Case 2:14-cv-08013-FMO-AGR Document 112 Filed 03/29/16 Page 1 of 10 Page ID #:7970

VANITA GUPTA
1 Principal Deputy Assistant Attorney General
EVE L. HILL
2 Deputy Assistant Attorney General
STEVEN H. ROSENBAUM
3 Chief, Special Litigation Section
BENJAMIN “BO” TAYLOE
4 Deputy Chief
MATHEW S. SCHUTZER (N.Y. Bar No. 5136007)
5 Trial Attorney
United States Department of Justice, Civil Rights Division
6 Special Litigation Section
950 Pennsylvania Avenue, NW - PHB
7 Washington, DC 20530
Telephone: (202) 616-3179
8 Facsimile: (202) 514-4883
E-mail: mathew.schutzer@usdoj.gov
9

10

EILEEN M. DECKER United States Attorney

11 DOROTHY A. SCHOUTEN
Assistant United States Attorney

12 Chief, Civil Division
ROBYN-MARIE LYON MONTELEONE (State Bar No. 130005)
13 Assistant United States Attorney

14

Chief, General Civil Section 300 North Los Angeles Street, Suite 7516

15 Los Angeles, California 90012
Telephone: (213) 894-2458
16 Facsimile: (213) 894-7819
Email: robby.monteleone@usdoj.gov
17 Attorneys for the United States of America

18

UNITED STATES DISTRICT COURT

19

FOR THE CENTRAL DISTRICT OF CALIFORNIA

20
JERRY THOMAS, by and through his Guardian
21 ad Litem BEVERLY THOMAS, SEAN
22 BENISON, and JUAN PALOMARES,

23

Plaintiffs,

2:CV14-08013-FMO (AGRx)
STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA

24

v.

25 JENNIFER KENT, Director of the
Department of Health Care Services, State of
26 California DEPARTMENT OF HEALTH
CARE SERVICES,
27
Defendants.
28

Date: Time: Courtroom: Judge Trial Date: Action Filed:

April 14, 2016 10:00 a.m. 22 Hon. Fernando M. Olguin July 12, 2016 October, 16, 2014

Case 2:14-cv-08013-FMO-AGR Document 112 Filed 03/29/16 Page 2 of 10 Page ID #:7971

1

STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA

2

The United States files this Statement of Interest, pursuant to 28 U.S.C. § 517,1 because this

3 litigation implicates the proper interpretation and application of Title II of the Americans with

4 Disabilities Act, 42 U.S.C. § 12131 et seq. (the “ADA”) and Section 504 of the Rehabilitation Act, 29

5 U.S.C. § 794(a).2 As the federal agency charged with enforcement and implementation of Title II of

6 the ADA, 42 U.S.C. §§ 12133-12134, the Department of Justice has an interest in supporting the proper

7 and uniform application of the ADA, in furthering Congress’ intent to create “clear, strong, consistent,

8 enforceable standards addressing discrimination against individuals with disabilities,” id. § 12101(b)(2),

9 and in furthering Congress’ intent to reserve a “central role” for the federal Government in enforcing

10 the standards established in the ADA. Id. § 12101(b)(3).

11

Plaintiffs, three individuals with significant physical disabilities requiring substantial medical

12 care, allege that California maintains unnecessarily low limits on the cost of services authorized under

13 California’s Nursing Facility/Acute Hospital Transition and Diversion Home and Community-Based

14 Services Waiver program (the “Waiver”). According to Plaintiffs, Defendants have not implemented a

15 formal process for granting exceptions to these limits when necessary to avoid institutionalization,

16 leaving Plaintiffs and others like them subject to ad hoc determinations by an unguided bureaucracy.

17 Plaintiffs have moved for summary judgment, arguing that this situation places them at serious risk of

18 unnecessary institutionalization in violation of the ADA. The United States submits this Statement of

19 Interest to clarify Defendants’ obligations under the ADA.3

20 1 Pursuant to 28 U.S.C. § 517, the Attorney General may send any officer of the Department of Justice

21 to “attend to the interests of the United States in a suit pending in a court of the United States.”

22

2 Plaintiffs’ Motion for Summary Judgment, ECF No. 100 (Mar. 10, 2016) (“Mot.”) also addresses a claim under the Due Process Clause of the Fourteenth Amendment. The United States takes no position

23 with respect to that claim and addresses only Plaintiffs’ ADA and Rehabilitation Act claims, which are
analyzed identically for all relevant purposes. M.R. v. Dreyfus, 697 F.3d 706, 733 (9th Cir. 2011); U.S.
24 Dep’t of Justice, Statement of the Department of Justice on Enforcement of the Integration Mandate of

Title II of the Americans with Disabilities Act and Olmstead v. L.C. n.4 (June 22, 2011),
25 http://www.ada.gov/olmstead/q&a_olmstead.htm (the “DOJ Olmstead Statement”).

26 3 In addition to opposing Plaintiffs’ Motion for Summary Judgment, Defendants filed a Motion to

27 Dismiss pursuant to Fed. R. Civ. P. 12(b)(1), ECF No. 99 (Mar. 8, 2016), arguing that this case has
become moot by virtue of Defendants’ decision to authorize all medically necessary services for

28

(footnote cont’d on next page)

1

Case 2:14-cv-08013-FMO-AGR Document 112 Filed 03/29/16 Page 3 of 10 Page ID #:7972

1

I. FACTUAL BACKGROUND

2

The Social Security Act permits States, with the approval of the Centers for Medicare and

3 Medicaid Services (“CMS”),4 to provide Medicaid services in community-based settings instead of

4 institutions. 42 U.S.C. § 1396n(c); see also Centers for Medicare and Medicaid Services, 1915(c)

5 Home & Community-Based Waivers, https://www.medicaid.gov/medicaid-chip-program-

6 information/by-topics/waivers/home-and-community-based-1915-c-waivers.html (last visited March

7 23, 2016). These waiver programs must be cost-neutral to the alternative of providing care in an

8 institution. 42 U.S.C. § 1396n(c)(2)(D); 42 C.F.R. § 441.302(e). In the Waiver at issue here,

9 participants may receive services through the Waiver if they require a level of care otherwise available

10 in an institution – e.g. a hospital or nursing facility; the cost of services available to an individual under

11 the Waiver is then capped according to that individual’s designated level of care. P52-53.5 Although

12 the caps correspond to the type of institution in which the individual would otherwise receive services,

13 the Waiver caps are lower than the average cost of providing care in the corresponding institution. P53,

14 P55-61. Defendants have no written policy or process for authorizing exceptions to the cost ceilings.

15 P93-95. Yet on an ad hoc basis the Defendants have administered treatment plans for individuals on

16 the waiver with costs in excess of the applicable limit. P106, 109. Plaintiffs are three men with

17 significant physical disabilities. P116-128, 190-196, 236-242 (describing Plaintiffs’ undisputed

18 Plaintiffs, regardless of the cost limitations. The United States takes no position with respect to the

mootness of Plaintiffs’ claims.
19
4 CMS approval of a Medicaid waiver, as Defendants acknowledge, P28, does not address States’
20 independent obligations under the ADA. See, e.g., Radaszewski v. Maram, 383 F.3d 599, 601 (7th Cir.

21

2004) (allowing the plaintiffs’ claims to proceed without regard to federal approval of the state’s Medicaid plan and waiver programs); Grooms v. Maram, 563 F. Supp. 2d 840, 844, 863 (N.D. Ill.

22 2008) (same). The two statutes impose independent legal obligations. Davis v. Shah, No. 14-cv-543,
slip op. at 74 (2d Cir. Mar. 24, 2016) (“A state’s duties under the ADA are wholly distinct from its

23 obligations under the Medicaid Act”); Townsend v. Quasim, 328 F.3d 511, 518 n.1 (9th Cir. 2003);

Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1182 (10th Cir. 2003) (“the failure to provide
24 Medicaid services in a community-based setting may constitute a form of discrimination”); see also

25 DOJ Olmstead Statement at Question 7 (“A state’s obligations under the ADA are independent from the
requirements of the Medicaid program”). Thus, federal approval of a waiver application does not

26 address the existence of a violation of the ADA.

27 5 Cites to “PXX” or “DXX” refer to the Parties’ Statement of Uncontroverted Facts, ECF No. 102 (Mar.
10, 2016), submitted in connection with Plaintiffs’ Motion for Summary Judgment.
28 2

Case 2:14-cv-08013-FMO-AGR Document 112 Filed 03/29/16 Page 4 of 10 Page ID #:7973

1 medical conditions). The cost of the care each man requires in order to avoid unnecessary

2 institutionalization exceeds the ceiling applicable to each man. P173, 179, 220-221, 229, 291, 293, 298

3 (undisputed that October 2015 letters authorized services in excess of the applicable limit).

4

II. ARGUMENT

5

A. The ADA Prohibits Unjustified Institutionalization

6

Public entities must provide services to individuals with disabilities in the most integrated

7 setting appropriate to their needs. Townsend, 328 F.3d at 517 (“Because DSHS does not allow Mr.

8 Townsend to receive the services for which he is qualified in a community-based, rather than nursing

9 home, setting, Mr. Townsend can prove that the Secretary has violated Title II of the ADA”); Joseph S.

10 v. Hogan, 561 F. Supp. 2d 280, 285 (E.D.N.Y. 2008) (the ADA prohibits “discrimination in the form of

11 unnecessary segregation of those with disabilities in nursing homes and other institutions”). Congress

12 enacted the ADA in order to provide a “clear and comprehensive national mandate for the elimination

13 of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Congress noted that

14 society has “tended to isolate and segregate individuals with disabilities,” and that discrimination,

15 including by institutionalization, “continue[s] to be a serious and pervasive social problem.” Id.

16 §§ 12101(a)(2), (3). Congress therefore prohibited discrimination by public entities, including states

17 and state instrumentalities, against individuals with disabilities, providing that “no qualified individual

18 with a disability shall, by reason of such disability, be excluded from participation in or be denied the

19 benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by

20 any such entity.” 42 U.S.C. § 12132.

21

In Olmstead v. L.C., 527 U.S. 581 (1999), the Supreme Court confirmed that Title II requires

22 states to provide community-based services for individuals with disabilities when “such placement is

23 appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably

24 accommodated….” Id. at 607. That holding, the court explained, reflected “two evident judgments.”

25 Id. at 600. “Institutional placement of persons who can handle and benefit from community settings

26 perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating

27 in community life.” Id. Second, “confinement in an institution severely diminishes the everyday life

28 3

Case 2:14-cv-08013-FMO-AGR Document 112 Filed 03/29/16 Page 5 of 10 Page ID #:7974

1 activities of individuals, including family relations, social contacts, work options, economic

2 independence, educational advancement, and cultural enrichment.” Id. at 601.

3

The Attorney General’s regulations implementing the ADA6 require public entities to

4 “administer services, programs, and activities in the most integrated setting appropriate to the needs of

5 qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). The “most integrated setting” is one

6 which “enables individuals with disabilities to interact with nondisabled persons to the fullest extent

7 possible.” 28 C.F.R. pt. 35 App. B (2011). The regulations prohibit the use of “criteria or methods of

8 administration” that have the “effect of subjecting qualified individuals with disabilities to

9 discrimination on the basis of disability.” 28 C.F.R. § 35.130(b)(3)(i). Finally, the regulations require

10 public entities to “make reasonable modifications in policies, practices, or procedures when the

11 modifications are necessary to avoid discrimination on the basis of disability.”7 Id. § 35.130(b)(7).

12

B. Defendants Cannot Administer the Medicaid Waiver Without Accounting

13

for Individual Needs

14

When limitations on Waiver services place individuals at serious risk of unnecessary

15 institutionalization, the State must make a reasonable modification to those limitations. Cota v.

16 Maxwell-Jolly, 688 F. Supp. 2d 980, 996 (N.D. Cal. 2010) (new law limiting availability of adult day

17 care services likely violated ADA because “the new eligibility criteria likely will result in the

18 termination of [adult day care] services for a large number of persons with disabilities, without regard

19 to the individual’s particular need for such services”) (emphasis added); Radaszewski, 383 F.3d at 609-

20 6 Congress directed the Attorney General to promulgate regulations implementing the anti-

21

discrimination directive of § 12132. 42 U.S.C. § 12134. Given this delegation, the Department of Justice’s interpretation of the ADA and of its own implementing regulations is entitled to deference.

22 Olmstead, 527 U.S. at 597-98. (“Because the Department is the agency directed by Congress to issue
regulations implementing Title II, [internal citation omitted] its views warrant respect.”).

23
7 Defendants have not raised, and the United States does not address, the affirmative defense available

24 to public entities in an ADA case. A public entity may be excused from making modifications to its

service system when it can prove that the change would be a “fundamental alteration.” “A fundamental
25 alteration requires the public entity to prove ‘that, in the allocation of available resources, immediate

26 relief for plaintiffs would be inequitable, given the responsibility the State [or local government] has
taken for the care and treatment of a large and diverse population of persons with [ ] disabilities.’”

27 DOJ Olmstead Statement at Question 10 (quoting Olmstead, 527 U.S. at 604) (alterations in original).

28 4

Case 2:14-cv-08013-FMO-AGR Document 112 Filed 03/29/16 Page 6 of 10 Page ID #:7975

1 10. Limitations on waiver services – for example waiting lists or cost caps – can violate the ADA if

2 they do not accommodate an individual placed at serious risk of unnecessary institutionalization

3 because of those limitations. See, e.g., Cruz v. Dudek, No. 10-cv-23048, 2010 WL 4284955, at *13

4 (S.D. Fla. Oct. 12, 2010) (Florida’s spinal cord injury waiver violated ADA where plaintiffs were

5 “required to enter a nursing home for at least 60 days before they are eligible to receive these services

6 because they are too far down on the waiting list”).

7

To be sure, limitations on services are not per se discrimination. But when the state does

8 impose limitations, the ADA may nonetheless require the state to modify those limitations to avoid

9 serious risk of institutionalization, unless doing so would be a fundamental alteration.8 B.N. v. Murphy,

10 No. 09-cv-199, 2011 WL 5838976, at *7 (N.D. Ind. Nov. 16, 2011) (cap on respite care services

11 discriminated against 14 individuals who were unable to secure alternative services and were at risk of

12 institutionalization without additional respite care); DOJ Olmstead Statement at Question 7 (“the fact

13 that a state is permitted to ‘cap’ the number of individuals it serves in a particular waiver program under

14 the Medicaid Act does not exempt the state from serving additional people in the community to comply

15 with the ADA or other laws”).

16

For instance, the court in Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161 (N.D. Cal. 2009),

17 observed that the challenged state-wide reductions in adult day care services could have been ADA-

18 compliant if the state had “implement[ed] any means of ensuring that, if and when the cuts take effect,

19 the necessary alternative services will be identified and in place for Plaintiffs.” Id. at 1174 (emphasis

20 added). Because the state could not demonstrate the existence of any such means, the court rejected the

21 state’s argument that “Plaintiffs [could] avoid the risk of institutionalization by availing themselves of

22 other, largely unspecified Medi-Cal or other community services.” Id.; see also V.L. v. Wagner, 669 F.

23 Supp. 2d 1106, 1122 (N.D. Cal. 2009) (noting that the state could establish “individualized measures”

24 to reduce In-Home Supportive Services (“IHSS”) where those services were provided for “convenience

25 or improved quality of life rather than need”); Crabtree v. Goetz, No. 08-cv-0939, 2008 WL 5330506,

26 at *25, (M.D. Tenn. Dec. 19, 2008) (noting plaintiffs’ evidence that the state was “forcing Plaintiffs
27 8 In this case, Defendants could reasonably modify the cost limitations by, for example, seeking
authorization from CMS to increase the limits.
28 5

Case 2:14-cv-08013-FMO-AGR Document 112 Filed 03/29/16 Page 7 of 10 Page ID #:7976

1 into nursing homes without any mechanisms to determine whether their medical needs can be met in the

2 community or the nursing home” and rejecting a “categorical approach”) (emphasis added); DOJ

3 Olmstead Statement at Question 9 (“In making…budget cuts, public entities have a duty to take all

4 reasonable steps to avoid placing individuals at risk of institutionalization”).

5

Here, Defendants admit that they have no written policies or procedures to meet the needs of

6 individuals whose care costs exceed the applicable cost limitation. P93 (Defendants’ response

7 acknowledges “there is no written policy or criteria”). Even assuming that individual supervisors do

8 indeed have the discretion to authorize exceptional levels of care, id., without any demonstration of how

9 the state exercises that discretion, Defendants have not “implement[ed] any means of ensuring” that

10 individuals who need that exceptional care to avoid institututionalization actually receive it. Brantley,

11 656 F. Supp. 2d at 1174 (internal quotations omitted) (emphasis added). And because the funding

12 source for these additional services is not clear in the record,9 it is also unclear whether these exceptions

13 comply with the Waiver. An opaque and unwritten policy, P93, implemented without an effort by

14 Defendants to track its use, P102-103, and triggered for these Plaintiffs only after a year of litigation in

15 federal court, P315, 321-322, does not “ensure” that individuals who require additional care to remain

16 in the community will have the necessary alternative services identified and put in place to avoid

17 unnecessary institutionalization. Brantley, 656 F. Supp. 2d at 1174.

18

C. The Integration Mandate Protects Individuals Currently Receiving

19

Community-Based Services Who are at Serious Risk of Institutionalization

20

Although Defendants suggest that Plaintiffs are not at risk of institutionalization because they

21 are “doing well at home and have received the medically necessary care to remain safely in their

22 homes,” Mot. at 3, the at-risk inquiry is not focused on a plaintiff’s past or immediate circumstances, in

23 isolation, but rather on the ultimate question of the likelihood of a future institutionalization. As the

24 Department of Justice’s regulatory guidance makes clear, a state violates the integration mandate of the

25 9 It is undisputed that Defendants “intend to use state-only dollars to fund Waiver costs over individual 26 cost limits attributable to IHSS and [Waiver Personal Care Services] overtime rather than reduce
services to Waiver participants,” P45. However the record does not specify the funding source for
27 excess services other than overtime costs. P109.

28 6

Case 2:14-cv-08013-FMO-AGR Document 112 Filed 03/29/16 Page 8 of 10 Page ID #:7977

1 ADA “if a public entity’s failure to provide community services or its cut to such services will likely

2 cause a decline in health, safety, or welfare that would lead to the individual’s eventual placement in an

3 institution.” DOJ Olmstead Statement at Question 6 (emphasis added); see also Radaszewski, 383 F.3d

4 at 609 (“A State may violate Title II when it refuses to provide an existing benefit to a disabled person

5 that would enable that individual to live in a more community-integrated setting”).10

6

At times, the inquiry can focus on a plaintiff’s past or current stability in the community. Those

7 circumstances are not dispositive, however. Instead, past circumstances are relevant to the extent they

8 inform the assessment of whether an individual is at serious risk of entering an institution. For instance,

9 in determining that a plaintiff in Cruz was at risk of institutionalization, the Court noted that he had

10 been hospitalized three times in 10 months “either directly or indirectly [as] a result of not receiving

11 adequate in-home health care services.” Cruz, 2010 WL 4284955, at *3.

