007) (Entered: 11/14/2007)
68 ORDER RE REQUEST FOR ADMINISTRATIVE RELIEF. Signed by Judge Alsup on November 16, 2007. (whalc2, COURT STAFF) (Filed on 11/15/2007) (Entered: 11/15/2007)
69 RESPONSE in Support Supplemental Brief Supporting The Parties' Joint Request for Administrative Relief filed byCity and County of San Francisco. (Emery, James) (Filed on 11/16/2007) (Entered: 11/16/2007)
70 ORDER RE PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT. Signed by Judge Alsup on November 16, 2007. (whalc2, COURT STAFF) (Filed on 11/16/2007) (Entered: 11/16/2007)
71 Letter from Defendant City and County of San Francisco To Hon. William Alsup. (Emery, James) (Filed on 11/16/2007) (Entered: 11/16/2007)
72 Minute Entry: Hearing re: Status of Settlement held on 11/20/2007 before Judge William Alsup (Date Filed: 11/20/2007). (Court Reporter Belle Ball.) (jjo, COURT STAFF) (Date Filed: 11/20/2007) (Entered: 11/20/2007)
73 ORDER RE REQUEST FOR ADMINISTRATIVE RELIEF. Signed by Judge Alsup on November 26, 2007. (whalc2, COURT STAFF) (Filed on 11/26/2007) (Entered: 11/26/2007)
74 CLERK'S NOTICE − Judge Jeffrey S. White has reviewed the motion to relate and and has determined that no cases are related and no reassignments shall occur. (jjo, COURT STAFF) (Filed on 12/4/2007) (Entered: 12/04/2007)
75 CLERK'S NOTICE − Judge William Alsup has reviewed the motion to relate and has determine that no cases are related and no reassignment shall occur. (dt, COURT STAFF) (Filed on 12/4/2007) (Entered: 12/04/2007)
76 Letter from The City and County of San Francisco. (Emery, James) (Filed on 2/14/2008) (Entered: 02/14/2008)
77 Letter from James M. Emery to Judge Alsup re City Approval of Tentative Settlement. (Emery, James) (Filed on 3/19/2008) (Entered: 03/19/2008)

Case: 3:06-cv-6346 As of: 10/18/2017 07:44 PM PDT 15 of 18

03/19/2008 03/19/2008 03/19/2008 03/20/2008 03/24/2008 04/24/2008
04/24/2008 04/28/2008 05/08/2008 05/08/2008
08/07/2008