12

Consistent with this settled law, and with the DOJ Olmstead Statement, courts have frequently

13 intervened when a state’s Medicaid services are insufficient to ensure that individuals would continue

14 to receive services in the most integrated setting appropriate – even when those individuals were “doing

15 well at home” as Defendants allege is the situation for Plaintiffs here. Fisher addressed a decision by

16 Oklahoma to impose a cap of five medically necessary prescriptions on participants receiving

17 community-based care through Oklahoma’s waiver program “while continuing to provide unlimited

18 prescriptions to patients in nursing facilities.” 335 F.3d at 1178-79. Without discussing plaintiffs’

19 then-current medical situation, and agreeing that the new regulation would lead to unnecessary

20 10 See also Davis v. Shah, No. 14-cv-543, slip op. at 70-74 (2d Cir. Mar. 24, 2016); Oster v. 21 Lightbourne, No. 09-cv-4668, 2012 WL 691833, at *16 (N.D. Cal. Mar. 2, 2012) (granting preliminary
relief where “the evidence also shows that Plaintiffs are likely to succeed in demonstrating that the loss
22 of IHSS hours will compromise the health and well-being of IHSS recipients such that they will be at
serious risk of institutionalization”); Peter B. v. Sanford, No. 10-cv-767, 2010 WL 5912259, at *7-8
23 (D.S.C. Nov. 24, 2010) report and recommendation adopted 2011 WL 824584 (Mar. 7, 2011); Cruz,
2010 WL 4284955, at *12-13; G. v. Hawaii, No. 08-cv-551, 2010 WL 3489632, at *9 (D. Haw. Sept.
24 3, 2010) (“A state’s reduction in services may violate the integration mandate where it unjustifiably
forces or will likely force beneficiaries from an integrated environment into institutional care”);
25 Brantley, 656 F. Supp. 2d at 1170-17 (“Plaintiffs have sufficiently demonstrated for purposes of the
instant motion that the proposed reduction in [adult day care] services will place them at serious risk of
26 institutionalization”); V.L., 669 F. Supp. 2d at 1119-20 (“Elderly and disabled individuals with unmet
in-home care needs will likely suffer falls which will lead to hospitalization and subsequent
27 institutionalization”); Grooms, 563 F. Supp. 2d at 850.

28 7

Case 2:14-cv-08013-FMO-AGR Document 112 Filed 03/29/16 Page 9 of 10 Page ID #:7978

1 institutionalization,11 the Tenth Circuit reversed the grant of summary judgment in defendants’ favor,

2 holding that the plaintiffs survived summary judgment by showing that the state did not allow them “to

3 receive services for which they are qualified unless they agree to enter a nursing home.” Id. at 1182. In

4 another case, plaintiffs in V.L. challenged a California law changing eligibility rules for in-home

5 supportive services, passed in response to the state’s budget crisis. Again engaging in a forward-

6 looking inquiry, the court found that plaintiffs would likely succeed on the merits of their ADA claim,

7 because they would “face a severe risk of institutionalization as a result of losing the services that [the

8 new law] would eliminate.” 669 F. Supp. 2d at 1119-20; see also Cota, 688 F. Supp. 2d at 994-995

9 (preliminarily enjoining implementation of new, more restrictive, eligibility criteria for adult day care

10 services).

11

Although the cases described above arose when the state took steps to reduce the medically

12 necessary care it had been providing, a state can violate the ADA even when it maintains the status quo.

13 The plaintiff in Townsend challenged the state of Washington’s Medicaid system, which provided

14 categorically needy12 residents the option of receiving long-term medical care and living assistance

15 either in nursing home settings, their own homes, or adult family homes. 328 F.3d at 514. Medically

16 needy residents were given only one option: nursing homes. Id. The plaintiff had been receiving

17 services in a family home, but when his income increased beyond the threshold established by the state

18 and he became medically needy, he was faced with a choice: “move to a nursing home within 30 days

19 or lose his Medicaid benefits.” Id. at 514. The court did not consider Townsend’s then-current medical

20 situation, except to observe that his success in the community clearly demonstrated the propriety of

21 continuing to receive community-based services. Id. at 516. Instead, the court considered whether
22 11 The Oklahoma defendants argued that, because the plaintiffs stated they would “rather die than be
placed in a nursing home” or would refuse to go to a nursing facility, the plaintiffs could not show any
23 harm and were not entitled to injunctive relief. Id. at 1184. The court rejected this argument, noting
“that they have emphatically stated their desire to remain in the community does not mean that they do
24 not face a substantial risk of harm.” Id. Defendants’ reference in this case to Plaintiffs’ steadfast desire
to remain in the community, D41-42, is similarly misplaced.
25 12 States participating in Medicaid must provide Medicaid coverage to the categorically needy, those 26 with incomes below a certain threshold, and have the option of providing coverage to individuals with
slightly higher incomes: the medically needy. See, e.g., Schweiker v. Hogan, 457 U.S. 569, 572-73
27 (1982); 42 U.S.C. § 1396a(a)(10); 42 C.F.R. § 435.4.

28 8

Case 2:14-cv-08013-FMO-AGR Document 112 Filed 03/29/16 Page 10 of 10 Page ID #:7979

1 Townsend could remain in the community given the state’s policy of limiting community-based

2 services to only the categorically needy – and answered in the negative. Id. at 518. Here, as in

3 Townsend, the question is whether Plaintiffs are at risk of unnecessarily entering an institution by virtue

4 of Defendants’ ad hoc practice regarding cost limitation exceptions.

5

III. CONCLUSION

6

The United States respectfully encourages the Court to assess Plaintiffs’ motion in light of the

7 principles set forth above. The United States will be present and prepared to argue the matters

8 addressed in this Statement of Interest at any hearing regarding Plaintiffs’ motion.

9 10 Dated: March 29, 2016
11 EILEEN M. DECKER
United States Attorney
12

Respectfully submitted,
VANITA GUPTA Principal Deputy Assistant Attorney General Civil Rights Division

13 DOROTHY A. SCHOUTEN

14

Assistant United States Attorney Chief, Civil Division

15

16

17

EVE L. HILL Deputy Assistant Attorney General
STEVEN H. ROSENBAUM Chief, Special Litigation Section
BENJAMIN “BO” TAYLOE Deputy Chief

18 /s/ Robyn-Marie Lyon Monteleone

/s/ Mathew S. Schutzer

19 ROBYN-MARIE LYON MONTELEONE MATHEW S. SCHUTZER

Assistant United States Attorney

Trial Attorney

20 Chief, General Civil Section

21

22

Attorneys for the United States of America

23

24

25

26

27

28 9

 </s> Case 2:14-cv-08013-FMO-AGR Document 198 Filed 09/16/16 Page 1 of 9 Page ID #:29413

VANITA GUPTA 1 Principal Deputy Assistant Attorney General

EVE L. HILL 2 Deputy Assistant Attorney General

STEVEN H. ROSENBAUM 3 Chief, Special Litigation Section

BENJAMIN “BO” TAYLOE 4 Deputy Chief

MATHEW S. SCHUTZER (N.Y. Bar No. 5136007) 5 Trial Attorney

United States Department of Justice, Civil Rights Division 6 Special Litigation Section

950 Pennsylvania Avenue, NW - PHB 7 Washington, DC 20530

Telephone: (202) 616-3179 8 Facsimile: (202) 514-4883

E-mail: Mathew.schutzer@usdoj.gov 9

10

EILEEN M. DECKER United States Attorney

DOROTHY A. SCHOUTEN 11 Assistant United States Attorney

Chief, Civil Division 12 JOANNA HULL (CA State Bar No. 227153)

Assistant United States Attorney 13 Chief, Civil Rights Section

300 North Los Angeles Street, Suite 7516 14 Los Angeles, California 90012

15

Telephone: (213) 894-6585 Facsimile: (213) 894-7819

Email: Joanna.hull@usdoj.gov 16

Attorneys for the United States of America 17

UNITED STATES DISTRICT COURT 18

FOR THE CENTRAL DISTRICT OF CALIFORNIA 19

JERRY THOMAS, by and through his 20 Guardian ad Litem BEVERLY

2:CV14-08013-FMO (AGRx)

THOMAS, SEAN BENISON, and JUAN

21 PALOMARES,

SECOND SUPPLEMENTAL

22

Plaintiffs,

STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA

23

v.

24 JENNIFER KENT, Director of the Department of Health Care Services,
25 State of California DEPARTMENT OF HEALTH CARE SERVICES,
26 Defendants.
27

Date: Time: Courtroom: Judge Trial Date: Action Filed:

October 6, 2016 10:00 a.m. 22 Hon. Fernando M. Olguin November 29, 2016 October 16, 2014

28

Case 2:14-cv-08013-FMO-AGR Document 198 Filed 09/16/16 Page 2 of 9 Page ID #:29414

1

SECOND SUPPLEMENTAL STATEMENT OF INTEREST OF THE

2

UNITED STATES OF AMERICA

3

In connection with the Plaintiffs’ renewed motion for summary judgment, ECF

4 No. 193, the United States hereby incorporates by reference and supplements its

5 Statement of Interest filed on March 29, 2016, ECF No. 112 (“SOI”), and its

6 Supplemental Statement of Interest filed on August 4, 2016. ECF No. 171

7 (“Supplemental SOI”).

8

In this case, Plaintiffs argue that Defendants have imposed cost limits on the

9 operative Waiver “significantly below what [Defendants] pay[] for comparable

10 institutional care,” have only an “arbitrar[y]” policy for making exceptions to those

11 limits, and consequently violate Title II of the Americans with Disabilities Act, 42

12 U.S.C. § 12101 et seq. Jt. Mem. Mot. Summ. J. 1:21-2:1, ECF No. 194. In its SOI, the

13 United States observed that California’s operation of these limits and exceptions

14 processes would not meet the State’s obligations under the ADA if the State did not

15 otherwise “ensure that individuals who require additional care to remain in the

16 community will have the necessary alternative services identified and put in place to

17 avoid unnecessary institutionalization.” SOI at 6 (internal quotations omitted).

18

In the months since Plaintiffs first moved for summary judgment and the

19 United States filed its SOI, Defendants have taken some steps to modify the applicable

20 cost limits. The United States noted in its Supplemental SOI that such steps in and of

21 themselves might not bring the Defendants into ADA compliance. Supplemental SOI at

22 2. Defendants now contend, among other arguments, that this Court should not examine

23 the waiver at issue because where “there is evidence that [the] state has in place a

24 comprehensive deinstitutionalization scheme, which, in light of existing budgetary

25 constraints and competing demands of other services that the State provides, is

26 ‘effectively working,’ courts should not tinker with that scheme.” Jt. Mem. Mot. Summ.

27 J. 12:12-25 (citing Sanchez v. Johnson, 416 F.3d 1051, 1067-68 (9th Cir. 2015)). But

28 1

Case 2:14-cv-08013-FMO-AGR Document 198 Filed 09/16/16 Page 3 of 9 Page ID #:29415

1 Defendants have proffered little evidence of an effectively working plan that addresses

2 the risk of institutionalization in this case and have misinterpreted the relevant law. To

3 be sure, Sanchez did affirm that a court should not impose a judicial remedy against an

4 ADA violation if doing so would inappropriately interrupt a comprehensive, effectively

5 working, plan for deinstitutionalization – i.e. a fundamental alteration defense.

6 However, neither Sanchez nor other case law insulates a defendant from judicial scrutiny

7 of the Waiver identified as the basis for that defense. To the contrary, courts frequently

8 examine states’ Medicaid programs, including waiver programs, to determine whether

9 the state’s administration of its programs unnecessarily institutionalizes individuals or

10 places individuals at risk of unnecessary institutionalization. See, e.g., Steimel v.

11 Wernert, 823 F.3d 902 (7th Cir. 2016) (examining Title II ADA claim related to waiver

12 eligibility requirements); Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003) (examining

13 financial eligibility for waiver services); Fisher v. Okla. Health Care Auth., 335 F.3d

14 1175 (10th Cir. 2003) (examining availability of certain services through a waiver).

15 Accordingly, in this Second Supplemental Statement of Interest the United States

16 clarifies the scope of the fundamental alteration defense and the burden a state must meet

17 in order to successfully assert that defense.

18

The Supreme Court has articulated the fundamental alteration defense to mean

19 that a public entity need not make an otherwise reasonable modification to its service

20 system if it establishes that to do so would be “inequitable, given the responsibility the

21 State has taken for the care and treatment of a large and diverse population of persons

22 with [] disabilities.” Olmstead v L.C., 527 U.S. 581, 604 (1999); see also 28 C.F.R. §

23 35.130(b)(7) (“A public entity shall make reasonable modifications in policies, practices,

24 or procedures when the modifications are necessary to avoid discrimination on the basis

25 of disability, unless the public entity can demonstrate that making the modifications

26 would fundamentally alter the nature of the service, program, or activity.”).

27

However, the defense’s availability is limited. For instance, it cannot be used by

28 2

Case 2:14-cv-08013-FMO-AGR Document 198 Filed 09/16/16 Page 4 of 9 Page ID #:29416

1 public entities generally seeking to avoid making changes which foster integration. See,

2 e.g., Pa Protection & Advocacy Inc. v. Pa Dep’t of Pub. Welfare, 402 F.3d 374, 380-381

3 (3d Cir. 2005) (“a state cannot meet an allegation of noncompliance simply by replying

4 that compliance would be too costly or would otherwise fundamentally alter its

5 noncomplying programs”); Townsend, 328 F.3d at 518-19 (“policy choices that isolate

6 the disabled cannot be upheld solely because offering integrated services would change

7 the segregated way in which existing services are provided”). Nor is the defense

8 available to public entities pointing solely to increased expenditures or general budget

9 concerns. Fisher, 335 F.3d at 1182-83 (“the fact that Oklahoma has a fiscal problem, by

10 itself, does not lead to an automatic conclusion that preservation of unlimited medically

11 necessary prescription benefits for participants in the Advantage program will result in a

12 fundamental alteration”).

13

Further, a public entity asserting the affirmative defense1 must demonstrate that it

14 has a “comprehensive, effectively working plan for placing qualified persons with []

15 disabilities in less restrictive settings, and a waiting list that move[s] at a reasonable pace

16 not controlled by the State’s endeavors to keep its institutions fully populated.”

17 Frederick L. I, 364 F.3d at 498 (quoting Olmstead, 527 U.S. at 605-06). The Third

18 Circuit has stressed the importance of a State’s demonstration that it has a “plan for the

19 future.” Id. at 500. This plan must do more than reflect past progress but rather must

20 clearly demonstrate a commitment to future action. Id. Furthermore, this commitment

21 must not be “a vague assurance of the individual patient’s future deinstitutionalization”

22 and should instead contain “measurable goals for community integration for which [the

23 defendant] may be held accountable.” Frederick L. v. Pa Dep’t of Pub. Welfare, 422

24 F.3d 151, 156 (3d Cir. 2005) (Frederick L. II); see also Day v. Dist. of Columbia, 894 F.

25 Supp. 2d 1, 28 (D.D.C. 2012) (“one essential component of an ‘effectively working’ plan

26

27

1 Defendants bear the burden of proving a fundamental alteration defense.

Frederick L. v. Pa Dep’t of Pub. Welfare, 364 F.3d 487, 492, n.4 (3d Cir. 2004)

28 (Frederick L. I).

3

Case 2:14-cv-08013-FMO-AGR Document 198 Filed 09/16/16 Page 5 of 9 Page ID #:29417

1 is a measurable commitment to deinstitutionalization”) (citing U.S. Dep’t of Justice,

2 Statement of the Department of Justice on Enforcement of the Integration Mandate of

3 Title II of the Americans with Disabilities Act and Olmstead v. L.C. n.4 (June 22, 2011),

4 http://www.ada.gov/olmstead/q&a_olmstead.htm (the “DOJ Olmstead Statement”));

5 Jensen v. Minn. Dep’t of Human Servs., No. 09-1775, 2014 WL 4670898, at *2 (D.

6 Minn. Sept. 18, 2014) (Olmstead plan “must contain concrete, reliable and realistic

7 commitments, accompanied by specific and reasonable timetables, for which the public

8 agencies will be held accountable.”). If there is an effectively working plan with the

9 requisite components, the court should examine whether the proposed remedy “would so

10 disrupt the implementation of the plan as to cause a fundamental alteration.” DOJ

11 Olmstead Statement at Question 13; Benjamin v. Pa Dep’t of Pub. Welfare, 768 F. Supp.

12 2d 747, 755 (M.D. Pa. 2011) (“the existence of the Plan does not, however,

13 automatically defeat liability”).

14

In determining whether an effectively working plan exists, courts have regularly

15 rejected purported plans which did not meet these rigorous criteria. Cruz v. Dudek, No.

16 10-23048, 2010 WL 4284955 (S.D. Fla. Oct. 12, 2010) challenged Florida’s waiver for

17 individuals with spinal cord injuries. The plaintiffs there were on the waiting list for that

18 waiver and could only gain admission to the waiver off of the lengthy and slow-moving

19 wait list by entering a nursing facility for at least two months. Id. at *13. The court

20 rejected the argument that the state had an effectively working plan. The court noted

21 that defendants in that case had not shown that the waiver at issue had “been expanded

22 or adjusted to reduce the lengthy waiting list, or that there [was] a basis for not seeking

23 such an expansion.” Id. at *14. In addition, the waiver was not operating at authorized

24 capacity, and the State had not proffered information about “the average amount of time

25 on the waiting list, the rate of turnover, or when, if ever Plaintiffs can expect to move off

26 the waiting list.” Id. at *15. Given this stagnation, the court held the state had not

27 shown they had a “plan or commitment to avoid unnecessary” institutionalization. Id.

28 4

Case 2:14-cv-08013-FMO-AGR Document 198 Filed 09/16/16 Page 6 of 9 Page ID #:29418

1 In Haddad v. Arnold, 784 F. Supp. 2d 1284, 1305-06 (M.D. Fla. 2010), another

2 challenge to the spinal cord waiver, Florida pointed to the fact that some of its waivers,

3 though not the spinal cord waiver, had “increased in size and expenditure.” Id. But

4 evidence related to other waivers did not demonstrate the “effectiveness” of the spinal

5 cord waiver. Id. The court found the state’s effectively working plan arguments

6 particularly weak because the state did not proffer evidence that its institutionalized

7 population had declined, and because the state’s own representation to the plaintiffs was

8 that “moving individuals off the waiting list into these programs does not occur

9 frequently.” Id.; see also Benjamin, 768 F. Supp. 2d at 756 (“Considering the absence of

10 concrete benchmarks for deinstitutionalization in the contingency-ridden Plan, no record

11 of actual implementation of the Plan, and a history of unnecessary segregation of and

12 discrimination against institutionalized persons, we cannot conclude that [defendant] has

13 complied with or will comply with the integration mandates of the ADA and

14 [Rehabilitation Act].”).

15

The Ninth Circuit similarly demands a measurable commitment to

16 deinstitutionalization. In Sanchez the court affirmed the District Court’s finding that

17 California’s “commitment to [] deinstitutionalization…[was] genuine, comprehensive,

18 and reasonable.” 416 F.3d at 1067. This finding had been based on a number of factors,

19 which included: increased expenditures on community-based services, an increased

20 caseload of individuals served in community-based settings, a decrease in institutional

21 populations, and budget allocations for additional community-based settings. Id.; see

22 also Arc of Washington State Inc. v. Braddock, 427 F.3d 615, 620 (9th Cir. 2005) (“the

23 state had repeatedly applied for an increase in the size of the waiver program, state

24 expenditures for integrated community-based treatment had consistently increased over

25 the prior decade, and the state’s institutionalized population had decreased by twenty

26 percent over the prior four years.”).

27

Relying on Sanchez, the court in Arc of Washington held that compelling the state

28 5

Case 2:14-cv-08013-FMO-AGR Document 198 Filed 09/16/16 Page 7 of 9 Page ID #:29419

1 to increase the number of individuals served on a particular waiver would be a

2 fundamental alteration under the facts of that case: the waiver was “sizeable, with a cap

3 that ha[d] increased substantially over the past two decades;” was “full;” was “available

4 to all Medicaid-eligible disabled persons as slots bec[a]me available, based only on their

5 mental-health needs and position on the waiting list;” had “already significantly reduced

6 the size of the state’s institutionalized population;” and had “experienced budget growth

7 in line with, or exceeding, other state agencies.” 427 F.3d at 621-22.

8

Defendants assert they have an effectively working plan to deinstitutionalize

9 Californians with disabilities, but do not explain how the existence of such a plan is

10 relevant here, where the Plaintiffs claim they are placed at risk of institutionalization by

11 the very operation of that plan. Assuming that the existence of such a plan is relevant, it

12 is Defendants’ burden to demonstrate the existence of a comprehensive, effectively

13 working plan that reflects a genuine and reasonable commitment to community

14 integration of individuals with disabilities. In support of this burden, the Defendants

15 have pointed to a single fact: that the NF/AH Waiver at issue serves 3,084 beneficiaries,

16 with 439 in intake status.2 Jt. Mem. Mot. Summ. J. 12:20-23. This fact, alone,3 cannot

17 demonstrate a “genuine, comprehensive, and reasonable” commitment to

18

19

2 Defendants also vaguely allude to “competing budgetary restraints.” Jt. Mem.

Mot. Summ. J. 12:21. As discussed supra, budgetary constraints alone are not sufficient

20 evidence that requested relief is a fundamental alteration. DOJ Olmstead Statement at

Question 14; see also Frederick L. I, 364 F.3d at 495 (“a singular focus upon a state’s

21 short-term fiscal constraints will not suffice to establish a fundamental-alteration

defense” (citing Fisher, 335 F.3d at 1177-78)). Although budgetary constraints may be

22 one of many relevant factors, specific cost concerns must be brought to the Court’s

attention in order for that factor to have meaning. Cf., Sanchez, 416 F.3d at 1063 (noting

23 district court’s finding that relief “would represent a forty percent increase in the State’s

budget for developmentally disabled services.”).