78 STIPULATION Scheduling Stipulation and [Proposed] Order by City and County of San Francisco. (Emery, James) (Filed on 3/19/2008) (Entered: 03/19/2008)
79 AMENDED CASE MANAGEMENT SCHEDULING ORDER AND REMINDER NOTICE OF UPCOMING TRIAL AND FINAL PRETRIAL CONFERENCE: Bench Trial set for 7/28/2008 07:30 AM in Courtroom 9, 19th Floor, San Francisco. Pretrial Conference set for 7/14/2008 02:00 PM in Courtroom 9, 19th Floor, San Francisco. Signed by Judge William Alsup on 3/19/2008. (whasec, COURT STAFF) (Filed on 3/19/2008) (Entered: 03/19/2008)
80 ORDER DENYING SCHEDULING STIPULATION [re 78 Stipulation filed by City and County of San Francisco]. Signed by Judge William Alsup on 3/19/2008. (whasec, COURT STAFF) (Filed on 3/19/2008) (Entered: 03/19/2008)
81 STIPULATION and [Proposed] Order to Modify Scheduling Order by Woodrow Falls, Jr, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco. (Zirker, Elizabeth) (Filed on 3/20/2008) (Entered: 03/20/2008)
82 STIPULATION AND ORDER TO MODIFY SCHEDULING ORDER. Signed by Judge Alsup on March 24, 2008. (whalc2, COURT STAFF) (Filed on 3/24/2008) (Entered: 03/24/2008)
83 Joint MOTION for Settlement Joint Notice of Motion and Motion for Preliminary Approval of Class Settlement Agreement, Directing Notice to the Class for a Scheduling Order and Fairness Hearing; and to Vacate the Trial Date; Memorandum of Points and Authorities filed by Woodrow Falls, Jr, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco, City and County of San Francisco. Motion Hearing set for 5/8/2008 11:00 AM in Courtroom 9, 19th Floor, San Francisco. (Attachments: # 1 Proposed Order proposed Order Granting Preliminary Approval of Settlement Agreement, Directing Notice to the Class, for a Scheduling Order and Fairness Hearing, and to Vacate the Trial Date, # 2 Declaration of Elissa Gershon in Support of Joint Motion, # 3 Exhibits 1,2 & 3 to Gershon Declaration in Support of Motion)(Gershon, Elissa) (Filed on 4/24/2008) (Entered: 04/24/2008)
84 Letter Brief re: Proposed Protective Order to be considered in conjunction with the Settlement Agreement filed byWoodrow Falls, Jr, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco. (Attachments: # 1 Proposed Order Protective Order: Stipulation and [Proposed] Order, # 2 Exhibit Exhibit A to Proposed Protective Order, # 3 Exhibit Exhibit B to Proposed Protective Order)(Gershon, Elissa) (Filed on 4/24/2008) (Entered: 04/24/2008)
85 ORDER APPROVING STIPULATED PROTECTIVE ORDER SUBJECT TO STATED CONDITIONS. Signed by Judge Alsup on April 28, 2008. (whalc2, COURT STAFF) (Filed on 4/28/2008) (Entered: 04/28/2008)
86 ORDER GRANTING PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT by Judge William Alsup granting 83 Motion for Settlement. Fairness Hearing set for 9/18/2008 12:00 PM. (dt, COURT STAFF) (Filed on 5/8/2008) (Entered: 05/08/2008)
87 Minute Entry: Motion Hearing held on 5/8/2008 before William Alsup (Date Filed: 5/8/2008) re 83 Joint MOTION for Settlement Joint Notice of Motion and Motion for Preliminary Approval of Class Settlement Agreement, Directing Notice to the Class for a Scheduling Order and Fairness Hearing; and to Vacate the Trial Date; Memorandum of Points and Au filed by Woodrow Falls, Jr., Mark Chambers, Mary T., M.H., City and County of San Francisco, The Independent Living Resource Center of San Francisco, Gerald Scott, Phillip K. Motion Hearing set for 9/18/2008 12:00 PM. (Court Reporter Kathy Wyatt.) (dt, COURT STAFF) (Date Filed: 5/8/2008) (Entered: 05/08/2008)
88 NOTICE by Woodrow Falls, Jr, M.H., Mark Chambers, Phillip K., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco And Proposed Order to Remove Name of Phillip K. from Future Filings due to his Death (Attachments: # 1 Declaration of)(Zirker, Elizabeth) (Filed on 8/7/2008) (Entered: 08/07/2008)

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08/08/2008 08/15/2008
09/15/2008 09/18/2008 09/18/2008
09/23/2008 11/21/2008 12/01/2008 12/01/2008 12/04/2008 12/11/2008 12/16/2008 06/09/2009 06/10/2009 06/11/2009 11/30/2009

89 ORDER TO REMOVE PLAINTIFF PHILLIP K. FROM FUTURE FILINGS. Signed by Judge Alsup on August 8, 2008. (whalc2, COURT STAFF) (Filed on 8/8/2008) (Entered: 08/08/2008)
90 Letter Brief RE: Responses during Notice Period filed byWoodrow Falls, Jr, M.H., Mark Chambers, Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco, City and County of San Francisco. (Attachments: # 1 Attachment A, # 2 Attachment B, # 3 Attachment C)(Zirker, Elizabeth) (Filed on 8/15/2008) (Entered: 08/15/2008)
91 Letter from Parties re Fairness Hearing in Chambers v. CCSF. (Attachments: # 1 Proposed Order Granting Final Approval of Settlement Agreement)(Gershon, Elissa) (Filed on 9/15/2008) (Entered: 09/15/2008)
92 Minute Entry: Fairness Hearing held on 9/18/2008 before William Alsup (Date Filed: 9/18/2008). People addressed the Court in support of the settlement. Case Management Conference set for 12/11/2008 11:00 AM. (Court Reporter Lydia Zinn.) (dt, COURT STAFF) (Date Filed: 9/18/2008) (Entered: 09/18/2008)
93 ORDER GRANTING FINAL APPROVAL OF SETTLEMENT AGREEMENT re 91 Letter filed by The Independent Living Resource Center of San Francisco, Woodrow Falls, Jr., Gerald Scott, Mark Chambers, Mary T., M.H., City and County of San Francisco. Signed by Judge William Alsup on 9/18/8. (dt, COURT STAFF) (Filed on 9/18/2008) (Entered: 09/18/2008)
94 NOTICE by Mark Chambers NOTICE OF NAME CHANGE FOR PROTECTION & ADVOCACY, INC. (PAI) TO DISABILITY RIGHTS CALIFORNIA (Zirker, Elizabeth) (Filed on 9/23/2008) (Entered: 09/23/2008)
95 ORDER RE CLOSING FILE. PLEASE RESPOND BY NOON ON 12/1/2008. Signed by Judge William Alsup on 1/21/2008. (whasec, COURT STAFF) (Filed on 11/21/2008) (Entered: 11/21/2008)
96 Statement of Non−Opposition to Order re: Closing File filed byWoodrow Falls, Jr, M.H., Mark Chambers, Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco. (Zirker, Elizabeth) (Filed on 12/1/2008) (Entered: 12/01/2008)
97 Response to Order Re: Closing File byCity and County of San Francisco. (Emery, James) (Filed on 12/1/2008) (Entered: 12/01/2008)
98 CASE MANAGEMENT STATEMENT filed by Mark Chambers. (Gershon, Elissa) (Filed on 12/4/2008) (Entered: 12/04/2008)
99 Minute Entry: Further Case Management Conference held on 12/11/2008 before William Alsup (Date Filed: 12/11/2008). Further Case Management Conference set for 6/11/2009 11:00 AM. (Court Reporter Sahar McVickar.) (dt, COURT STAFF) (Date Filed: 12/11/2008) (Entered: 12/12/2008)
100 STATUS REPORT JOINT REPORT AFTER CASE MANAGEMENT CONFERENCE HELD ON DECEMBER 12, 2008 by Mark Chambers. (Gershon, Elissa) (Filed on 12/16/2008) (Entered: 12/16/2008)
101 JOINT CASE MANAGEMENT STATEMENT filed by City and County of San Francisco. (Emery, James) (Filed on 6/9/2009) (Entered: 06/09/2009)
102 QUESTIONS FOR COUNSEL AT THE FURTHER CASE MANAGEMENT CONFERENCE. Signed by Judge William Alsup on 6/10/2009. (whasec, COURT STAFF) (Filed on 6/10/2009) (Entered: 06/10/2009)
103 Minute Entry: Further Case Management Conference held on 6/11/2009 before William Alsup (Date Filed: 6/11/2009). Further Case Management Conference set for 12/3/2009 11:00 AM. (Court Reporter Lydia Zinn.) (dt, COURT STAFF) (Date Filed: 6/11/2009) (Entered: 06/19/2009)
104 JOINT CASE MANAGEMENT STATEMENT filed by Mark Chambers, Woodrow Falls, Jr, Phillip K., M.H., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco. (Gershon, Elissa) (Filed on 11/30/2009) (Entered: 11/30/2009)

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12/03/2009 12/03/2009 12/03/2009
02/25/2010 05/17/2010
06/09/2010 06/16/2010 06/16/2010 11/11/2010 11/23/2010
11/24/2010 12/02/2010
12/30/2010 02/07/2011
03/02/2011 03/07/2011