24

3 For context, as of 2012 there were more than 200 1915(c) waivers serving more

25 than 1 million individuals around the country. The Kaiser Commission on Medicaid and

the Uninsured, Medicaid Home and Community-Based Services Programs: 2012 Update

26 7-8 (November 2015), http://files.kff.org/attachment/report-medicaid-home-and-

community-based-services-programs-2012-data-update. However, the existence of those

27 waivers and the number of individuals receiving services through those waivers does not,

without more, shed light on whether states have effectively deinstitutionalized

28 individuals with disabilities.

6

Case 2:14-cv-08013-FMO-AGR Document 198 Filed 09/16/16 Page 8 of 9 Page ID #:29420

1 deinstitutionalization, and the record is virtually silent on any plans for the future. See

2 Sanchez, 416 F.3d at 1067; Frederick L. I, 364 F.3d at 500. The NF/AH Waiver is an

3 aspect of California’s broader plan to promote deinstitutionalization and integration, to

4 be sure. Jt. Statement of Uncontroverted Facts P27, ECF No. 195 (undisputed that “the

5 NF/AH waiver is one of the things in California’s Olmstead plan”). But, in pointing

6 only to the number of individuals served on that Waiver, Defendants have not

7 demonstrated how the existence of the Waiver is part of an effectively working plan to

8 reduce Plaintiffs’ risk of institutionalization. Defendants’ showing is particularly

9 insufficient here, where Plaintiffs argue that the cost limitations contained within this

10 purportedly effective plan are the very mechanism placing them at risk of

11 institutionalization. Cf. Steimel, 823 F.3d at 917 (state could not assert fundamental

12 alteration defense because “instead of moving people with disabilities to more integrated

13 settings, the state’s plan is making their living arrangements less integrated”) (emphasis

14 in original).

15

The United States encourages the Court to assess Plaintiffs’ motion in light of the

16 principles set forth above and those set forth in its SOI and Supplemental SOI.

17

18

19

20

21

22

23

24

25

26

27

28 7

Case 2:14-cv-08013-FMO-AGR Document 198 Filed 09/16/16 Page 9 of 9 Page ID #:29421

1 Dated: September 16, 2016 2
EILEEN M. DECKER 3 United States Attorney 4 5 DOROTHY A. SCHOUTEN 6 Assistant United States Attorney
Chief, Civil Division 7 8 9 10 11 /s/ Joanna Hull 12 JOANNA HULL
Assistant United States Attorney 13 Chief, Civil Rights Section 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted, VANITA GUPTA Principal Deputy Assistant Attorney General Civil Rights Division EVE L. HILL Deputy Assistant Attorney General STEVEN H. ROSENBAUM Chief, Special Litigation Section BENJAMIN “BO” TAYLOE Deputy Chief /s/ Mathew S. Schutzer MATHEW S. SCHUTZER Trial Attorney
Attorneys for the United States of America
8

 </s> Alerts not yet Supported for this Docket

(AGRx),CLOSED,DISCOVERY,PROTORD

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Western Division - Los Angeles)
CIVIL DOCKET FOR CASE #: 2:14-cv-08013-FMO-AGR

Jerry Thomas et al v. Toby Douglas et al Assigned to: Judge Fernando M. Olguin Referred to: Magistrate Judge Alicia G. Rosenberg Cause: 42:12101 Americans With Disabilities Act

Date Filed: 10/16/2014 Date Terminated: 03/19/2018 Jury Demand: Defendant Nature of Suit: 446 Civil Rights: Americans with Disabilities - Other Jurisdiction: Federal Question

Plaintiff
Jerry Thomas by and through his guardian ad litem B.T.

represented by Betsy Ellen Havens Disability Rights California 350 South Bixel Street Suite 290 Los Angeles, CA 90017 213-213-8000 Fax: 213-213-8001 Email: Betsy.Havens@disabilityrightsca.org TERMINATED: 09/20/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elissa Staci Gershon Disability Rights California 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

Maria F Iriarte Disability Rights California 1111 Sixth Avenue Suite 200 San Diego, CA 92101 619-239-7861 Fax: 619-239-7906

Email: maria.iriarte@disabilityrightsca.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marilyn L Holle Disability Rights California 350 South Bixel Street Suite 290 Los Angeles, CA 90017 213-213-8000 Fax: 213-213-8001 Email: marilyn.holle@disabilityrightsca.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
R Mona Tawatao Western Center on Law and Poverty 3701 Wilshire Boulevard Suite 208 Los Angeles, CA 90010 916-442-0753 Fax: 916-442-7966 Email: mtawatao@wclp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sue L Himmelrich Western Center on Law and Poverty 3701 Wilshire Blvd Suite 208 Los Angeles, CA 90010 213-235-2622 Fax: 213-487-0242 Email: shimmelrich@wclp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anne Hadreas Disability Rights California 350 South Bixel Street Suite 290 Los Angeles, CA 90017 213-213-8000 Fax: 213-213-8001 Email: anne.hadreas@disabilityrightsca.org ATTORNEY TO BE NOTICED

Plaintiff
Arthur Congdon TERMINATED: 07/07/2015

Deborah D Gettleman Disability Rights California 1330 Broadway, Suite 500 Oakland, CA 94612-2505 213-213-8000 Fax: 213-213-8001 Email: deborah.gettleman@disabilityrightsca.org ATTORNEY TO BE NOTICED
Monisha Ann Coelho Disability Rights California 350 S. Bixel Street, Suite 290 Los Angeles, CA 90017 213-213-8000 Fax: 213-213-8001 Email: mcoelho@kalaralaw.com TERMINATED: 03/23/2015
Robert D Newman , Jr Robert Newman Law Offices 3701 Wilshire Boulevard Suite 208 Los Angeles, CA 90010-2809 213-487-7211 Fax: 213-487-0242 Email: rnewman@wclp.org ATTORNEY TO BE NOTICED
represented by Betsy Ellen Havens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elissa Staci Gershon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maria F Iriarte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marilyn L Holle (See above for address)

Plaintiff Sean Benison

LEAD ATTORNEY ATTORNEY TO BE NOTICED
R Mona Tawatao (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sue L Himmelrich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anne Hadreas (See above for address) ATTORNEY TO BE NOTICED
Deborah D Gettleman (See above for address) ATTORNEY TO BE NOTICED
Monisha Ann Coelho (See above for address) TERMINATED: 03/23/2015
Robert D Newman , Jr (See above for address) ATTORNEY TO BE NOTICED
represented by Betsy Ellen Havens (See above for address) TERMINATED: 09/20/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elissa Staci Gershon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maria F Iriarte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
In Spirit TERMINATED: 09/23/2015

Marilyn L Holle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
R Mona Tawatao (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sue L Himmelrich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anne Hadreas (See above for address) ATTORNEY TO BE NOTICED
Deborah D Gettleman (See above for address) ATTORNEY TO BE NOTICED
Monisha Ann Coelho (See above for address) TERMINATED: 03/23/2015
Robert D Newman , Jr (See above for address) ATTORNEY TO BE NOTICED
represented by Betsy Ellen Havens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elissa Staci Gershon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marilyn L Holle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Juan Palomares

R Mona Tawatao (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sue L Himmelrich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anne Hadreas (See above for address) ATTORNEY TO BE NOTICED
Deborah D Gettleman (See above for address) ATTORNEY TO BE NOTICED
Monisha Ann Coelho (See above for address)
Robert D Newman , Jr (See above for address) ATTORNEY TO BE NOTICED
represented by Betsy Ellen Havens (See above for address) TERMINATED: 09/20/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elissa Staci Gershon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marilyn L Holle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anne Hadreas (See above for address) ATTORNEY TO BE NOTICED

Deborah D Gettleman (See above for address) ATTORNEY TO BE NOTICED
Sue L Himmelrich (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Toby Douglas Director of the Department of Health Care Services TERMINATED: 01/29/2015

Defendant
State of California Department of Health Care Services

represented by Jennifer M Kim CAAG - Office of CA Attorney General California Department of Justice 300 South Spring Street Suite 1702 Los Angeles, CA 90012 213-897-2443 Fax: 213-897-2805 Email: jennifer.kim@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth Kai-Chun Wang CAAG - Office of the Attorney General 300 South Spring Street Suite 1702 Los Angeles, CA 90013 213-269-6217 Fax: 213-897-2805 Email: kenneth.wang@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Thomas Guitar CAAG - Office of the Attorney General California Department of Justice 300 South Spring Street Suite 1702 Los Angeles, CA 90013 213-891-2105

Defendant Jennifer Kent Director of the Department of Health Care Services
Interested Party United States of America United States of America
V. Mediator (ADR Panel)

Fax: 213-897-2805 Email: michael.guitar@doj.ca.gov TERMINATED: 06/13/2017
represented by Jennifer M Kim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kenneth Kai-Chun Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Thomas Guitar (See above for address) TERMINATED: 06/13/2017
represented by Mathew S Schutzer US Department of Justice Civil Rights Division - Special Litigation Section 950 Pennsylvania Avenue PHB Washington, DC 20530 202-616-3179 Email: mathew.schutzer@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joanna Berney Hull AUSA - Office of the US Attorney 300 North Los Angeles Street Room 7516 Los Angeles, CA 90012 213-894-6585 Fax: 213-894-7819 Email: joanna.hull@usdoj.gov TERMINATED: 04/16/2018 ATTORNEY TO BE NOTICED

Michael G Balmages

Date Filed 10/16/2014 10/16/2014
10/16/2014 10/16/2014 10/23/2014
10/23/2014 10/23/2014 10/23/2014 10/27/2014

# Docket Text
LODGED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF forwarded to DUTY Magistrate Judge Jacqueline Chooljian. Complaint sought to be filed by Plaintiffs Sean Benison, Arthur Congdon, Jerry Thomas. (et) (Entered: 10/21/2014)
1 PLAINTIFFS EX PARTE APPLICATION for Appointment of Thomas Jerry as Guardian ad Litem for B.T. filed by Plaintiffs Sean Benison, Arthur Congdon, Jerry Thomas. Lodged Proposed Order. (Attachments: # 1 Lodged Complaint and Civil Cover Sheet, # 2 Lodged Memorandum, # 3 Lodged Notice of Pendency of Other Action or Proceedings). (et) (Entered: 10/21/2014)
2 MEMORANDUM OF POINTS AND AUTHORITIES in Support of Appointment of Thomas Jerry as Guardian ad Litem for B.T. 1 filed by Plaintiffs Sean Benison, Arthur Congdon, Jerry Thomas. (et) (Entered: 10/21/2014)
3 ORDER by Magistrate Judge Jacqueline Chooljian: Granting 1 Application to Appoint Guardian ad Litem. Appointing Jerry Thomasas Guardian ad Litem for B.T. (et) (Entered: 10/24/2014)
4 COMPLAINT against Defendants Department of Health Care Services, Toby Douglas. Case assigned to Judge Fernando M. Olguin for all further proceedings. Discovery referred to Magistrate Judge Alicia G. Rosenberg. (Filing fee $ 400 PAID.), filed by Plaintiffs Jerry Thomas, Arthur Congdon, Sean Benison. (et) [Summons not Issued on 10/23/14]. (rn). (Entered: 10/24/2014)
5 CERTIFICATION AND NOTICE of Interested Parties filed by Plaintiffs Sean Benison, Arthur Congdon, Jerry Thomas. (et) (rn). (Entered: 10/24/2014)
6 NOTICE OF PENDENCY OF OTHER ACTION OR PROCEEDINGS filed by Plaintiffs Sean Benison, Arthur Congdon, Jerry Thomas. (et) (rn). (Entered: 10/24/2014)
7 NOTICE OF ASSIGNMENT to District Judge Fernando M. Olguin and Magistrate Judge Alicia G. Rosenberg. (et) (Entered: 10/24/2014)
8 TEXT ONLY ENTRY by Chambers of Judge Fernando M. Olguin. This matter has been assigned to District Judge Fernando M. Olguin. All pleadings filed in this matter should contain the case number and

10/29/2014 11/20/2014 11/20/2014 11/20/2014

the assigned judges' initials to ensure proper routing of documents. The Court refers counsel to the Court's Initial Standing Order found on the Court's Website under Judge Olguin's Procedures and Schedules. Please read this Order carefully. Judge Olguin is a participant of the Central District of California's pilot project for submission and e-filing of under seal documents. Please refer to the judges' procedures and schedules page on the court's website for detailed instructions for submission of sealed documents. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (vdr) TEXT ONLY ENTRY (Entered: 10/27/2014)
9 TEXT ONLY ENTRY: Magistrate Judge Alicia G. Rosenberg is participating in a pilot project regarding the submission of SEALED DOCUMENTS. Effective July 8, 2013, all proposed sealed documents pertaining to discovery matters referred to the magistrate judge must be submitted via e-mail to the Judges Chambers email address at AGR_Chambers@cacd.uscourts.gov. Please refer to the judges procedures and schedules for detailed instructions for submission of sealed documents. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (mp) TEXT ONLY ENTRY (Entered: 10/29/2014)
10 [THIS DOCUMENT IS HEREBY STRICKEN BY ORDER OF THE COURT 13 ] - APPLICATION for Leave to Proceed In Forma Pauperis filed by plaintiff Jerry Thomas. (Attachments: # 1 Declaration Declaration of Elissa Gershon RE Request to Proceed in Forma Pauperis, # 2 Exhibit A - Jerry Thomas IFP Application, # 3 Exhibit B Arthur Congdon IFP Application, # 4 Exhibit C - Sean Benison IFP Application, # 5 Exhibit D - Declaration of Beverly Thomas, # 6 Exhibit E - Declaration of Jennifer Knight)(Coelho, Monisha) Modified on 11/25/2014 (jp). (Entered: 11/20/2014)
11 [THIS DOCUMENT IS HEREBY STRICKEN BY ORDER OF THE COURT 13 ] - APPLICATION for Leave to Proceed In Forma Pauperis filed by plaintiff Arthur Congdon. (Attachments: # 1 Declaration Declaration of Elissa Gershon RE Request to Proceed in Forma Pauperis, # 2 Exhibit A - Jerry Thomas IFP Application, # 3 Exhibit B - Arthur Congdon IFP Application, # 4 Exhibit C - Sean Benison IFP Application, # 5 Exhibit D - Declaration of Beverly Thomas, # 6 Exhibit E - Declaration of Jennifer Knight)(Coelho, Monisha) Modified on 11/25/2014 (jp). (Entered: 11/20/2014)
12 [THIS DOCUMENT IS HEREBY STRICKEN BY ORDER OF THE COURT 13 ] - APPLICATION for Leave to Proceed In Forma Pauperis filed by plaintiff Sean Benison. (Attachments: # 1 Declaration Declaration of Elissa Gershon RE Request to Proceed in Forma

11/25/2014
11/26/2014 11/26/2014 11/26/2014 11/26/2014 11/26/2014 11/26/2014 12/09/2014
12/16/2014

Pauperis, # 2 Exhibit A - Jerry Thomas IFP Application, # 3 Exhibit B Arthur Congdon IFP Application, # 4 Exhibit C - Sean Benison IFP Application, # 5 Exhibit D - Declaration of Beverly Thomas, # 6 Exhibit E - Declaration of Jennifer Knight)(Coelho, Monisha) Modified on 11/25/2014 (jp). (Entered: 11/20/2014)
13 ORDER TO STRIKE ELECTRONICALLY FILED DOCUMENT(S) by Judge Fernando M. Olguin: the following document(s) be STRICKEN for failure to comply with the Local Rules, General Order and/or the Courts Case Management Order: APPLICATION for Leave to Proceed In Forma Pauperis 10 , APPLICATION for Leave to Proceed In Forma Pauperis [11, APPLICATION for Leave to Proceed In Forma Pauperis 12 for the following reasons: Counsel may not electronically file Applications for Leave to Proceed in Forma Pauperis. (jp) (Entered: 11/25/2014)
14 REQUEST TO PROCEED IN FORMA PAUPERIS filed by Plaintiff Jerry Thomas. (kl) (Entered: 12/02/2014)
15 DECLARATION OF ELISSA GERSHON RE REQUEST TO PROCEED IN FORMA PAUPERIS 14 filed by Plaintiff Jerry Thomas. (kl) (Entered: 12/02/2014)
16 REQUEST TO PROCEED IN FORMA PAUPERIS filed by Plaintiff Arthur Congdon. (kl) (Entered: 12/02/2014)
17 DECLARATION OF ELISSA GERSHON RE REQUEST TO PROCEED IN FORMA PAUPERIS 16 filed by Plaintiff Arthur Congdon. (kl) (Entered: 12/02/2014)
18 REQUEST TO PROCEED IN FORMA PAUPERIS filed by Plaintiff Sean Benison. (kl) (Entered: 12/02/2014)
19 DECLARATION OF ELISSA GERSHON RE REQUEST TO PROCEED IN FORMA PAUPERIS 18 filed by Plaintiff Sean Benison. (kl) (Entered: 12/02/2014)
20 TEXT ONLY ENTRY by Chambers of Judge Fernando M. Olguin. The pending Request to Proceed in Forma Pauperis 14 , 16 and 18 are hereby referred to Magistrate Judge Rosenberg for ruling. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (vdr) TEXT ONLY ENTRY (Entered: 12/09/2014)
22 MINUTE ORDER IN CHAMBERS by Magistrate Judge Alicia G. Rosenberg: re: Request for Leave to Proceed In Forma Pauperis 14 , Request for Leave to Proceed In Forma Pauperis 18 , Request for Leave to Proceed In Forma Pauperis 16 . RECOMMENDATIONS RE

12/17/2014 12/18/2014 01/28/2015 01/28/2015 01/29/2015 01/29/2015
01/30/2015 02/02/2015

REQUESTS FOR IN FORMA PAUPERIS STATUS. On November 26, 2014, Plaintiffs filed separate requests to proceed in forma pauperis ("IFP Requests" or "IFP Request"). Based on the above, the court recommends that the IFP Requests for Congdon and Benison be granted. The court recommends that the IFP Request for Thomas be denied. Thomas and his wife's income and assets do not entitle Plaintiff to IFP status. (See Order for details.) (mp) (Entered: 12/18/2014)
PROPOSED MINUTE ORDER RE REQUESTS FOR IN FORMA PAUPERIS STATUS 14 , 16 , 18 forwarded to the District Judge for review and approval.(mp) (Entered: 12/17/2014)
21 NOTICE OF CLERICAL ERROR re Text Only Entry - Proposed Minute Order Re Requests For In Forma Pauperis Status. Due to clerical error the docket entry was made erroneously. (mp) (Entered: 12/18/2014)
23 Amended NOTICE of Interested Parties filed by Plaintiff All Plaintiffs, identifying Jerry Thomas, Arthur Congdon, Sean Benison, IN SPIRIT. (Havens, Betsy) (Entered: 01/28/2015)
24 Request for Clerk to Issue Summons on Notice (Other) 6 , Complaint (Discovery), 4 , Certificate/Notice of Interested Parties 23 filed by Plaintiff Sean Benison, Arthur Congdon, Jerry Thomas. (Havens, Betsy) (Entered: 01/28/2015)
25 2nd Amended CERTIFICATE of Interested Parties filed by Plaintiff All Plaintiffs, (Attachments: # 1 Supplement List of Interested Parties)(Havens, Betsy) (Entered: 01/29/2015)
26 FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AMENDED COMPLAINT against Defendant All Defendants amending Complaint - (Discovery), 4 , filed by Plaintiff Jerry Thomas, Arthur Congdon, Sean Benison (Gershon, Elissa) (Entered: 01/29/2015)
27 21 DAY Summons Issued re First Amended Complaint 26 as to Defendants Jennifer Kent, State of California Department of Health Care Services. (jp) (Entered: 01/30/2015)
28 MINUTES (IN CHAMBERS) Order Re: Requests for In Forma Pauperis Status by Judge Fernando M. Olguin: Based on the foregoing, IT IS ORDERED THAT plaintiffs' Requests to Proceed in Forma Pauperis (Document Nos. 14 , 16 & 18 ) are DENIED. (jp) (Entered: 02/02/2015)