105 ORDER SETTING FURTHER CMC. Signed by Judge Alsup on December 3, 2009. (whalc2, COURT STAFF) (Filed on 12/3/2009) (Entered: 12/03/2009)
Set Deadlines/Hearings: Case Management Statement due by 5/27/2010. Further Case Management Conference set for 6/3/2010 11:00 AM in Courtroom 9, 19th Floor, San Francisco. (sis, COURT STAFF) (Filed on 12/3/2009) (Entered: 12/04/2009)
106 Minute Entry: Further Case Management Conference held on 12/3/2009 before William Alsup (Date Filed: 12/3/2009). Further Case Management Conference set for 6/3/2010 11:00 AM. (Court Reporter Joan Columbini.) (dt, COURT STAFF) (Date Filed: 12/3/2009) (Entered: 12/07/2009)
107 Letter from Elissa Gershon Updating Status of Lead Plaintiff Mark Chambers moving to community living arrangement. (Gershon, Elissa) (Filed on 2/25/2010) (Entered: 02/25/2010)
108 CLERKS NOTICE RESCHEDULING HEARING Case Management Statement due by 6/9/2010. Case Management Conference set for 6/16/2010 11:00 AM in Courtroom 9, 19th Floor, San Francisco. (sis, COURT STAFF) (Filed on 5/17/2010) (Entered: 05/17/2010)
109 JOINT CASE MANAGEMENT STATEMENT filed by City and County of San Francisco. (Emery, James) (Filed on 6/9/2010) (Entered: 06/09/2010)
110 Minute Entry: Further Case Management Conference held on 6/16/2010 before William Alsup (Date Filed: 6/16/2010). (Court Reporter Joan Columbini.) (dt, COURT STAFF) (Date Filed: 6/16/2010) (Entered: 06/17/2010)
Set/Reset Hearings: Further Case Management Conference set for 12/2/2010 11:00 AM in Courtroom 9, 19th Floor, San Francisco. (wsn, COURT STAFF) (Filed on 6/16/2010) (Entered: 06/21/2010)
111 NOTICE of Change of Address by Arlene Brynne Mayerson : PLAINTIFFS' NOTICE OF CHANGE OF ADDRESS FOR DISABILITY RIGHTS EDUCATION & DEFENSE FUND, INC. (Mayerson, Arlene) (Filed on 11/11/2010) (Entered: 11/11/2010)
112 CASE MANAGEMENT STATEMENT Jt. Case Management Statement filed by Mark Chambers, Woodrow Falls, Jr, Phillip K., M.H., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco. (Gershon, Elissa) (Filed on 11/23/2010) (Entered: 11/23/2010)
113 CLERKS NOTICE Rescheduling Hearing Time. Case Management Conference set for 12/2/2010 03:00 PM. (dt, COURT STAFF) (Filed on 11/24/2010) (Entered: 11/24/2010)
114 Minute Entry: Further Case Management Conference held on 12/2/2010 before William Alsup (Date Filed: 12/2/2010). Further Case Management Conference set for 5/26/2011 11:00 AM. (Court Reporter Sahar McVickar.) (dt, COURT STAFF) (Date Filed: 12/2/2010) (Entered: 12/03/2010)
115 Letter from Elissa Gershon, Attorney for Plaintiffs; and Aleeta van Runkle, Attorney for Defendants CCSF Summary of Parties Meet and Confer Efforts. (Gershon, Elissa) (Filed on 12/30/2010) (Entered: 12/30/2010)
116 MEMORANDUM OPINION CONCERNING THE END OF JURISDICTION IN THIS MATTER. Signed by Judge Alsup on February 7, 2011. (whalc2, COURT STAFF) (Filed on 2/7/2011) (Additional attachment(s) added on 2/7/2011: # 1 Certificate of Service) (dt, COURT STAFF). (Entered: 02/07/2011)
117 CLERKS NOTICE Rescheduling Hearing Time. Further Case Management Conference set for 5/26/2011 03:00 PM in Courtroom 9, 19th Floor, San Francisco. (dtS, COURT STAFF) (Filed on 3/2/2011) (Entered: 03/02/2011)
118 MOTION to Withdraw as Attorney Unopposed Motion to Withdraw Joseph Song, Henry C. Su, Gregg Aaron Myers and Robert F. Kramer as Counsel of Record for Plaintiffs filed by Mark Chambers. (Attachments: # 1 Proposed Order)(Song, Joseph) (Filed on 3/7/2011) (Entered: 03/07/2011)

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03/07/2011 03/07/2011
05/19/2011 05/27/2011 09/15/2011 09/29/2011 08/28/2013 09/03/2013

119 Declaration of Joseph Song in Support of 118 MOTION to Withdraw as Attorney Unopposed Motion to Withdraw Joseph Song, Henry C. Su, Gregg Aaron Myers and Robert F. Kramer as Counsel of Record for Plaintiffs filed byMark Chambers. (Related document(s) 118 ) (Song, Joseph) (Filed on 3/7/2011) (Entered: 03/07/2011)
120 ORDER GRANTING UNOPPOSED MOTION BY ATTORNEYS SONG, SU, MYERS, AND KRAMER TO WITHDRAW AS COUNSEL FOR PLAINTIFFS by Judge Alsup granting 118 Motion to Withdraw as Attorney. Attorney Joseph Song; Henry C. Su; Robert F. Kramer and Gregg Aaron Myers terminated (whalc2, COURT STAFF) (Filed on 3/7/2011) (Entered: 03/07/2011)
121 CASE MANAGEMENT STATEMENT Joint Case Management Statement filed by Mark Chambers, Woodrow Falls, Jr, Phillip K., M.H., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco. (Gershon, Elissa) (Filed on 5/19/2011) (Entered: 05/19/2011)
122 Minute Entry: Further Case Management Conference held on 5/26/2011 before William Alsup (Date Filed: 5/27/2011). (Not Reported.) (tlS, COURT STAFF) (Date Filed: 5/27/2011) (Entered: 05/27/2011)
123 STIPULATION and [Proposed] Order Regarding Continuing Reporting and Jurisdiction by Mark Chambers, Woodrow Falls, Jr, Phillip K., M.H., Gerald Scott, Mary T., The Independent Living Resource Center of San Francisco. (Gershon, Elissa) (Filed on 9/15/2011) (Entered: 09/15/2011)
124 ORDER REGARDING CONTINUING REPORTING AND JURISDICTION re 123 Stipulation, filed by The Independent Living Resource Center of San Francisco, Woodrow Falls, Jr., Gerald Scott, Mark Chambers, Mary T., M.H., Phillip K. (whalc2, COURT STAFF) (Filed on 9/29/2011) (Entered: 09/29/2011)
125 Letter from James M. Emery To The Honorable Judge William H. Alsup. (Emery, James) (Filed on 8/28/2013) (Entered: 08/28/2013)
126 ORDER re 125 Letter filed by City and County of San Francisco. Signed by Judge Alsup on 9/3/2013. (whalc2, COURT STAFF) (Filed on 9/3/2013) (Entered: 09/03/2013)


[CONTENT] October 11, 2006 | Americans | the Rehabilitation Act | California | the United States | District Court | the Northern District | California ||| Defendant ||| Specifically, Plaintiffs | Defendants | Plaintiffs | Laguna Honda Hospital and Rehabilitation Center | Laguna Honda |||  ||| Named Plaintiffs | Laguna Honda ||| Laguna Honda | more than 1,000 ||| CMS ||| 2003 | the Department of Justice | Defendant | ADA | Laguna Honda |||  ||| January 30, 2007 | William Alsup ||| July 12, 2007 |||  ||| Medi-Cal | 1 | Laguna Honda Hospital and Rehabilitation Center | 2 | Laguna Honda Hospital and Rehabilitation Center | 3 | two year | Laguna Honda Hospital and Rehabilitation Center | 4 | San Francisco General Hospital | San Francisco | Laguna Honda Hospital and Rehabilitation Center ||| November 16, 2007 ||| Alsup ||| November 26, 2007 |||  ||| 300,000 | 200,000 ||| Court ||| December 2007 ||| Plaintiffs | Laguna Honda | San Francisco | Plaintiffs | Defendant | the Nursing Facility/Acute Hospital Waiver | Defendant | Community Integration Program | Defendant | Defendant | Defendant | Laguna Honda | Defendant | Laguna Honda |||  ||| three years | Court ||| September 18, 2008 | Court ||| Court ||| 2009 | 2011 ||| Feb. 7, 2011 | Sept. 18, 2011 | the Laguna Honda Hospital Rent Subsidy Program | Sept. 18, 2013 ||| Sept. 3, 2013 ||| Settlement | 500 | Laguna Honda | 270 |||  [SUMMARY] On October 11, 2006, individuals with disabilities in need of long-term care filed a lawsuit under the Americans with Disabilities Act, the Rehabilitation Act, and California law in the United States District Court for the Northern District of California.  Plaintiffs, represented by public interest and private counsel, claimed that Defendant failed to provide them with services in the most integrated setting appropriate.  Specifically, Plaintiffs claimed that Defendants' policies and practices resulted in Plaintiffs' unnecessary isolation at Laguna Honda Hospital and Rehabilitation Center (Laguna Honda).  Plaintiffs sought declaratory and injunctive relief to compel Defendants to provide them with timely access to home and community-based long-term care services.