02/12/2015 02/12/2015 02/12/2015 02/20/2015 02/23/2015 02/27/2015 02/27/2015

29 PROOF OF SERVICE Executed by Plaintiff Jerry Thomas, Arthur Congdon, Sean Benison, upon Defendant State of California Department of Health Care Services served on 2/2/2015, answer due 2/23/2015. Service of the Summons and Complaint were executed upon Elizabeth Geiger, Legal Analyst in compliance with Federal Rules of Civil Procedure by personal service. Original Summons NOT returned. (Havens, Betsy) (Entered: 02/12/2015)
30 PROOF OF SERVICE filed by Plaintiff Sean Benison, Arthur Congdon, Jerry Thomas, served on 02/06/2015. (Havens, Betsy) (Entered: 02/12/2015)
31 PROOF OF SERVICE Executed by Plaintiff Jerry Thomas, Arthur Congdon, Sean Benison, upon Defendant Jennifer Kent served on 2/9/2015, answer due 3/2/2015. Service of the Summons and Complaint were executed upon Ben Doyle, Legal Analyst in compliance with Federal Rules of Civil Procedure by personal service. Original Summons NOT returned. (Havens, Betsy) (Entered: 02/12/2015)
32 STIPULATION for Extension of Time to File Responsive Pleading as to Amended Complaint/Petition 26 filed by Defendant Jennifer Kent, State of California Department of Health Care Services. (Attachments: # 1 Proposed Order)(Attorney Kenneth Kai-Chun Wang added to party Jennifer Kent(pty:dft), Attorney Kenneth Kai-Chun Wang added to party State of California Department of Health Care Services(pty:dft))(Wang, Kenneth) (Entered: 02/20/2015)
33 ORDER EXTENDING THE TIME FOR THE FILING OF THE RESPONSIVE PLEADING by Judge Fernando M. Olguin, re Stipulation 32 . Defendant California Department of Health Care Services may respond to the First Amended Complaint by 3/2/2015. (vdr) (Entered: 02/23/2015)
34 STIPULATION Extending Time to Answer the complaint as to Jennifer Kent answer now due 3/23/2015; State of California Department of Health Care Services answer now due 3/23/2015, re Amended Complaint/Petition 26 filed by Defendants Jennifer Kent; State of California Department of Health Care Services. (Attachments: # 1 Proposed Order)(Wang, Kenneth) (Entered: 02/27/2015)
35 ORDER EXTENDING TIME FOR DEFENDANTS' ANSWERS TO THE FIRST AMENDED COMPLAINT by Judge Fernando M. Olguin, re Stipulation 34 . Defendants California Department of Health Care Services and Director Jennifer Kent are to answer the First Amended Complaint by 3/23/2015. (vdr) (Entered: 02/27/2015)

03/12/2015 03/23/2015 03/23/2015 03/24/2015
04/02/2015 04/03/2015 04/09/2015 04/13/2015
04/13/2015

36 ORDER SETTING SCHEDULING CONFERENCE by Judge Fernando M. Olguin. Scheduling Conference set for 4/16/2015 at 10:00 AM before Judge Fernando M. Olguin; Rule 26 Meeting Report due by 4/2/2015. (vdr) (Entered: 03/12/2015)
37 ANSWER to Amended Complaint/Petition 26 filed by Defendants Jennifer Kent, State of California Department of Health Care Services.(Wang, Kenneth) (Entered: 03/23/2015)
38 (Attorney Anne Hadreas added to party Sean Benison(pty:pla), Attorney Anne Hadreas added to party Arthur Congdon(pty:pla), Attorney Anne Hadreas added to party Jerry Thomas(pty:pla))(Hadreas, Anne) (Entered: 03/23/2015)
39 Notice of Appearance or Withdrawal of Counsel: for attorney Elissa Staci Gershon counsel for Plaintiffs Sean Benison, Arthur Congdon, Jerry Thomas. Monisha A. Coelho is no longer attorney of record for the aforementioned party in this case for the reason indicated in the G123 Notice. Filed by Plaintiff Jerry Thomas, Arthur Congdon, Sean Benison, and In Spirit. (Gershon, Elissa) (Entered: 03/24/2015)
40 JOINT REPORT Rule 26(f) Discovery Plan ; estimated length of trial 14 days, filed by Plaintiffs Sean Benison, Arthur Congdon, In Spirit, Jerry Thomas.. (Gershon, Elissa) (Entered: 04/02/2015)
41 REQUEST for ADR Procedure No. 2 filled. Parties request to appear before a neutral selected from the court's Mediation Panel for mediation. Filed by Plaintiffs Sean Benison, Arthur Congdon, In Spirit, Jerry Thomas(Gershon, Elissa) (Entered: 04/03/2015)
42 STIPULATION for Extension of Time to File Motion to Strike Defendant's Answer filed by Plaintiff Sean Benison, Arthur Congdon, In Spirit, Jerry Thomas. (Attachments: # 1 Proposed Order)(Gershon, Elissa) (Entered: 04/09/2015)
43 ORDER EXTENDING TIME FOR PLAINTIFFS' MOTION TO STRIKE DEFENDANTS' ANSWERS (FRCP 12(F)) 42 by Judge Fernando M. Olguin. The April 13, 2015 date for the filing of Plaintiffs' Motion to Strike Defendants' Answer, in whole or in part, is continued through and including May 13, 2015. IT IS SO ORDERED. (jloz) (Entered: 04/13/2015)
44 SCHEDULING AND CASE MANAGEMENT ORDER RE: JURY TRIAL by Judge Fernando M. Olguin. The court deems a Scheduling Conference unnecessary and hereby vacates the hearing. Jury Trial set for 4/26/2016 at 8:30 AM; Final Pretrial Conference/Motions in Limine

04/13/2015 04/15/2015 04/20/2015
04/24/2015 05/04/2015 05/05/2015 06/11/2015
06/12/2015

set for 4/8/2016 at 10:00 AM before Judge Fernando M. Olguin. *See order for deadlines and requirements set.* (vdr) (Entered: 04/13/2015)
45 ORDER RE: SUMMARY JUDGMENT MOTIONS by Judge Fernando M. Olguin. (vdr) (Entered: 04/13/2015)
46 STIPULATION for Extension of Time to File Prop Order re ESI filed by Plaintiffs Sean Benison, Arthur Congdon, In Spirit, Jerry Thomas. (Attachments: # 1 Proposed Order Prop Order Granting Ext. of Time)(Gershon, Elissa) (Entered: 04/15/2015)
47 ORDER EXTENDING TIME FOR PARTIES PROPOSED ORDER CONCERNING ELECTRONICALLY STORED INFORMATION by Magistrate Judge Alicia G. Rosenberg, re Stipulation for Extension of Time to File 46 . Good cause having been shown in the Parties' stipulation to extend time for the parties to submit to this Court a proposed order concerning production of Electronically Stored Information, the Court hereby orders as follows: The April 15, 2015 date for the filing of the parties' proposed order concerning production of Electronically Stored Information is continued through and including May 1, 2015. IT IS SO ORDERED. (mp) (Entered: 04/20/2015)
48 AMENDED ANSWER to Amended Complaint/Petition 26 filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Wang, Kenneth) (Entered: 04/24/2015)
49 STIPULATION for Order Re Joint Stipulation re Discovery of Electronically Stored Information filed by Plaintiff Sean Benison, Arthur Congdon, In Spirit, Jerry Thomas.(Gershon, Elissa) (Entered: 05/04/2015)
50 ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION by Magistrate Judge Alicia G. Rosenberg re Stipulation for Order 49 . IT IS ORDERED that the forgoing Agreement is approved. (See Order for details.) (mp) (Entered: 05/06/2015)
51 First NOTICE of Appearance filed by attorney Deborah D Gettleman on behalf of Plaintiffs Sean Benison, Arthur Congdon, In Spirit, Jerry Thomas (Attorney Deborah D Gettleman added to party Sean Benison(pty:pla), Attorney Deborah D Gettleman added to party Arthur Congdon(pty:pla), Attorney Deborah D Gettleman added to party In Spirit(pty:pla), Attorney Deborah D Gettleman added to party Jerry Thomas(pty:pla))(Gettleman, Deborah) (Entered: 06/11/2015)
52 NOTICE OF MOTION AND First MOTION to AMEND THE PLEADINGS filed by Plaintiffs Sean Benison, Arthur Congdon, In

06/12/2015 06/12/2015
06/12/2015 06/12/2015
06/12/2015 06/12/2015
06/15/2015

Spirit, Jerry Thomas. Motion set for hearing on 7/16/2015 at 10:00 AM before Judge Fernando M. Olguin. (Attachments: # 1 Exhibit Proposed Second Amended Complaint)(Attorney Anne Hadreas added to party In Spirit(pty:pla))(Hadreas, Anne) (Entered: 06/12/2015)
53 DECLARATION of ELISSA GERSHON IN SUPPORT OF First MOTION to AMEND THE PLEADINGS 52 filed by Plaintiffs Sean Benison, Arthur Congdon, In Spirit, Jerry Thomas. (Attachments: # 1 Exhibit A: Redlined Complaint, # 2 Exhibit B: Chart Explaining Changes)(Hadreas, Anne) (Entered: 06/12/2015)
54 NOTICE OF MOTION AND First MOTION to AMEND THE PLEADINGS filed by PLAINTIFFS Sean Benison, Arthur Congdon, In Spirit, Jerry Thomas. Motion set for hearing on 7/16/2015 at 10:00 AM before Judge Fernando M. Olguin. (Attachments: # 1 Exhibit [PROPOSED] SECOND AMENDED COMPLAINT, # 2 Proposed Order [PROPOSED] ORDER GRANTING LEAVE TO AMEND)(Hadreas, Anne) (Entered: 06/12/2015)
55 NOTICE OF ERRATA filed by Plaintiffs Sean Benison, Arthur Congdon, In Spirit, Jerry Thomas. correcting First MOTION to AMEND THE PLEADINGS 52 (Hadreas, Anne) (Entered: 06/12/2015)
56 NOTICE OF MOTION AND First MOTION to AMEND THE PLEADINGS filed by PLAINTIFFS Sean Benison, Arthur Congdon, In Spirit, Jerry Thomas. Motion set for hearing on 7/16/2015 at 10:00 AM before Judge Fernando M. Olguin. (Attachments: # 1 Exhibit A: SECOND AMENDED COMPLAINT, # 2 Proposed Order GRANTING PLAINTIFFS LEAVE TO AMEND PLEADINGS)(Hadreas, Anne) (Entered: 06/12/2015)
57 NOTICE OF ERRATA filed by Plaintiffs Sean Benison, Arthur Congdon, In Spirit, Jerry Thomas. correcting First MOTION to AMEND THE PLEADINGS 56 TO REPLACE ECF NOS. 52 & 54 (Hadreas, Anne) (Entered: 06/12/2015)
58 STIPULATION for Extension of Time to File STIPULATION REGARDING SELECTION OF PANEL MEDIATOR filed by Plaintiff Sean Benison, Arthur Congdon, In Spirit, Jerry Thomas. (Attachments: # 1 Proposed Order [PROPOSED] ORDER EXTENDING THE TIME FOR THE FILING OF THE STIPULATION REGARDING SELECTION OF PANEL MEDIATOR)(Havens, Betsy) (Entered: 06/12/2015)
59 ORDER by Judge Fernando M. Olguin: The Stipulation for Extension of Time to File ADR Selection 58 is GRANTED. The 6/2/2015 date for the filing of the stipulation regarding selection of the panel mediator is

06/17/2015 06/17/2015
06/17/2015 06/19/2015 06/25/2015 06/26/2015

continued through and including 6/19/2015. IT IS SO ORDERED. (cw) (Entered: 06/15/2015)
60 Notice of Appearance or Withdrawal of Counsel: for attorney Robert D Newman, Jr counsel for Plaintiff Jerry Thomas. Adding Robert D. Newman as counsel of record for Jerry Thomas, by and through Guardian Ad Litem Beverly Thomas, Arthur Congdon, Sean Benison, and In Spirit for the reason indicated in the G-123 Notice. Filed by NOTICE OF APPEARANCE OR WITHDRAWAL OF COUNSEL Robert D. Newman. (Attorney Robert D Newman, Jr added to party Jerry Thomas(pty:pla))(Newman, Robert) (Entered: 06/17/2015)
61 Notice of Appearance or Withdrawal of Counsel: for attorney Robert D Newman, Jr counsel for Plaintiffs Sean Benison, Arthur Congdon, In Spirit, Jerry Thomas. Adding Mona Tawatao as counsel of record for Jerry Thomas, by and through Guardian Ad Litem Beverly Thomas, Arthur Congdon, Sean Benison, and In Spirit for the reason indicated in the G-123 Notice. Filed by NOTICE OF APPEARANCE OR WITHDRAWAL OF COUNSEL Mona Tawatao. (Attorney Robert D Newman, Jr added to party Sean Benison(pty:pla), Attorney Robert D Newman, Jr added to party Arthur Congdon(pty:pla), Attorney Robert D Newman, Jr added to party In Spirit(pty:pla))(Newman, Robert) (Entered: 06/17/2015)
62 Notice of Appearance or Withdrawal of Counsel: for attorney Robert D Newman, Jr counsel for Plaintiffs Sean Benison, Arthur Congdon, In Spirit, Jerry Thomas. Adding Sue Himmelrich as counsel of record for Jerry Thomas, by and through Guardian Ad Litem Beverly Thomas, Arthur Congdon, Sean Benison, and In Spirit for the reason indicated in the G-123 Notice. Filed by NOTICE OF APPEARANCE OR WITHDRAWAL OF COUNSEL Sue Himmelrich. (Newman, Robert) (Entered: 06/17/2015)
63 STIPULATION REGARDING SELECTION of Panel Mediator filed. Parties stipulate that Michael Balmages may serve as Panel Mediator. Plaintiff obtained the Panel Mediators consent to serve. Filed by Plaintiffs Sean Benison, Arthur Congdon, In Spirit, Jerry Thomas(Gershon, Elissa) (Entered: 06/19/2015)
64 OPPOSITION to First MOTION to AMEND THE PLEADINGS 56 filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Wang, Kenneth) (Entered: 06/25/2015)
65 NOTICE OF ASSIGNMENT of Panel Mediator. Mediator (ADR Panel) Michael Balmages has been assigned to serve as Panel Mediator. (mb) (Entered: 06/26/2015)

07/02/2015 07/02/2015 07/02/2015 07/06/2015 07/07/2015 07/21/2015 08/14/2015 08/14/2015 08/14/2015

66 REPLY REPLY IN SUPPORT OF MOTION First MOTION to AMEND THE PLEADINGS 56 filed by Plaintiffs Sean Benison, Arthur Congdon, In Spirit, Jerry Thomas. (Hadreas, Anne) (Entered: 07/02/2015)
67 DECLARATION of MARILYN HOLLE IN SUPPORT OF REPLY TO OPPOSITION OF First MOTION to AMEND THE PLEADINGS 56 filed by Plaintiffs Sean Benison, Arthur Congdon, In Spirit, Jerry Thomas. (Hadreas, Anne) (Entered: 07/02/2015)
68 DECLARATION of ROBERT D. NEWMAN IN SUPPORT OF REPLY TO OPPOSITION OF First MOTION to AMEND THE PLEADINGS 56 filed by Plaintiffs Sean Benison, Arthur Congdon, In Spirit, Jerry Thomas. (Hadreas, Anne) (Entered: 07/02/2015)
69 ORDER by Judge Fernando M. Olguin, granting MOTION 56 to Amend. Plaintiffs shall file a Second Amended Complaint no later than two court days from the filing of this Order. Defendants shall file an Answer by 7/21/2015. (vdr) (Entered: 07/06/2015)
70 SECOND AMENDED COMPLAINT against DEFENDANTS Jennifer Kent, State of California Department of Health Care Services amending Amended Complaint/Petition 26 , filed by PLAINTIFFS Jerry Thomas, In Spirit, Sean Benison (Gershon, Elissa) (Entered: 07/07/2015)
71 ANSWER to Amended Complaint/Petition 70 Answer to the Second Amended Complaint filed by Defendants Jennifer Kent, State of California Department of Health Care Services.(Wang, Kenneth) (Entered: 07/21/2015)
72 NOTICE OF MOTION AND First MOTION for Protective Order for PLAINTIFFS' MEDICAL RECORDS filed by PLAINTIFFS Sean Benison, In Spirit, Juan Palomares, Jerry Thomas. Motion set for hearing on 9/8/2015 at 10:00 AM before Magistrate Judge Alicia G. Rosenberg. (Hadreas, Anne) (Entered: 08/14/2015)
73 JOINT STIPULATION to First MOTION for Protective Order for PLAINTIFFS' MEDICAL RECORDS 72 filed by Plaintiffs Sean Benison, In Spirit, Juan Palomares, Jerry Thomas. (Attachments: # 1 Proposed Order)(Hadreas, Anne) (Entered: 08/14/2015)
74 DECLARATION of ANNE HADREAS IN SUPPORT OF First MOTION for Protective Order for PLAINTIFFS' MEDICAL RECORDS 72 filed by Plaintiffs Sean Benison, In Spirit, Juan Palomares, Jerry Thomas. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Hadreas, Anne) (Entered: 08/14/2015)

08/14/2015 08/18/2015 08/24/2015 08/24/2015 09/01/2015
09/02/2015 09/03/2015

75 DECLARATION of KENNETH WANG REGARDING First MOTION for Protective Order for PLAINTIFFS' MEDICAL RECORDS 72 filed by Plaintiffs Sean Benison, In Spirit, Juan Palomares, Jerry Thomas. (Hadreas, Anne) (Entered: 08/14/2015)
76 Notice of Appearance or Withdrawal of Counsel: for attorney Michael Thomas Guitar counsel for Defendant Jennifer Kent. Adding Michael Thomas Guitar as counsel of record for Jennifer Kent; Department of Health Care Services for the reason indicated in the G-123 Notice. Filed by defendant Jennifer Kent; Department of Health Care Services. (Attorney Michael Thomas Guitar added to party Jennifer Kent(pty:dft))(Guitar, Michael) (Entered: 08/18/2015)
77 SUPPLEMENT to First MOTION for Protective Order for PLAINTIFFS' MEDICAL RECORDS 72 filed by Plaintiffs Sean Benison, In Spirit, Juan Palomares, Jerry Thomas. (Hadreas, Anne) (Entered: 08/24/2015)
78 REQUEST FOR JUDICIAL NOTICE re First MOTION for Protective Order for PLAINTIFFS' MEDICAL RECORDS 72 filed by Plaintiffs Sean Benison, In Spirit, Juan Palomares, Jerry Thomas. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Hadreas, Anne) (Entered: 08/24/2015)
79 First EX PARTE APPLICATION for Leave to File Supplemental Briefing and an Order Continuing the Hearing on Plaintiffs' Motion for a Protective Oder or, in the Alternative, Strike Plaintiffs' Supplemental Brief filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Attachments: # 1 Memorandum Memorandum in Support of Ex Parte Application for Leave to File Supplemental Briefing, # 2 Proposed Order Proposed Order in Support of Ex Parte Application, # 3 Declaration Declaration in Support of Ex Parte Application)(Guitar, Michael) (Entered: 09/01/2015)
80 OPPOSITION to First EX PARTE APPLICATION for Leave to File Supplemental Briefing and an Order Continuing the Hearing on Plaintiffs' Motion for a Protective Oder or, in the Alternative, Strike Plaintiffs' Supplemental Brief 79 filed by Plaintiffs Sean Benison, In Spirit, Juan Palomares, Jerry Thomas. (Attachments: # 1 Declaration, # 2 Proposed Order)(Hadreas, Anne) (Entered: 09/02/2015)
81 MINUTES (IN CHAMBERS) by Magistrate Judge Alicia G. Rosenberg: denying 79 Ex Parte Application for Leave. DEFENDANTS' EX PARTE APPLICATION FOR LEAVE TO FILE SUPPLEMENTAL BRIEFING AND AN ORDER CONTINUING THE HEARING ON PLAINTIFF'S MOTION FOR A PROTECTIVE ORDER. Defendants' ex parte application for leave to file supplemental

09/08/2015
09/16/2015 09/17/2015 09/17/2015
09/22/2015 09/23/2015 09/24/2015

briefing is DENIED WITHOUT PREJUDICE. The court will consider requests for additional briefing at oral argument. Defendants' request to continue the hearing is DENIED. Defendants' alternative motion to strike Plaintiffs' supplemental brief is DENIED. (mp) (Entered: 09/03/2015)
82 MINUTES OF Discovery Hearing held before Magistrate Judge Alicia G. Rosenberg. PLAINTIFFS' MOTION FOR PROTECTIVE ORDER 72 . On August 14, 2015, Plaintiffs filed a motion for a qualified protective order. (Dkt. No. 72.) On August 24, 2015, Plaintiffs filed a supplemental memorandum and request for judicial notice. (Dkt. Nos. 77-78.) The Court questions counsel and hears oral arguments as reflected on the record. Unless otherwise ordered, the Court takes the matter under submission. Court Recorder: CS 9/8/2015. (mp) (Entered: 09/09/2015)
83 Joint STIPULATION to Extend Discovery Cut-Off Date to November 16, 2015 filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Attachments: # 1 Proposed Order)(Wang, Kenneth) (Entered: 09/16/2015)
84 ORDER RE: STIPULATION 83 by Judge Fernando M. Olguin. The deadline to complete all fact discovery is continued to 11/16/2015. (vdr) (Entered: 09/17/2015)
85 MINUTES (IN CHAMBERS)by Magistrate Judge Alicia G. Rosenberg: denying 72 Motion for Protective Order. PLAINTIFF'S MOTION FOR QUALIFIED PROTECTIVE ORDER. IT IS HEREBY ORDERED that Plaintiffs' motion for protective order is DENIED. The parties are ordered to submit a proposed protective order that permits use of confidential medical information for issues related to a plaintiff's receipt of NF/AH waiver services. (See Order for details.) (mp) (Entered: 09/17/2015)
86 Joint STIPULATION to Dismiss Plaintiff In Spirit filed by Plaintiff In Spirit. (Attachments: # 1 Proposed Order Re Dismissal of Plaintiff IN SPIRIT)(Gettleman, Deborah) (Entered: 09/22/2015)
87 ORDER GRANTING VOLUNTARY DISMISSAL OF PLAINTIFF IN SPIRIT by Judge Fernando M. Olguin, re Stipulation 86 . (vdr) (Entered: 09/23/2015)
88 Joint STIPULATION for Protective Order filed by PLAINTIFFS Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Proposed Order)(Hadreas, Anne) (Entered: 09/24/2015)

09/25/2015
10/23/2015
10/27/2015 11/24/2015 11/30/2015 01/12/2016 02/12/2016 02/16/2016 03/07/2016

89 PROTECTIVE ORDER CONCERNING DISCLOSURE OF INFORMATION FOR NAMED PLAINTIFFS by Magistrate Judge Alicia G. Rosenberg re Stipulation for Protective Order 88 . Following stipulation between counsel of record for the parties that good cause exists for a protective order, pursuant to 45 C.F.R. Section 164.512 and Local Rule 7-1; and good cause having been shown; IT SO ORDERED with the changes made by the court on the attached order. ***** SEE CHANGES MADE BY THE COURT. **** (mp) (Entered: 09/25/2015)
90 Joint STIPULATION to Continue the Trial Date and the Final Status Conference and to Extend the Pre-Trial Deadlines from FSC: 4/08/16; Trial 4/26/16 to FSC: 5/06/16; Trial 5/31/16 filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Attachments: # 1 Proposed Order)(Wang, Kenneth) (Entered: 10/23/2015)
91 ORDER RE: STIPULATION 90 by Judge Fernando M. Olguin. Jury Trial is continued to 5/31/2016 at 8:15 AM before Judge Fernando M. Olguin. *See order for other continued dates/deadlines.* (vdr) (Entered: 10/27/2015)
92 Joint STIPULATION to Extend Discovery Cut-Off Date to 1-21-2016 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Proposed Order)(Gershon, Elissa) (Entered: 11/24/2015)
93 ORDER RE: STIPULATION 92 by Judge Fernando M. Olguin. (vdr) (Entered: 11/30/2015)
94 MEDIATION REPORT Filed by Mediator (ADR Panel) Michael Balmages: Mediation held on August 25, 2015. The parties are unable to reach an agreement at this time.(Killefer, Gail) (Entered: 01/12/2016)
95 Joint STIPULATION for Extension of Time to File Dispositive Motion filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Proposed Order)(Gershon, Elissa) (Entered: 02/12/2016)
96 ORDER RE: STIPULATION 95 by Judge Fernando M. Olguin. Jury Trial continued to 7/12/2016 at 8:15 AM before Judge Fernando M. Olguin. *See order for continued deadlines.* (vdr) (Entered: 02/16/2016)
97 APPLICATION to file document Attachments to MSJ under seal filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Exhibit Protective Order, # 2 Redacted Document

03/07/2016

Attachment 51, # 3 Redacted Document Attachment 52, # 4 Redacted Document Attachment 55, # 5 Redacted Document Attachment 60, # 6 Redacted Document Attachment 61, # 7 Redacted Document Attachment 100, # 8 Redacted Document Attachment 101, # 9 Redacted Document Attachment 102, # 10 Redacted Document Attachment 103, # 11 Redacted Document Attachment 103-B, # 12 Proposed Order Proposed Order)(Havens, Betsy) (Entered: 03/07/2016)
98 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document Attachments to MSJ under seal 97 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Unredacted Document Attachment 1, # 2 Unredacted Document Attachment 2, # 3 Unredacted Document Attachment 3, # 4 Unredacted Document Attachment 4, # 5 Unredacted Document Attachment 5, # 6 Unredacted Document Attachment 6, # 7 Unredacted Document Attachment 7, # 8 Unredacted Document Attachment 8, # 9 Unredacted Document Attachment 9, # 10 Unredacted Document Attachment 10, # 11 Unredacted Document Attachment 11, # 12 Unredacted Document Attachment 12, # 13 Unredacted Document Attachment 13, # 14 Unredacted Document Attachment 14, # 15 Unredacted Document Attachment 15, # 16 Unredacted Document Attachment 16, # 17 Unredacted Document Attachment 17, # 18 Unredacted Document Attachment 18, # 19 Unredacted Document Attachment 19, # 20 Unredacted Document Attachment 20, # 21 Unredacted Document Attachment 21, # 22 Unredacted Document Attachment 22, # 23 Unredacted Document Attachment 23, # 24 Unredacted Document Attachment 24, # 25 Unredacted Document Attachment 25, # 26 Unredacted Document Attachment 26, # 27 Unredacted Document Attachment 27, # 28 Unredacted Document Attachment 28, # 29 Unredacted Document Attachment 29, # 30 Unredacted Document Attachment 30, # 31 Unredacted Document Attachment 31, # 32 Unredacted Document Attachment 32, # 33 Unredacted Document Attachment 33, # 34 Unredacted Document Attachment 34, # 35 Unredacted Document Attachment 35, # 36 Unredacted Document Attachment 36, # 37 Unredacted Document Attachment 37, # 38 Unredacted Document Attachment 38, # 39 Unredacted Document Attachment 39, # 40 Unredacted Document Attachment 40, # 41 Unredacted Document Attachment 41, # 42 Unredacted Document Attachment 42, # 43 Unredacted Document Attachment 43, # 44 Unredacted Document Attachment 44, # 45 Unredacted Document Attachment 44-A, # 46 Unredacted Document Attachment 44-B, # 47 Unredacted Document Attachment 45, # 48 Unredacted Document Attachment 46, # 49 Unredacted Document Attachment 47, # 50 Unredacted Document Attachment 48, # 51 Unredacted Document

Attachment 49, # 52 Unredacted Document Attachment 50)(Havens, Betsy) (Entered: 03/07/2016)

03/08/2016

99 NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction filed by Defendants Jennifer Kent, State of California Department of Health Care Services. Motion set for hearing on 4/14/2016 at 10:00 AM before Judge Fernando M. Olguin. (Attachments: # 1 Declaration of Rebecca Schupp, # 2 Exhibit Part 1, # 3 Exhibit Part 2, # 4 Exhibit Part 3, # 5 Exhibit Part 4, # 6 Exhibit Part 5) (Wang, Kenneth) (Entered: 03/08/2016)

03/10/2016

100 NOTICE OF MOTION AND MOTION for Summary Judgment MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR AN ORDER TREATING SPECIFIED FACTS AS ESTABLISHED filed by Plaintiff Sean Benison, Juan Palomares, Jerry Thomas. Motion set for hearing on 4/14/2016 at 10:00 AM before Judge Fernando M. Olguin. (Attachments: # 1 Proposed Order Proposed Order, # 2 Proposed Judgment) (Gershon, Elissa) (Entered: 03/10/2016)

03/10/2016

101 MEMORANDUM in Support of NOTICE OF MOTION AND MOTION for Summary Judgment MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR AN ORDER TREATING SPECIFIED FACTS AS ESTABLISHED 100 PARTIES JOINT MEMORANDUM OF POINTS AND AUTHORITIES RE: PLAINTIFFS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR AN ORDER TREATING SPECIFIED FACTS AS ESTABLISHED; AND DEFENDANTS OPPOSITION THERETO filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Gershon, Elissa) (Entered: 03/10/2016)

03/10/2016

102 JOINT STATEMENT of UNCONTROVERTED FACTS NOTICE OF MOTION AND MOTION for Summary Judgment MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR AN ORDER TREATING SPECIFIED FACTS AS ESTABLISHED 100 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Gershon, Elissa) (Entered: 03/10/2016)

03/10/2016

103 DECLARATION NOTICE OF MOTION AND MOTION for Summary Judgment MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR AN ORDER TREATING SPECIFIED FACTS AS

ESTABLISHED 100 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Table of Contents of Evidentiary Appendix, # 2 Exhibit Attachment 1 of Evidentiary Appendix, # 3 Exhibit Attachment 2 of Evidentiary Appendix, # 4 Exhibit Attachment 3 of Evidentiary Appendix, # 5 Exhibit Attachment 4 of Evidentiary Appendix, # 6 Exhibit Attachment 5 of Evidentiary Appendix, # 7 Exhibit Attachment 6 of Evidentiary Appendix, # 8 Exhibit Attachment 7 of Evidentiary Appendix, # 9 Exhibit Attachment 8 of Evidentiary Appendix, # 10 Exhibit Attachment 9 of Evidentiary Appendix, # 11 Exhibit Attachment 10 of Evidentiary Appendix, # 12 Exhibit Attachment 11 of Evidentiary Appendix, # 13 Exhibit Attachment 12 of Evidentiary Appendix, # 14 Exhibit Attachment 13 of Evidentiary Appendix, # 15 Exhibit Attachment 14 of Evidentiary Appendix, # 16 Exhibit Attachment 15 of Evidentiary Appendix, # 17 Exhibit Attachment 16 of Evidentiary Appendix, # 18 Exhibit Attachment 17 of Evidentiary Appendix, # 19 Exhibit Attachment 18 of Evidentiary Appendix, # 20 Exhibit Attachment 19 of Evidentiary Appendix, # 21 Exhibit Attachment 20 of Evidentiary Appendix, # 22 Exhibit Attachment 21 of Evidentiary Appendix, # 23 Exhibit Attachment 22 of Evidentiary Appendix, # 24 Exhibit Attachment 23 of Evidentiary Appendix, # 25 Exhibit Attachment 24 of Evidentiary Appendix, # 26 Exhibit Attachment 25 of Evidentiary Appendix, # 27 Exhibit Attachment 26 of Evidentiary Appendix, # 28 Exhibit Attachment 27 of Evidentiary Appendix, # 29 Exhibit Attachment 28 of Evidentiary Appendix, # 30 Exhibit Attachment 29 of Evidentiary Appendix, # 31 Exhibit Attachment 30 of Evidentiary Appendix, # 32 Exhibit Attachment 31 of Evidentiary Appendix, # 33 Exhibit Attachment 32 of Evidentiary Appendix, # 34 Exhibit Attachment 33 of Evidentiary Appendix, # 35 Exhibit Attachment 34 of Evidentiary Appendix, # 36 Exhibit Attachment 35 of Evidentiary Appendix, # 37 Exhibit Attachment 36 of Evidentiary Appendix, # 38 Exhibit Attachment 37 of Evidentiary Appendix, # 39 Exhibit Attachment 38 of Evidentiary Appendix, # 40 Exhibit Attachment 39 of Evidentiary Appendix, # 41 Exhibit Attachment 40 of Evidentiary Appendix, # 42 Exhibit Attachment 41 of Evidentiary Appendix, # 43 Exhibit Attachment 42 of Evidentiary Appendix, # 44 Exhibit Attachment 43 of Evidentiary Appendix, # 45 Exhibit Attachment 44 of Evidentiary Appendix, # 46 Exhibit Attachment 44A of Evidentiary Appendix, # 47 Exhibit Attachment 44B of Evidentiary Appendix, # 48 Exhibit Attachment 45 of Evidentiary Appendix, # 49 Exhibit Attachment 45.5 of Evidentiary Appendix, # 50 Exhibit Attachment 46 of Evidentiary Appendix, # 51 Exhibit Attachment 47 of Evidentiary Appendix, # 52 Exhibit Attachment 48 of Evidentiary Appendix, # 53 Exhibit Attachment 49 of Evidentiary Appendix, # 54 Exhibit Attachment 50 of Evidentiary Appendix, # 55 Exhibit Attachment 51 of Evidentiary Appendix, # 56 Exhibit Attachment 52 of Evidentiary

Appendix, # 57 Exhibit Attachment 53 of Evidentiary Appendix, # 58 Exhibit Attachment 54 of Evidentiary Appendix, # 59 Exhibit Attachment 55 of Evidentiary Appendix, # 60 Exhibit Attachment 56 of Evidentiary Appendix, # 61 Exhibit Attachment 57 of Evidentiary Appendix, # 62 Exhibit Attachment 58 of Evidentiary Appendix, # 63 Exhibit Attachment 59 of Evidentiary Appendix, # 64 Exhibit Attachment 60 of Evidentiary Appendix, # 65 Exhibit Attachment 61 of Evidentiary Appendix, # 66 Exhibit Attachment 62 of Evidentiary Appendix, # 67 Exhibit Attachment 63 of Evidentiary Appendix, # 68 Exhibit Attachment 64 of Evidentiary Appendix, # 69 Exhibit Attachment 65 of Evidentiary Appendix, # 70 Exhibit Attachment 66 of Evidentiary Appendix, # 71 Exhibit Attachment 67 of Evidentiary Appendix, # 72 Exhibit Attachment 68 of Evidentiary Appendix, # 73 Exhibit Attachment 69 of Evidentiary Appendix, # 74 Exhibit Attachment 70 of Evidentiary Appendix, # 75 Exhibit Attachment 71 of Evidentiary Appendix, # 76 Exhibit Attachment 72 of Evidentiary Appendix, # 77 Exhibit Attachment 73 of Evidentiary Appendix, # 78 Exhibit Attachment 74 of Evidentiary Appendix, # 79 Exhibit Attachment 75 of Evidentiary Appendix, # 80 Exhibit Attachment 76 of Evidentiary Appendix, # 81 Exhibit Attachment 77 of Evidentiary Appendix, # 82 Exhibit Attachment 78 of Evidentiary Appendix, # 83 Exhibit Attachment 79 of Evidentiary Appendix, # 84 Exhibit Attachment 80 of Evidentiary Appendix, # 85 Exhibit Attachment 81 of Evidentiary Appendix, # 86 Exhibit Attachment 82 of Evidentiary Appendix, # 87 Exhibit Attachment 83 of Evidentiary Appendix, # 88 Exhibit Attachment 84 of Evidentiary Appendix, # 89 Exhibit Attachment 85 of Evidentiary Appendix, # 90 Exhibit Attachment 86 of Evidentiary Appendix, # 91 Exhibit Attachment 87 of Evidentiary Appendix, # 92 Exhibit Attachment 88 of Evidentiary Appendix, # 93 Exhibit Attachment 89 of Evidentiary Appendix, # 94 Exhibit Attachment 90 of Evidentiary Appendix, # 95 Exhibit Attachment 91 of Evidentiary Appendix, # 96 Exhibit Attachment 92 of Evidentiary Appendix, # 97 Exhibit Attachment 93 of Evidentiary Appendix, # 98 Exhibit Attachment 94 of Evidentiary Appendix, # 99 Exhibit Attachment 95 of Evidentiary Appendix, # 100 Exhibit Attachment 96 of Evidentiary Appendix, # 101 Exhibit Attachment 97 of Evidentiary Appendix, # 102 Exhibit Attachment 98 of Evidentiary Appendix, # 103 Exhibit Attachment 99 of Evidentiary Appendix, # 104 Exhibit Attachment 100 of Evidentiary Appendix, # 105 Exhibit Attachment 101 of Evidentiary Appendix, # 106 Exhibit Attachment 102 of Evidentiary Appendix, # 107 Exhibit Attachment 103 of Evidentiary Appendix, # 108 Exhibit Attachment 103B of Evidentiary Appendix, # 109 Exhibit Attachment 104 of Evidentiary Appendix, # 110 Exhibit Attachment 105 of Evidentiary Appendix, # 111 Exhibit Attachment 106 of Evidentiary Appendix, # 112 Exhibit Attachment 107 of Evidentiary Appendix, # 113 Exhibit Attachment 108 of Evidentiary

Appendix, # 114 Exhibit Attachment 109 of Evidentiary Appendix, # 115 Exhibit Attachment 110 of Evidentiary Appendix, # 116 Exhibit Attachment 111 of Evidentiary Appendix, # 117 Exhibit Attachment 112 of Evidentiary Appendix, # 118 Exhibit Attachment 113 of Evidentiary Appendix, # 119 Exhibit Attachment 114 of Evidentiary Appendix, # 120 Exhibit Attachment 115 of Evidentiary Appendix, # 121 Exhibit Attachment 116 of Evidentiary Appendix, # 122 Exhibit Attachment 117 of Evidentiary Appendix, # 123 Exhibit Attachment 118 of Evidentiary Appendix, # 124 Exhibit Attachment 119 of Evidentiary Appendix, # 125 Exhibit Attachment 120 of Evidentiary Appendix, # 126 Exhibit Attachment 121 of Evidentiary Appendix, # 127 Exhibit Attachment 122 of Evidentiary Appendix, # 128 Exhibit Attachment 123 of Evidentiary Appendix, # 129 Exhibit Attachment 124 of Evidentiary Appendix, # 130 Exhibit Attachment 125 of Evidentiary Appendix, # 131 Exhibit Attachment 126 of Evidentiary Appendix, # 132 Exhibit Attachment 127 of Evidentiary Appendix, # 133 Exhibit Attachment 128 of Evidentiary Appendix, # 134 Exhibit Attachment 129 of Evidentiary Appendix, # 135 Exhibit Attachment 130 of Evidentiary Appendix, # 136 Exhibit Attachment 131 of Evidentiary Appendix, # 137 Exhibit Attachment 132 of Evidentiary Appendix, # 138 Exhibit Attachment 133 of Evidentiary Appendix)(Gershon, Elissa) (Entered: 03/10/2016)

03/10/2016

104 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents Re: Memorandum in Support of Motion for Summary Judgment 101 . The following error was found: Memorandum exceeds 25 pages which does not comply with L.R. 11-6, or Paragraph 6 of the Order Re: Summary Judgment Motions issued by Judge Fernando M. Olguin at Docket 45 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (cw) (Entered: 03/11/2016)