Named Plaintiffs were a number of current adult residents of Laguna Honda who had disabilities but had been recommended for discharge or who had been identified as being able to live in the community with appropriate service provision.  

At the time of filing, Laguna Honda housed more than 1,000 individuals.  It had been repeatedly cited for standard of care deficiencies, and CMS had threatened to withdraw federal funding from the hospital.  In 2003, the Department of Justice issued a letter of findings against Defendant for violations of the ADA with respect to Laguna Honda.  The DOJ ordered Defendant to implement certain remedial measures, but they had not been implemented at the time Plaintiffs filed their complaint.

On January 30, 2007, the court (Judge William Alsup) denied the parties' joint request to stay litigation for the purposes of settlement.

The court granted Plaintiffs' motion for class certification on July 12, 2007.  Defendants had filed a statement of non-opposition.  The class was defined as: "All adult Medi-Cal beneficiaries who are: (1) residents of Laguna Honda Hospital and Rehabilitation Center; (2) on waiting lists for Laguna Honda Hospital and Rehabilitation Center; (3) within two year post-discharge from Laguna Honda Hospital and Rehabilitation Center; or (4) patients at San Francisco General Hospital or other hospitals owned or controlled by the City and County of San Francisco, who are eligible for discharge to Laguna Honda Hospital and Rehabilitation Center."

On November 16, 2007, the court issued an order regarding preliminary approval of the settlement agreement.  The court ordered the parties to meet with Judge Alsup to consider preliminary approval of the settlement agreement before ruling on the request for administrative relief.

On November 26, 2007, the court issued an order regarding the request for administrative relief.  The parties had agreed that no individual claims for damages by class members were waived under the settlement agreement. The parties also jointly recommended a $300,000 fee award to class counsel for fees and costs, and $200,000 for compliance oversight.  In light of the agreement, the Court approved the parties' joint request for administrative relief.

The parties signed a settlement agreement in December 2007.  The parties agreed as follows: the parties would assess the services and housing being provided to named Plaintiffs who had been discharged from Laguna Honda; San Francisco would provide a rental subsidy for independent housing for named Plaintiffs where appropriate; Defendant would alter or begin certain practices to maximize opportunities for class members to access home and community-based services through the Nursing Facility/Acute Hospital Waiver; Defendant would make a Diversion and Community Integration Program fully operational; Defendant would provide case management and wrap-around services; Defendant would preserve, provide, and monitor community-based housing for appropriate class members; Defendant would enhance mental health and substance abuse services at Laguna Honda; and Defendant would limit the capacity of Laguna Honda.  The settlement agreement also established grievance procedures for class members and data collection and reporting obligations.  The agreement was scheduled to terminate three years from the date of final approval by the Court.

On September 18, 2008, the Court granted final approval of the settlement agreement.  The Court entered judgment, awarded attorney fees and costs as agreed by the parties, and retained jurisdiction for the purpose of assuring compliance.

The parties filed a series of joint case management statements from 2009 through 2011 detailing the status of the implementation of the settlement agreement.  On Feb. 7, 2011, the court issued an order stating that its jurisdiction would end on Sept. 18, 2011 "as to all rights and obligations of the parties except with regard to the Laguna Honda Hospital Rent Subsidy Program," and on Sept. 18, 2013 "as to all other rights and obligations of the parties." On Sept. 3, 2013, the court issued an order indicating that the defendants had complied with the last of the Settlement terms. In the order, the court modified a Settlement term requiring the defendants to subsidize 500 rental homes for Laguna Honda residents down to 270 homes due to significantly lower demand for such homes. 

There has been no further litigation, and it appears to be closed.