03/11/2016

105 NOTICE Notice of Payment of Deposition Costs from the Transcript Reimbursement Fund filed by Plaintiffs Sean Benison, Arthur Congdon, In Spirit, Juan Palomares, Jerry Thomas. (Newman, Robert) (Entered: 03/11/2016)

03/15/2016

106 MINUTES (IN CHAMBERS) RE: APPLICATION 97 TO FILE UNDER SEAL by Judge Fernando M. Olguin. The application is denied without prejudice. (vdr) (Entered: 03/15/2016)

03/18/2016

107 APPLICATION to file document Attachments to MSJ under seal filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Memorandum Memo of Points And Authorities,

# 2 Proposed Order, # 3 Exhibit Attachment A: Protective Order, # 4 Exhibit Attachment B: Chart of Redacted Documents, # 5 Redacted Document Att. 051 Ash Depo Excerpts REDACTED, # 6 Redacted Document Att. 052 Baker Depo Excerpts REDACTED, # 7 Redacted Document Att. 055 Greenwood Depo Excerpts REDACTED, # 8 Redacted Document Att. 060 Solano Depo Excerpts REDACTED, # 9 Redacted Document Att. 061 Thomas Depo Excerpts REDACTED, # 10 Redacted Document Att. 100 Dec. of Sean Benison REDACTED, # 11 Redacted Document Att. 101 Decl. of Juan Palomares REDACTED, # 12 Redacted Document Att. 102 Decl. of Beverly Thomas REDACTED, # 13 Redacted Document Att. 103 Decl. of Linda Oleson REDACTED, # 14 Redacted Document Att. 103-B Exhibit B to Oleson Decl. ISO MSJ 2-4-16 REDACTED, # 15 Redacted Document Att. 104 Schupp Decl. REDACTED, # 16 Redacted Document Att. 134 Campwala Depo Excerpts REDACT, # 17 Redacted Document Att. 135 Dhamija Depo Excerpts Vol 2 1-2816 REDACT, # 18 Redacted Document Att. 136 Pls Exhibit 52 Dhamija Thomas Report 12-3-15 REDACT, # 19 Redacted Document Att. 137 Defs Exhibit 69 Kripke Expert Report 11-30-15 REDACT, # 20 Redacted Document Att. 138 Pls Exhibit 70 Dhamija rebuttal expert report 12-28-15 REDACT, # 21 Redacted Document Att. 139 Defs Amended Designation of Rebuttal Expert Witness REDACT, # 22 Redacted Document Att. 140 Pls. Ex 30 (Baker) Palomares DHCS Adopted Decision DHCS2645-2657 REDACT, # 23 Redacted Document Att. 141 Valcarenghi Decl and Exhibits REDACTED, # 24 Redacted Document Att. 142 Thomas Hearing Decision 2015.01.30 JT-002309-002323 REDACT, # 25 Redacted Document Att. 143 Palomares, E Affadavit re IHSS 2014.04.02 JP-001026-1028 REDACT, # 26 Redacted Document Att. 144 Palomares, E Affadavit re IHSS 2007.10.04 JP-000922)(Havens, Betsy) (Entered: 03/18/2016)

03/18/2016

108 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document Attachments to MSJ under seal 107 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Exhibit Att A Doc 089 - Protective Order, # 2 Unredacted Document Att. 1 Ash Depo Excerpts UNREDACTED, # 3 Unredacted Document Att. 2 Baker Depo Excerpts UNREDACTED, # 4 Unredacted Document Att. 3 Campwala Depo Excerpts UNREDACT, # 5 Unredacted Document Att. 4 Dhamija Depo Excerpts Vol 1 12-8-15, # 6 Unredacted Document Att. 5 Dhamija Depo Excerpts Vol 2 1-28-16 UNREDACT, # 7 Unredacted Document Att. 6 Greenwood Depo Excerpts UNREDACTED, # 8 Unredacted Document Att. 7 Hatch Depo Excerpts, # 9 Unredacted Document Att. 8 Kayaleh Depo Excerpts, # 10 Unredacted Document Att. 9 Leberthon Depo Excerpts, # 11 Unredacted Document Att. 10 Mesipam Depo Excerpts, # 12 Unredacted Document Att. 11 Shokrae Depo Excerpts,

# 13 Unredacted Document Att. 12 Solano Depo Excerpts UNREDACTED, # 14 Unredacted Document Att. 13 Thomas Depo Excerpts UNREDACTED, # 15 Unredacted Document Att. 14 Pls Exhibit 52 Dhamija Thomas Report 12-3-15 UNREDACT, # 16 Unredacted Document Att. 15 Defs Exhibit 69 Kripke Expert Report 11-30-15 UNREDACT, # 17 Unredacted Document Att. 16 Pls Exhibit 70 Dhamija rebuttal expert report 12-28-15 UNREDACT, # 18 Unredacted Document Att. 17 Defs Amended Designation of Rebuttal Expert Witness UNREDACT, # 19 Unredacted Document Att. 18 Pls. Exhibit 27 (Baker) Palomares IHO Summary 2015.06.22 DHCS2521-2528, # 20 Unredacted Document Att. 19 Pls. Ex 30 (Baker) Palomares DHCS Adopted Decision DHCS2645-2657 UNREDACT, # 21 Unredacted Document Att. 20 Pls. Ex 31 (Baker) Palomares IHO Menu JP000349-000359, # 22 Unredacted Document Att. 21 Pls. Ex32 (Baker) Palomares IHO Case Review DHCS25292542, # 23 Unredacted Document Att. 22 Pls. Ex 33 (Baker) Palomares Manual POTJP001052-001074, # 24 Unredacted Document Att. 23 Pls. Ex 38 (Solano) Benison IHO Case Report SB000319-000338, # 25 Unredacted Document Att. 24 Pls. Ex 40 (Solano) Benison IHO Case Report 2015.06.04, # 26 Unredacted Document Att. 25 Pls. Ex 43 (Greenwood) Thomas IHO Case Report 000360-000376, # 27 Unredacted Document Att. 26 Pls. Ex 45 (Greenwood) 2014.07.31 Ltr from DRC to Walsh, RN JT002336-002495, # 28 Unredacted Document Att. 27 Pls.Ex 48 (Greenwood) Thomas HHC and PO JT002324-002331, # 29 Unredacted Document Att. 28 Defs. Ex 03 (Kalayeh) Thomas History and Eval JT-002435-2437, # 30 Unredacted Document Att. 29 Defs. Ex 12 (Kayaleh) Thomas HHC and POC JT002324-2331, # 31 Unredacted Document Att. 30 Defs. Ex 13 (Kayaleh) Kayaleh Ltr to Walsh JT-002338-2342, # 32 Unredacted Document Att. 31 Defs. Ex 19 (Campwala) Main St Patient Encounter SB000254, # 33 Unredacted Document Att. 32 Defs. Ex 20 (Campwala) Benison HHC and POCSB000418-420, # 34 Unredacted Document Att. 33 Defs. Ex 22 (Campwala) Benison POT SB000457459, # 35 Unredacted Document Att. 34 Defs. Ex 25 (Campwala) Benison HHC and POC SB000454-456, # 36 Unredacted Document Att. 35 Defs. Ex 26 (Campwala) Benison HHC and POC DHCS86848686, # 37 Unredacted Document Att. 36 Defs.Ex 27 (Campwala) Benison HHC and POC DHCS8680-8682, # 38 Unredacted Document Att. 37 Defs. Ex 28 (Campwala) Benison Supplementary Physician Order, # 39 Unredacted Document Att. 38 Defs. Ex 38 (Mesipam) Benison Request for Order SB000471-472, # 40 Unredacted Document Att. 39 Defs. Ex 49 (Hatch) CA Self Directed Services SBSLS 000002000009, # 41 Unredacted Document Att. 40 Defs.Ex 56 (Ash) Thomas Home Health Cert and POC, # 42 Unredacted Document Att. 41 Decl. of Sean Benison UNREDACTED, # 43 Unredacted Document Att. 42 Decl. of Juan Palomares UNREDACTED, # 44 Unredacted Document

Att. 43 Decl. of Beverly Thomas UNREDACTED, # 45 Unredacted Document Att. 44 Decl. of Linda Oleson ISO Ps MSJ 1-26-16 UNREDACTED, # 46 Unredacted Document Att. 44-A Exhibit A to Oleson Decl. ISO MSJ 2-4-16, # 47 Unredacted Document Att. 44-B Exhibit B to Oleson Decl. ISO MSJ 2-4-16 UNREDACTED, # 48 Unredacted Document Att. 45 Valcarenghi Decl and Exhibits UNREDACT, # 49 Unredacted Document Att. 45.5 Ex. 2 of Decl. of Rebecca Schupp, # 50 Unredacted Document Att. 46 Kayaleh Dec re Thomas hearing 2014.09.16 000007-000012, # 51 Unredacted Document Att. 47 Thomas Hearing Decision 2015.01.30 JT-002309002323 UNREDACT, # 52 Unredacted Document Att. 48 Palomares, E Affadavit re IHSS 2007.10.04 JP-000922, # 53 Unredacted Document Att. 49 Palomares, J Affadavit re IHSS 2009.07.13 JP-000941, # 54 Unredacted Document Att. 50 Palomares, E Affadavit re IHSS 2014.04.02 JP-001026-1028 UNREDACT)(Havens, Betsy) (Entered: 03/18/2016)

03/24/2016

109 OPPOSITION to NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction 99 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Declaration, # 2 Declaration, # 3 Declaration)(Gershon, Elissa) (Entered: 03/24/2016)

03/24/2016

110 DECLARATION of Elissa Gershon In support of Plaintiffs' Opposition to NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction 99 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Gershon, Elissa) (Entered: 03/24/2016)

03/24/2016

111 DECLARATION of Ellen Rollins In support of Plaintiffs' Opposition to NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction 99 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Gershon, Elissa) (Entered: 03/24/2016)

03/29/2016

112 STATEMENT of Interest of the United States of America NOTICE OF MOTION AND MOTION for Summary Judgment MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR AN ORDER TREATING SPECIFIED FACTS AS ESTABLISHED 100 filed by Interested Party United States of America. (Attorney Mathew S Schutzer added to party United States of America(pty:ip))(Schutzer, Mathew) (Entered: 03/29/2016)

03/30/2016 113 JOINT STATEMENT of PARTIES STATEMENT OF UNCONTROVERTED FACTS NOTICE OF MOTION AND

MOTION for Summary Judgment MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR AN ORDER TREATING SPECIFIED FACTS AS ESTABLISHED 100 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Havens, Betsy) (Entered: 03/30/2016)

03/30/2016

114 NOTICE OF ERRATA filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. correcting Statement (Motion related), 113 , Statement (Motion related), 102 (Havens, Betsy) (Entered: 03/30/2016)

03/30/2016

115 ORDER GRANTING PLAINTIFFS' APPLICATION 107 TO FILE DOCUMENTS UNDER SEAL by Judge Fernando M. Olguin. (vdr) (Entered: 03/30/2016)

03/30/2016

116 MEMORANDUM in Support of NOTICE OF MOTION AND MOTION for Summary Judgment MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR AN ORDER TREATING SPECIFIED FACTS AS ESTABLISHED 100 Supplemental Memorandum in Support of Motion for Summary Judgment filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Havens, Betsy) (Entered: 03/30/2016)

03/30/2016

117 REPLY Reply in Support of Motion NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction 99 Defendants' Reply to the Opposition to the Motion to Dismiss for Lack of Subject Matter Jurisdiction filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Attachments: # 1 Declaration Declaration of Rebecca Schupp in Support of Defendants' Reply to the Opposition to the Motion to Dismiss)(Wang, Kenneth) (Entered: 03/30/2016)

03/30/2016

118 MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION for Summary Judgment MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR AN ORDER TREATING SPECIFIED FACTS AS ESTABLISHED 100 Defendants' Supplemental Memorandum in Support of their Opposition to the Motion for Summary Judgment filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Wang, Kenneth) (Entered: 03/30/2016)

04/04/2016

119 SEALED DOCUMENT Att. 1 Ash Depo Excerpts UNREDACTED re NOTICE OF MOTION AND MOTION for Summary Judgment MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT, OR IN THE

ALTERNATIVE, FOR AN ORDER TREATING SPECIFIED FACTS AS ESTABLISHED 100 , Order on Motion for Leave to File Document Under Seal 115 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas.(Havens, Betsy) (Entered: 04/04/2016)

04/04/2016

120 SEALED DOCUMENT Att. 2 Baker Depo Excerpts UNREDACTED re NOTICE OF MOTION AND MOTION for Summary Judgment MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR AN ORDER TREATING SPECIFIED FACTS AS ESTABLISHED 100 , Order on Motion for Leave to File Document Under Seal 115 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas.(Havens, Betsy) (Entered: 04/04/2016)

04/04/2016

121 SEALED DOCUMENT Att. 3 Campwala Depo Excerpts UNREDACT re NOTICE OF MOTION AND MOTION for Summary Judgment MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR AN ORDER TREATING SPECIFIED FACTS AS ESTABLISHED 100 , Order on Motion for Leave to File Document Under Seal 115 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas.(Havens, Betsy) (Entered: 04/04/2016)

04/04/2016

122 SEALED DOCUMENT Att. 4 Dhamija Depo Excerpts Vol 1 12-815 re NOTICE OF MOTION AND MOTION for Summary Judgment MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR AN ORDER TREATING SPECIFIED FACTS AS ESTABLISHED 100 , Order on Motion for Leave to File Document Under Seal 115 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas.(Havens, Betsy) (Entered: 04/04/2016)

04/04/2016

123 SEALED DOCUMENT Att. 5 Dhamija Depo Excerpts Vol 2 1-28-16 UNREDACT re NOTICE OF MOTION AND MOTION for Summary Judgment MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR AN ORDER TREATING SPECIFIED FACTS AS ESTABLISHED 100 , Order on Motion for Leave to File Document Under Seal 115 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas.(Havens, Betsy) (Entered: 04/04/2016)

04/04/2016

124 SEALED DOCUMENT Att. 6 Greenwood Depo Excerpts UNREDACTED re NOTICE OF MOTION AND MOTION for Summary Judgment MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR AN ORDER TREATING SPECIFIED FACTS AS

ESTABLISHED 100 , Order on Motion for Leave to File Document Under Seal 115 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas.(Havens, Betsy) (Entered: 04/04/2016)

04/04/2016

125 SEALED DOCUMENT Att. 7 Hatch Depo Excerpts re NOTICE OF MOTION AND MOTION for Summary Judgment MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR AN ORDER TREATING SPECIFIED FACTS AS ESTABLISHED 100 , Order on Motion for Leave to File Document Under Seal 115 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas.(Havens, Betsy) (Entered: 04/04/2016)

04/04/2016

126 SEALED DOCUMENT Att. 8 Kayaleh Depo Excerpts re NOTICE OF MOTION AND MOTION for Summary Judgment MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR AN ORDER TREATING SPECIFIED FACTS AS ESTABLISHED 100 , Order on Motion for Leave to File Document Under Seal 115 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas.(Havens, Betsy) (Entered: 04/04/2016)

04/04/2016

127 SEALED DOCUMENT Amended Declaration of Elissa Gershon with UNREDACTED Documents Filed Under Seal re NOTICE OF MOTION AND MOTION for Summary Judgment MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR AN ORDER TREATING SPECIFIED FACTS AS ESTABLISHED 100 , Order on Motion for Leave to File Document Under Seal 115 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Unredacted Document Att. 9 Leberthon Depo Excerpts, # 2 Unredacted Document Att. 10 Mesipam Depo Excerpts, # 3 Unredacted Document Att. 11 Shokrae Depo Excerpts, # 4 Unredacted Document Att. 12 Solano Depo Excerpts UNREDACTED, # 5 Unredacted Document Att. 13 Thomas Depo Excerpts UNREDACTED, # 6 Unredacted Document Att. 14 Pls Exhibit 52 Dhamija Thomas Report 12-3-15 UNREDACT, # 7 Unredacted Document Att. 15 Defs Exhibit 69 Kripke Expert Report 11-30-15 UNREDACT, # 8 Unredacted Document Att. 16 Pls Exhibit 70 Dhamija rebuttal expert report 12-28-15 UNREDACT, # 9 Unredacted Document Att. 17 Defs Amended Designation of Rebuttal Expert Witness UNREDACT, # 10 Unredacted Document Att. 18 Pls. Exhibit 27 (Baker) Palomares IHO Summary 2015.06.22 DHCS2521-2528, # 11 Unredacted Document Att. 19 Pls. Ex 30 (Baker) Palomares DHCS Adopted Decision DHCS2645-2657 UNREDACT, # 12 Unredacted Document Att. 20 Pls. Ex 31 (Baker)

Palomares IHO Menu JP000349-000359, # 13 Unredacted Document Att. 21 Pls. Ex32 (Baker) Palomares IHO Case Review DHCS25292542, # 14 Unredacted Document Att. 22 Pls. Ex 33 (Baker) Palomares Manual POTJP001052-001074, # 15 Unredacted Document Att. 23 Pls. Ex 38 (Solano) Benison IHO Case Report SB000319-000338, # 16 Unredacted Document Att. 24 Pls. Ex 40 (Solano) Benison IHO Case Report 2015.06.04, # 17 Unredacted Document Att. 25 Pls. Ex 43 (Greenwood) Thomas IHO Case Report 000360-000376, # 18 Unredacted Document Att. 26 Pls. Ex 45 (Greenwood) 2014.07.31 Ltr from DRC to Walsh, RN JT002336-002495, # 19 Unredacted Document Att. 27 Pls.Ex 48 (Greenwood) Thomas HHC and PO JT002324-002331, # 20 Unredacted Document Att. 28 Defs. Ex 03 (Kalayeh) Thomas History and Eval JT-002435-2437, # 21 Unredacted Document Att. 29 Defs. Ex 12 (Kayaleh) Thomas HHC and POC JT002324-2331, # 22 Unredacted Document Att. 30 Defs. Ex 13 (Kayaleh) Kayaleh Ltr to Walsh JT-002338-2342, # 23 Unredacted Document Att. 31 Defs. Ex 19 (Campwala) Main St Patient Encounter SB000254, # 24 Unredacted Document Att. 32 Defs. Ex 20 (Campwala) Benison HHC and POCSB000418-420, # 25 Unredacted Document Att. 33 Defs. Ex 22 (Campwala) Benison POT SB000457459, # 26 Unredacted Document Att. 34 Defs. Ex 25 (Campwala) Benison HHC and POC SB000454-456, # 27 Unredacted Document Att. 35 Defs. Ex 26 (Campwala) Benison HHC and POC DHCS86848686, # 28 Unredacted Document Att. 36 Defs.Ex 27 (Campwala) Benison HHC and POC DHCS8680-8682, # 29 Unredacted Document Att. 37 Defs. Ex 28 (Campwala) Benison Supplementary Physician Order, # 30 Unredacted Document Att. 38 Defs. Ex 38 (Mesipam) Benison Request for Order SB000471-472, # 31 Unredacted Document Att. 39 Defs. Ex 49 (Hatch) CA Self Directed Services SBSLS 000002000009, # 32 Unredacted Document Att. 40 Defs.Ex 56 (Ash) Thomas Home Health Cert and POC, # 33 Unredacted Document Att. 41 Decl. of Sean Benison UNREDACTED, # 34 Unredacted Document Att. 42 Decl. of Juan Palomares UNREDACTED, # 35 Unredacted Document Att. 43 Decl. of Beverly Thomas UNREDACTED, # 36 Unredacted Document Att. 44 Decl. of Linda Oleson ISO Ps MSJ 1-26-16 UNREDACTED, # 37 Unredacted Document Att. 44-A Exhibit A to Oleson Decl. ISO MSJ 2-4-16, # 38 Unredacted Document Att. 44-B Exhibit B to Oleson Decl. ISO MSJ 2-4-16 UNREDACTED, # 39 Unredacted Document Att. 45 Valcarenghi Decl and Exhibits UNREDACT, # 40 Unredacted Document Att. 45.5 Ex. 2 of Decl. of Rebecca Schupp, # 41 Unredacted Document Att. 46 Kayaleh Dec re Thomas hearing 2014.09.16 000007-000012, # 42 Unredacted Document Att. 47 Thomas Hearing Decision 2015.01.30 JT-002309002323 UNREDACT, # 43 Unredacted Document Att. 48 Palomares, E Affadavit re IHSS 2007.10.04 JP-000922, # 44 Unredacted Document Att. 49 Palomares, J Affadavit re IHSS 2009.07.13 JP-000941,

# 45 Unredacted Document Att. 50 Palomares, J Affadavit re IHSS 2009.07.13 JP-001026)(Havens, Betsy) (Entered: 04/04/2016)

04/04/2016

128 DECLARATION of Elissa Gerson In Support of Plaintiffs' Motion for Summary Judgment NOTICE OF MOTION AND MOTION for Summary Judgment MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR AN ORDER TREATING SPECIFIED FACTS AS ESTABLISHED 100 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Exhibit Attachment A, # 2 Unredacted Document Att. 20 Pls. Ex 31 (Baker) Palomares IHO Menu JP000349000359, # 3 Redacted Document Att. 104 Schupp Decl. REDACTED, # 4 Redacted Document Att. 134 Campwala Depo Excerpts REDACT, # 5 Redacted Document Att. 136 Pls Exhibit 52 Dhamija Thomas Report 12-3-15 REDACT, # 6 Redacted Document Att. 137 Defs Exhibit 69 Kripke Expert Report 11-30-15 REDACT, # 7 Redacted Document Att. 138 Pls Exhibit 70 Dhamija rebuttal expert report 1228-15 REDACT, # 8 Redacted Document Att. 139 Defs Amended Designation of Rebuttal Expert Witness REDACT, # 9 Redacted Document Att. 140 Pls. Ex 30 (Baker) Palomares DHCS Adopted Decision DHCS2645-2657 REDACT, # 10 Redacted Document Att. 141 Valcarenghi Decl and Exhibits REDACTED, # 11 Redacted Document Att. 142 Thomas Hearing Decision 2015.01.30 JT-002309002323 REDACT, # 12 Redacted Document Att. 143 Palomares, E Affadavit re IHSS 2014.04.02 JP-001026-1028 REDACT, # 13 Redacted Document Att. 144 Palomares, E Affadavit re IHSS 2007.10.04 JP-000922, # 14 Redacted Document Att. 135 Dhamija Depo Excerpts Vol 2 1-28-16 REDACT)(Havens, Betsy) (Entered: 04/04/2016)

04/05/2016

129 PROOF OF SERVICE filed by Plaintiff Sean Benison, Juan Palomares, Jerry Thomas, re Sealed Document, 124 , Sealed Document 122 , Sealed Document 121 , Sealed Document 127 , Sealed Document, 123 , Sealed Document 119 Sealed Document, 120 , Sealed Document, 125 , Sealed Document 126 served on 4/5/2016. (Havens, Betsy) Modified on 4/7/2016 (vdr). (Entered: 04/05/2016)

04/05/2016

130 EX PARTE APPLICATION for Leave to file Surreply re Motion for Summary Judgment and Motion to Dismiss filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Declaration of Elissa Gershon, # 2 Proposed Order Granting Leave to File Surreply) (Gershon, Elissa) (Entered: 04/05/2016)

04/06/2016 131 Revised Table of Contents for Evidentiary Appendix filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas re: Declaration (Motion

related) 103 (Havens, Betsy) Modified on 4/7/2016 (vdr). (Entered: 04/06/2016)

04/08/2016

132 SUPPLEMENT to NOTICE OF MOTION AND MOTION for Summary Judgment MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR AN ORDER TREATING SPECIFIED FACTS AS ESTABLISHED 100 NEW INFORMATION RELATED TO DEFENDANTS SUPPLEMENTAL MEMORANDUM IN SUPPORT OF THEIR OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Attachments: # 1 Declaration Declaration of Rebecca Schupp)(Wang, Kenneth) (Entered: 04/08/2016)

04/08/2016

133 SUPPLEMENT to NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction 99 NEW INFORMATION RELATED TO DEFENDANTS REPLY TO THE OPPOSITION TO THE MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Attachments: # 1 Declaration Declaration of Rebecca Schupp)(Wang, Kenneth) (Entered: 04/08/2016)

04/08/2016

134 TEXT ONLY ENTRY by Chambers of Judge Fernando M. Olguin. On the court's own motion, the Motion to Dismiss 99 and Motion for Summary Judgment 100 , are taken off the 4/14/2016 calendar and placed under submission. No appearances are required on 4/14/2016. An order with the court's rulings will issue. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (vdr) TEXT ONLY ENTRY (Entered: 04/08/2016)

04/11/2016

135 MINUTES (IN CHAMBERS) ORDER RE: APPLICATION 130 FOR LEAVE TO FILE SUR-REPLY by Judge Fernando M. Olguin. The court grants plaintiffs' ex parte application. (vdr) (Entered: 04/11/2016)

04/18/2016

136 SUPPLEMENT to NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction 99 New Information Related To Defendants' Reply To The Opposition To The Motion To Dismiss For Lack Of Subject Matter Jurisdiction filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Attachments: # 1 Declaration Second Supplemental Declaration of Rebecca Schupp, # 2 Exhibit Exhibit A - Part 1, # 3 Exhibit Exhibit A - Part 2)(Wang, Kenneth) (Entered: 04/18/2016)

04/18/2016

137 SUPPLEMENT to NOTICE OF MOTION AND MOTION for Summary Judgment MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT, OR IN THE

ALTERNATIVE, FOR AN ORDER TREATING SPECIFIED FACTS AS ESTABLISHED 100 New Information Related To Defendants' Supplemental Memorandum In Support Of Their Opposition To The Motion For Summary Judgment filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Attachments: # 1 Declaration Second Supplemental Declaration of Rebecca Schupp, # 2 Exhibit A - Part 1, # 3 Exhibit A - Part 2)(Wang, Kenneth) (Entered: 04/18/2016)

04/21/2016

138 EX PARTE APPLICATION for Leave to file MOTION TO STRIKE OR, IN THE ALTERNATIVE, SURREPLY IN RESPONSE TO DEFENDANTS NEW INFORMATION RELATED TO DEFENDANTS REPLY TO THE OPPOSITION TO THE MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION AND DEFENDANTS SUPPLEMENTAL MEMORANDUM IN SUPPORT OF THEIR OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AND MOTION TO STRIKE OR, IN THE ALTERNATIVE, SURREPLY filed by Plaintiff Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Declaration Declaration of Betsy Havens, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Exhibit Exhibit C, # 5 Proposed Order) (Havens, Betsy) (Entered: 04/21/2016)

04/27/2016

139 ORDER RE: PENDING MOTIONS ANDFURTHER PROCEEDINGS by Judge Fernando M. Olguin that Defendant Motion to Dismiss 99 and plaintiffs Motion for Summary Judgment 100 are DENIED without prejudice, and the corresponding hearing dates are vacated. Plaintiffs Ex Parte Application for Leave to File Motion to Strike or, in the Alternative, Surreply 138 is DENIED AS MOOT. (See attachment of this Order for further details). (jp) (Entered: 04/27/2016)

05/25/2016

140 EX PARTE APPLICATION for Hearing In-Person Conference or in the Alternative, a Clarification of the Court's Order Regarding Additional Discovery filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Attachments: # 1 Declaration In Support of Defendants' Ex Parte Application) (Wang, Kenneth) (Entered: 05/25/2016)

05/26/2016

141 Plaintiffs' Opposition Opposition re: EX PARTE APPLICATION for Hearing In-Person Conference or in the Alternative, a Clarification of the Court's Order Regarding Additional Discovery 140 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Gershon, Elissa) (Entered: 05/26/2016)

05/26/2016

142 DECLARATION of Elissa Gershon In Opposition to EX PARTE APPLICATION for Hearing In-Person Conference or in the Alternative, a Clarification of the Court's Order Regarding Additional

Discovery 140 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Exhibit A to Gershon Declaration, # 2 Exhibit B to Gershon Declaration, # 3 Exhibit C to Gershon Declaration, # 4 Exhibit D to Gershon Declaration, # 5 Exhibit E to Gershon Declaration, # 6 Exhibit F to Gershon Declaration, # 7 Exhibit G to Gershon Declaration, # 8 Exhibit H to Gershon Declaration)(Gershon, Elissa) (Entered: 05/26/2016)

05/31/2016

143 ORDER RE: EX PARTE APPLICATION AND FURTHER DISCOVERY PROCEEDINGS 140 by Judge Fernando M. Olguin: IT IS ORDERED THAT: 1. The Application (Document No. 140) is granted in part and denied in part as set forth below. 2. Pursuant to the Court's Order of April 27, 2016, (see Dkt. 139), the parties may conduct additional discovery with respect to the NF/AH Waiver Program amendment proposed by defendants. Each individual party is permitted an additional ten (10) hours of deposition, one set of document requests (limit 25), one set of requests for admissions (limit 25), and one set of interrogatories (limit 25). (jloz) (Entered: 05/31/2016)

06/20/2016

144 EX PARTE APPLICATION to Clarify Scheduling and Meet and Confer Obligations for Plaintiffs' Motion for Summary Judgment filed by Plaintiff Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Declaration Declaration of Elissa Gershon, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Exhibit Exhibit C, # 5 Exhibit Exhibit D, # 6 Declaration Declaration of Mona Tawatao, # 7 Exhibit Exhibit E, # 8 Proposed Order Proposed Order)(Gershon, Elissa) (Entered: 06/20/2016)

06/21/2016

145 OPPOSITION to EX PARTE APPLICATION to Clarify Scheduling and Meet and Confer Obligations for Plaintiffs' Motion for Summary Judgment 144 filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Attachments: # 1 Declaration of Attorney General Kenneth K. Wang in Support of Defendants' Opposition to the Ex Parte Application)(Wang, Kenneth) (Entered: 06/21/2016)

06/22/2016

146 ORDER RE: EX PARTE APPLICATION AND FURTHER PROCEEDINGS 144 by Judge Fernando M. Olguin. IT IS ORDERED THAT: 1. Plaintiffs' Ex Parte Application 144 is granted in part and denied. (Refer to attached document for requirements.) (lom) (Entered: 06/22/2016)

07/12/2016

147 APPLICATION to file document ISO Plaintiffs' Motion for Summary Judgment under seal filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Memorandum Memo of Points and Authorities, # 2 Proposed Order, # 3 Redacted Document Attachment

A, # 4 Redacted Document Attachment B, # 5 Redacted Document 51, # 6 Redacted Document 52, # 7 Redacted Document 55, # 8 Redacted Document 60, # 9 Redacted Document 61, # 10 Redacted Document 100, # 11 Redacted Document 101, # 12 Redacted Document 102, # 13 Redacted Document 103, # 14 Redacted Document 103-B, # 15 Redacted Document 104, # 16 Redacted Document 134, # 17 Redacted Document 135, # 18 Redacted Document 136, # 19 Redacted Document 137, # 20 Redacted Document 138, # 21 Redacted Document 139, # 22 Redacted Document 140, # 23 Redacted Document 141, # 24 Redacted Document 142, # 25 Redacted Document 143, # 26 Redacted Document 144)(Havens, Betsy) (Entered: 07/12/2016)

07/12/2016

148 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document ISO Plaintiffs' Motion for Summary Judgment under seal 147 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Unredacted Document Attachment 1, # 2 Unredacted Document Attachment 2, # 3 Unredacted Document Attachment 3, # 4 Unredacted Document Attachment 4, # 5 Unredacted Document Attachment 5, # 6 Unredacted Document Attachment 6, # 7 Unredacted Document Attachment 7, # 8 Unredacted Document Attachment 8, # 9 Unredacted Document Attachment 9, # 10 Unredacted Document Attachment 10, # 11 Unredacted Document Attachment 11, # 12 Unredacted Document Attachment 12, # 13 Unredacted Document Attachment 13, # 14 Unredacted Document Attachment 14, # 15 Unredacted Document Attachment 15, # 16 Unredacted Document Attachment 16, # 17 Unredacted Document Attachment 17, # 18 Unredacted Document Attachment 18, # 19 Unredacted Document Attachment 19, # 20 Unredacted Document Attachment 20, # 21 Unredacted Document Attachment 21, # 22 Unredacted Document Attachment 22, # 23 Unredacted Document Attachment 23, # 24 Unredacted Document Attachment 24, # 25 Unredacted Document Attachment 25, # 26 Unredacted Document Attachment 26, # 27 Unredacted Document Attachment 27, # 28 Unredacted Document Attachment 28, # 29 Unredacted Document Attachment 29, # 30 Unredacted Document Attachment 30, # 31 Unredacted Document Attachment 31, # 32 Unredacted Document Attachment 32, # 33 Unredacted Document Attachment 33, # 34 Unredacted Document Attachment 34, # 35 Unredacted Document Attachment 35, # 36 Unredacted Document Attachment 36, # 37 Unredacted Document Attachment 37, # 38 Unredacted Document Attachment 38, # 39 Unredacted Document Attachment 39, # 40 Unredacted Document Attachment 40, # 41 Unredacted Document Attachment 41, # 42 Unredacted Document Attachment 42, # 43 Unredacted Document Attachment 43, # 44 Unredacted Document Attachment 44, # 45 Unredacted Document Attachment 44-A,

# 46 Unredacted Document Attachment 44-B, # 47 Unredacted Document Attachment 45, # 48 Unredacted Document Attachment 45.5, # 49 Unredacted Document Attachment 46, # 50 Unredacted Document Attachment 47, # 51 Unredacted Document Attachment 48, # 52 Unredacted Document Attachment 49, # 53 Unredacted Document Attachment 50)(Havens, Betsy) (Entered: 07/12/2016)

07/13/2016

149 PROOF OF SERVICE filed by Plaintiff Sean Benison, Juan Palomares, Jerry Thomas, re Sealed Declaration in SupportDeclaration,,,,,,,,, 148 Proof of Service of Documents Filed Under Seal served on 7/13/2016. (Gershon, Elissa) (Entered: 07/13/2016)

07/13/2016 150 ORDER GRANTING Plaintiffs Application to File Documents Under Seal 147 by Judge Fernando M. Olguin. (jp) (Entered: 07/13/2016)

07/18/2016

151 NOTICE OF MOTION AND MOTION for Summary Judgment as to All claims MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR AN ORDER TREATING SPECIFIED FACTS AS ESTABLISHED filed by Plaintiff Sean Benison, Juan Palomares, Jerry Thomas. Motion set for hearing on 8/18/2016 at 10:00 AM before Judge Fernando M. Olguin. (Attachments: # 1 Proposed Order, # 2 Proposed Judgment) (Havens, Betsy) (Entered: 07/18/2016)

07/18/2016

152 MEMORANDUM in Support of NOTICE OF MOTION AND MOTION for Summary Judgment as to All claims MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR AN ORDER TREATING SPECIFIED FACTS AS ESTABLISHED 151 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Havens, Betsy) (Entered: 07/18/2016)

07/18/2016

153 JOINT STATEMENT of UNCONTROVERTED FACTS NOTICE OF MOTION AND MOTION for Summary Judgment as to All claims MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR AN ORDER TREATING SPECIFIED FACTS AS ESTABLISHED 151 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Havens, Betsy) (Entered: 07/18/2016)

07/18/2016

154 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document ISO Plaintiffs' Motion for Summary Judgment under seal 147 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Unredacted Document Attachment 1, # 2 Unredacted Document Attachment 2, # 3 Unredacted Document Attachment 3, # 4 Unredacted Document Attachment 4, # 5 Unredacted

Document Attachment 5, # 6 Unredacted Document Attachment 6, # 7 Unredacted Document Attachment 7, # 8 Unredacted Document Attachment 8, # 9 Unredacted Document Attachment 9, # 10 Unredacted Document Attachment 10, # 11 Unredacted Document Attachment 11, # 12 Unredacted Document Attachment 12, # 13 Unredacted Document Attachment 13, # 14 Unredacted Document Attachment 14, # 15 Unredacted Document Attachment 15, # 16 Unredacted Document Attachment 16, # 17 Unredacted Document Attachment 17, # 18 Unredacted Document Attachment 18, # 19 Unredacted Document Attachment 19, # 20 Unredacted Document Attachment 21, # 21 Unredacted Document Attachment 22, # 22 Unredacted Document Attachment 23, # 23 Unredacted Document Attachment 24, # 24 Unredacted Document Attachment 25, # 25 Unredacted Document Attachment 26, # 26 Unredacted Document Attachment 27, # 27 Unredacted Document Attachment 28, # 28 Unredacted Document Attachment 29, # 29 Unredacted Document Attachment 30, # 30 Unredacted Document Attachment 31, # 31 Unredacted Document Attachment 32, # 32 Unredacted Document Attachment 33, # 33 Unredacted Document Attachment 34, # 34 Unredacted Document Attachment 35, # 35 Unredacted Document Attachment 36, # 36 Unredacted Document Attachment 37, # 37 Unredacted Document Attachment 38, # 38 Unredacted Document Attachment 39, # 39 Unredacted Document Attachment 40, # 40 Unredacted Document Attachment 41, # 41 Unredacted Document Attachment 42, # 42 Unredacted Document Attachment 43, # 43 Unredacted Document Attachment 44, # 44 Unredacted Document Attachment 44-A, # 45 Unredacted Document Attachment 44-B, # 46 Unredacted Document Attachment 45, # 47 Unredacted Document Attachment 45.5, # 48 Unredacted Document Attachment 46, # 49 Unredacted Document Attachment 47, # 50 Unredacted Document Attachment 48, # 51 Unredacted Document Attachment 49, # 52 Unredacted Document Attachment 50)(Havens, Betsy) (Entered: 07/18/2016)

07/18/2016

155 DECLARATION of Elissa Gershon in support of NOTICE OF MOTION AND MOTION for Summary Judgment as to All claims MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR AN ORDER TREATING SPECIFIED FACTS AS ESTABLISHED 151 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Exhibit Attachment A, # 2 Table of Contents for Evidentiary Appendix, # 3 Redacted Document Attachment 51 of Evidentiary Appendix, # 4 Redacted Document Attachment 52 of Evidentiary Appendix, # 5 Unredacted Document Attachment 53 of Evidentiary Appendix, # 6 Unredacted Document Attachment 54 of Evidentiary Appendix, # 7 Unredacted Document

Attachment 55 of Evidentiary Appendix, # 8 Unredacted Document Attachment 56 of Evidentiary Appendix, # 9 Unredacted Document Attachment 57 of Evidentiary Appendix, # 10 Unredacted Document Attachment 57.1 of Evidentiary Appendix, # 11 Unredacted Document Attachment 58 of Evidentiary Appendix, # 12 Unredacted Document Attachment 59 of Evidentiary Appendix, # 13 Unredacted Document Attachment 60 of Evidentiary Appendix, # 14 Unredacted Document Attachment 61 of Evidentiary Appendix, # 15 Unredacted Document Attachment 61.1 of Evidentiary Appendix, # 16 Unredacted Document Attachment 61.2 of Evidentiary Appendix, # 17 Unredacted Document Attachment 63 of Evidentiary Appendix, # 18 Unredacted Document Attachment 64 of Evidentiary Appendix, # 19 Unredacted Document Attachment 65 of Evidentiary Appendix, # 20 Unredacted Document Attachment 66 of Evidentiary Appendix, # 21 Unredacted Document Attachment 67 of Evidentiary Appendix, # 22 Unredacted Document Attachment 68 of Evidentiary Appendix, # 23 Unredacted Document Attachment 69 of Evidentiary Appendix, # 24 Unredacted Document Attachment 70 of Evidentiary Appendix, # 25 Unredacted Document Attachment 71 of Evidentiary Appendix, # 26 Unredacted Document Attachment 72 of Evidentiary Appendix, # 27 Unredacted Document Attachment 73 of Evidentiary Appendix, # 28 Unredacted Document Attachment 74 of Evidentiary Appendix, # 29 Unredacted Document Attachment 75 of Evidentiary Appendix, # 30 Unredacted Document Attachment 76 of Evidentiary Appendix, # 31 Unredacted Document Attachment 77 of Evidentiary Appendix, # 32 Unredacted Document Attachment 78 of Evidentiary Appendix, # 33 Unredacted Document Attachment 79 of Evidentiary Appendix, # 34 Unredacted Document Attachment 80 of Evidentiary Appendix, # 35 Unredacted Document Attachment 81 of Evidentiary Appendix, # 36 Unredacted Document Attachment 82 of Evidentiary Appendix, # 37 Unredacted Document Attachment 83 of Evidentiary Appendix, # 38 Unredacted Document Attachment 84 of Evidentiary Appendix, # 39 Unredacted Document Attachment 85 of Evidentiary Appendix, # 40 Unredacted Document Attachment 86 of Evidentiary Appendix, # 41 Unredacted Document Attachment 87 of Evidentiary Appendix, # 42 Unredacted Document Attachment 88 of Evidentiary Appendix, # 43 Unredacted Document Attachment 89 of Evidentiary Appendix, # 44 Unredacted Document Attachment 90 of Evidentiary Appendix, # 45 Unredacted Document Attachment 91 of Evidentiary Appendix, # 46 Unredacted Document Attachment 92 of Evidentiary Appendix, # 47 Unredacted Document Attachment 93 of Evidentiary Appendix, # 48 Unredacted Document Attachment 94 of Evidentiary Appendix, # 49 Unredacted Document Attachment 95 of Evidentiary Appendix, # 50 Unredacted Document Attachment 95.1 of Evidentiary Appendix, # 51 Unredacted Document Attachment 95.2 of Evidentiary Appendix, # 52 Unredacted Document Attachment 95.3 of Evidentiary Appendix, # 53 Unredacted Document

Attachment 95.4 of Evidentiary Appendix, # 54 Unredacted Document Attachment 95.5 of Evidentiary Appendix, # 55 Unredacted Document Attachment 95.6 of Evidentiary Appendix, # 56 Unredacted Document Attachment 95.7 of Evidentiary Appendix, # 57 Unredacted Document Attachment 95.8 of Evidentiary Appendix, # 58 Unredacted Document Attachment 95.9 of Evidentiary Appendix, # 59 Unredacted Document Attachment 95.10 of Evidentiary Appendix, # 60 Unredacted Document Attachment 96 of Evidentiary Appendix, # 61 Unredacted Document Attachment 97 of Evidentiary Appendix, # 62 Unredacted Document Attachment 98 of Evidentiary Appendix, # 63 Unredacted Document Attachment 99 of Evidentiary Appendix, # 64 Redacted Document Attachment 100 of Evidentiary Appendix, # 65 Redacted Document Attachment 101 of Evidentiary Appendix, # 66 Redacted Document Attachment 102 of Evidentiary Appendix, # 67 Redacted Document Attachment 103 of Evidentiary Appendix, # 68 Redacted Document Attachment 103-B of Evidentiary Appendix, # 69 Unredacted Document Attachment 104 of Evidentiary Appendix, # 70 Unredacted Document Attachment 104.1 of Evidentiary Appendix, # 71 Unredacted Document Attachment 104.2 of Evidentiary Appendix, # 72 Unredacted Document Attachment 105 of Evidentiary Appendix, # 73 Unredacted Document Attachment 106 of Evidentiary Appendix, # 74 Unredacted Document Attachment 107 of Evidentiary Appendix, # 75 Unredacted Document Attachment 108 of Evidentiary Appendix, # 76 Unredacted Document Attachment 109 of Evidentiary Appendix, # 77 Unredacted Document Attachment 110 of Evidentiary Appendix, # 78 Unredacted Document Attachment 111 of Evidentiary Appendix, # 79 Unredacted Document Attachment 112 of Evidentiary Appendix, # 80 Unredacted Document Attachment 113 of Evidentiary Appendix, # 81 Unredacted Document Attachment 114 of Evidentiary Appendix, # 82 Unredacted Document Attachment 115 of Evidentiary Appendix, # 83 Unredacted Document Attachment 116 of Evidentiary Appendix, # 84 Unredacted Document Attachment 117 of Evidentiary Appendix, # 85 Unredacted Document Attachment 118 of Evidentiary Appendix, # 86 Unredacted Document Attachment 119 of Evidentiary Appendix, # 87 Unredacted Document Attachment 120 of Evidentiary Appendix, # 88 Unredacted Document Attachment 121 of Evidentiary Appendix, # 89 Unredacted Document Attachment 122 of Evidentiary Appendix, # 90 Unredacted Document Attachment 123 of Evidentiary Appendix, # 91 Unredacted Document Attachment 124 of Evidentiary Appendix, # 92 Unredacted Document Attachment 125 of Evidentiary Appendix, # 93 Unredacted Document Attachment 126 of Evidentiary Appendix, # 94 Unredacted Document Attachment 127 of Evidentiary Appendix, # 95 Unredacted Document Attachment 128 of Evidentiary Appendix, # 96 Unredacted Document Attachment 129 of Evidentiary Appendix, # 97 Unredacted Document Attachment 130 of Evidentiary Appendix, # 98 Unredacted Document Attachment 131 of

Evidentiary Appendix, # 99 Unredacted Document Attachment 132 of Evidentiary Appendix, # 100 Unredacted Document Attachment 133 of Evidentiary Appendix, # 101 Unredacted Document Attachment 133.1 of Evidentiary Appendix, # 102 Unredacted Document Attachment 133.2 of Evidentiary Appendix, # 103 Unredacted Document Attachment 133.3 of Evidentiary Appendix, # 104 Unredacted Document Attachment 133.4 of Evidentiary Appendix, # 105 Unredacted Document Attachment 133.5 of Evidentiary Appendix, # 106 Unredacted Document Attachment 133.6 of Evidentiary Appendix, # 107 Unredacted Document Attachment 133.7 of Evidentiary Appendix, # 108 Redacted Document Attachment 133.8 of Evidentiary Appendix, # 109 Unredacted Document Attachment 133.9 of Evidentiary Appendix, # 110 Unredacted Document Attachment 133.10 of Evidentiary Appendix, # 111 Unredacted Document Attachment 133.11 of Evidentiary Appendix, # 112 Unredacted Document Attachment 133.12 of Evidentiary Appendix, # 113 Unredacted Document Attachment 133.13 of Evidentiary Appendix, # 114 Unredacted Document Attachment 133.14 of Evidentiary Appendix, # 115 Unredacted Document Attachment 133.15 of Evidentiary Appendix, # 116 Unredacted Document Attachment 133.16 of Evidentiary Appendix, # 117 Unredacted Document Attachment 133.17 of Evidentiary Appendix, # 118 Unredacted Document Attachment 133.18 of Evidentiary Appendix, # 119 Unredacted Document Attachment 133.19 of Evidentiary Appendix, # 120 Unredacted Document Attachment 133.20 of Evidentiary Appendix, # 121 Unredacted Document Attachment 133.21 of Evidentiary Appendix, # 122 Unredacted Document Attachment 133.22 of Evidentiary Appendix, # 123 Unredacted Document Attachment 133.23 of Evidentiary Appendix, # 124 Unredacted Document Attachment 133.24 of Evidentiary Appendix, # 125 Unredacted Document Attachment 133.25 of Evidentiary Appendix, # 126 Unredacted Document Attachment 133.26 of Evidentiary Appendix, # 127 Unredacted Document Attachment 133.27 of Evidentiary Appendix, # 128 Redacted Document Attachment 134 of Evidentiary Appendix, # 129 Redacted Document Attachment 135 of Evidentiary Appendix, # 130 Redacted Document Attachment 136 of Evidentiary Appendix, # 131 Redacted Document Attachment 137 of Evidentiary Appendix, # 132 Redacted Document Attachment 138 of Evidentiary Appendix, # 133 Redacted Document Attachment 139 of Evidentiary Appendix, # 134 Redacted Document Attachment 140 of Evidentiary Appendix, # 135 Redacted Document Attachment 141 of Evidentiary Appendix, # 136 Redacted Document Attachment 142 of Evidentiary Appendix, # 137 Redacted Document Attachment 143 of Evidentiary Appendix, # 138 Unredacted Document Attachment 144 of Evidentiary Appendix, # 139 Unredacted Document Attachment 145 of Evidentiary Appendix, # 140 Unredacted Document

Attachment 59.1 of Evidentiary Appendix, # 141 Unredacted Document Attachment 59.2 of Evidentiary Appendix)(Havens, Betsy) (Entered: 07/18/2016)

07/28/2016

156 SUPPLEMENT BRIEF IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT filed by Defendant State of California Department of Health Care Services. (Wang, Kenneth) (Entered: 07/28/2016)

07/28/2016

157 SUPPLEMENT BRIEF IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT filed by Defendant State of California Department of Health Care Services. (Wang, Kenneth) (Entered: 07/28/2016)

07/28/2016

158 NOTICE OF ERRATA filed by Defendants Jennifer Kent, State of California Department of Health Care Services. correcting Supplement(Motion related) 156 (Wang, Kenneth) (Entered: 07/28/2016)

08/01/2016

159 NOTICE OF MOTION AND MOTION to Strike Evidence Pursuant to FRCP 37(C)(1) filed by Plaintiffs' Sean Benison, Juan Palomares, Jerry Thomas. Motion set for hearing on 8/18/2016 at 10:00 AM before Judge Fernando M. Olguin. (Attorney Sue L Himmelrich added to party Juan Palomares(pty:pla)) (Himmelrich, Sue) (Entered: 08/01/2016)

08/01/2016

160 DECLARATION of Elissa Gershon in support of NOTICE OF MOTION AND MOTION to Strike Evidence Pursuant to FRCP 37(C)(1) 159 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Gershon, Elissa) (Entered: 08/01/2016)

08/01/2016

161 SUPPLEMENT to NOTICE OF MOTION AND MOTION for Summary Judgment as to All claims MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR AN ORDER TREATING SPECIFIED FACTS AS ESTABLISHED 151 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Gershon, Elissa) (Entered: 08/01/2016)

08/01/2016

162 DECLARATION of Elissa Gershon In Support of NOTICE OF MOTION AND MOTION for Summary Judgment as to All claims MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR AN ORDER TREATING SPECIFIED FACTS AS ESTABLISHED 151 Supplemental Memorandum filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments:

# 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Gershon, Elissa) (Entered: 08/01/2016)

08/03/2016

163 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: NOTICE OF MOTION AND MOTION to Strike Evidence Pursuant to FRCP 37(C)(1) 159 . The following error(s) was found: Proposed Document was not submitted as separate attachment. Proposed Order shall be filed as separate attachment to the e-filed "Notice of Motion and Motion to Strike and/or NOTICE OF LODGING". and e-mailed to a Judge Olguin generic email addresses a WordPerfect or Microsoft Word version of the document. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (jp) (Entered: 08/03/2016)

08/03/2016

164 [DOCUMENT STRICKEN] Refiled Exhibit to Gershon Dec ecf 130 No. 6 re NOTICE OF MOTION AND MOTION to Strike Evidence Pursuant to FRCP 37(C)(1) 159 filed by Plaintiff Juan Palomares. (Hadreas, Anne) Modified on 8/3/2016 (vdr). (Entered: 08/03/2016)

08/03/2016

165 [DOCUMENT STRICKEN] REFILED EXHIBIT F TO ELISSA GERSHON DECLARATION ECF 160 NO. 6 re NOTICE OF MOTION AND MOTION to Strike Evidence Pursuant to FRCP 37(C)(1) 159 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Gershon, Elissa) Modified on 8/3/2016 (vdr). (Entered: 08/03/2016)

08/03/2016

166 NOTICE OF ERRATA filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. correcting Motion Related Document 164 Incorrect Document Filed (Hadreas, Anne) (Entered: 08/03/2016)

08/03/2016

167 EX PARTE APPLICATION for Order for TO SEAL INADVERTENTLY UNREDACTED DOCUMENT (ECF NO. 1606) filed by Plaintiff Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Declaration, # 2 Proposed Order) (Gershon, Elissa) (Entered: 08/03/2016)

08/03/2016

168 ORDER to STRIKE ELECTRONICALLY FILED DOCUMENTS by Judge Fernando M. Olguin Re: Exhibits 164 , and 165 . The following document(s) be STRICKEN for failure to comply with the Local Rules, General Order and/or the Courts Case Management Order for the following reason(s): (1) Title page is missing. (vdr) (Entered: 08/03/2016)

08/04/2016

169 ORDER GRANTING Plaintiffs EX PARTE APPLICATION 167 Seeking an Order to Seal Inadvertently Unredacted Document (ECF No. 160-6) by Judge Fernando M. Olguin that ECF No.160-6 remain sealed. (jp) (Entered: 08/04/2016)

08/04/2016

170 ORDER RE: PENDING MOTIONS AND FURTHER PROCEEDINGS by Judge Fernando M. Olguin. Plaintiffs' Motion for Summary Judgment 151 is denied without prejudice, and the corresponding hearing date is vacated. Plaintiffs' Motion to Strike 159 is denied as moot, and the corresponding hearing date is vacated. *See order for complete ruling and requirements.* (vdr) (Entered: 08/04/2016)

08/04/2016 171 SUPPLEMENT to Statement (Motion related), 112 filed by Interested Party United States of America. (Hull, Joanna) (Entered: 08/04/2016)

08/04/2016

172 NEW FILING OF EXHIBIT F TO DECLARATION OF ELISSA GERSHON (ECF NO. 160-6) re NOTICE OF MOTION AND MOTION to Strike Evidence Pursuant to FRCP 37(C)(1) 159 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Gershon, Elissa) (Entered: 08/04/2016)

08/04/2016

173 EX PARTE APPLICATION for Order for To Seal Mistakenly Filed Document (ECF No. 164) filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Declaration of Anne Hadreas, # 2 Proposed Order) (Hadreas, Anne) (Entered: 08/04/2016)

08/05/2016 174 ORDER GRANTING EX PARTE APPLICATION 173 by Judge Fernando M. Olguin. (vdr) (Entered: 08/05/2016)

08/05/2016

175 NOTICE OF MOTION AND MOTION to Stay Case pending Waiver Amendment and Renewal filed by Defendants Jennifer Kent, State of California Department of Health Care Services. Motion set for hearing on 9/8/2016 at 10:00 AM before Judge Fernando M. Olguin. (Wang, Kenneth) (Entered: 08/05/2016)

08/05/2016

176 DECLARATION of Rebecca Schupp February 26, 2016 in Support of NOTICE OF MOTION AND MOTION to Stay Case pending Waiver Amendment and Renewal 175 filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Attachments: # 1 Exhibit 1 (1 of 3), # 2 Exhibit 1 (2 of 3), # 3 Exhibit 1 (3 of 3), # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9)(Wang, Kenneth) (Entered: 08/05/2016)

08/05/2016 177 DECLARATION of Rebecca Schupp July 8, 2016 in Support of NOTICE OF MOTION AND MOTION to Stay Case pending Waiver

Amendment and Renewal 175 filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Attachments: # 1 Exhibit A (1 of 3), # 2 Exhibit A (2 of 3), # 3 Exhibit A (3 of 3), # 4 Exhibit B)(Wang, Kenneth) (Entered: 08/05/2016)

08/09/2016

178 Defendants' Ex Parte Application for an Order to Seal ECF No. 176-4 re: Declaration (Motion related) 176 (Attachments: # 1 Declaration Declaration of Deputy Attorney General Kenneth K. Wang in Support of Defendants' Ex Parte Application for an Order to Seal ECF No. 1764, # 2 Proposed Order [Proposed] Order Granting Defendants' Ex Parte Application for an Order to Seal ECF No. 176-4)(Wang, Kenneth) Modified on 8/10/2016 (vdr). (Entered: 08/09/2016)

08/10/2016 179 ORDER GRANTING EX PARTE APPLICATION 178 by Judge Fernando M. Olguin. (vdr) (Entered: 08/10/2016)

08/18/2016

180 Plaintiffs' Opposition to Defendants Motion to Stay Opposition re: NOTICE OF MOTION AND MOTION to Stay Case pending Waiver Amendment and Renewal 175 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Gershon, Elissa) (Entered: 08/18/2016)

08/18/2016

181 DECLARATION of Elissa Gershon in opposition to NOTICE OF MOTION AND MOTION to Stay Case pending Waiver Amendment and Renewal 175 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Gershon, Elissa) (Entered: 08/18/2016)

08/18/2016

182 DECLARATION of Diane Frank in opposition to NOTICE OF MOTION AND MOTION to Stay Case pending Waiver Amendment and Renewal 175 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Gershon, Elissa) (Entered: 08/18/2016)

08/18/2016

183 DECLARATION of Sarah McKinney in opposition to NOTICE OF MOTION AND MOTION to Stay Case pending Waiver Amendment and Renewal 175 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Exhibit A)(Gershon, Elissa) (Entered: 08/18/2016)

08/23/2016

184 REPLY in Support NOTICE OF MOTION AND MOTION to Stay Case pending Waiver Amendment and Renewal 175 filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Attachments: # 1 Declaration)(Wang, Kenneth) (Entered: 08/23/2016)

08/25/2016

185 EX PARTE APPLICATION for Leave to file SURREPLY in Response to Defendants' Reply re: Motion to Stay filed by PLAINTIFF Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Proposed Order) (Gershon, Elissa) (Entered: 08/25/2016)

08/25/2016

186 DECLARATION of Elissa Gershon in support of EX PARTE APPLICATION for Leave to file SURREPLY in Response to Defendants' Reply re: Motion to Stay 185 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Gershon, Elissa) (Entered: 08/25/2016)

08/29/2016

187 ORDER RE: MOTION TO STAY 175 AND FURTHER PROCEEDINGS by Judge Fernando M. Olguin. Defendants' Motion to Stay is denied. Plaintiffs' Ex Parte Application 185 is denied as moot. Trial is continued to 11/29/2016 at 8:15 AM. *See order for ruling and continued dates/deadlines.* (vdr) (Entered: 08/29/2016)

08/29/2016

188 TEXT ONLY ENTRY by Chambers of Judge Fernando M. Olguin. On the court's own motion, the Pretrial Conference is reset for 11/10/2016 at 10:00 AM before Judge Fernando M. Olguin (11/11/2016 is a court holiday). THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (vdr) TEXT ONLY ENTRY (Entered: 08/29/2016)

09/01/2016

189 APPLICATION to file document Attachments to MSJ under seal filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Memorandum Points and Authorities, # 2 Proposed Order, # 3 Exhibit Attachment A, # 4 Exhibit Attachment B, # 5 Exhibit Attachment 51, # 6 Exhibit Attachment 52, # 7 Exhibit Attachment 55, # 8 Exhibit Attachment 60, # 9 Exhibit Attachment 61, # 10 Exhibit Attachment 100, # 11 Exhibit Attachment 101, # 12 Exhibit Attachment 102, # 13 Exhibit Attachment 103, # 14 Exhibit Attachment 103-B, # 15 Exhibit Attachment 104, # 16 Exhibit Attachment 134, # 17 Exhibit Attachment 135, # 18 Exhibit Attachment 136, # 19 Exhibit Attachment 137, # 20 Exhibit Attachment 138, # 21 Exhibit Attachment 139, # 22 Exhibit Attachment 140, # 23 Exhibit Attachment 141, # 24 Exhibit Attachment 142, # 25 Exhibit Attachment 143, # 26 Exhibit Attachment 144)(Havens, Betsy) (Entered: 09/01/2016)

09/01/2016

190 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document Attachments to MSJ under seal 189 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Unredacted Document Attachment 1, # 2 Unredacted Document Attachment 2, # 3 Unredacted Document Attachment 3, # 4 Unredacted Document Attachment 4, # 5 Unredacted Document Attachment 5, # 6 Unredacted

Document Attachment 6, # 7 Unredacted Document Attachment 7, # 8 Unredacted Document Attachment 8, # 9 Unredacted Document Attachment 9, # 10 Unredacted Document Attachment 10, # 11 Unredacted Document Attachment 11, # 12 Unredacted Document Attachment 12, # 13 Unredacted Document Attachment 13, # 14 Unredacted Document Attachment 14, # 15 Unredacted Document Attachment 15, # 16 Unredacted Document Attachment 16, # 17 Unredacted Document Attachment 17, # 18 Unredacted Document Attachment 18, # 19 Unredacted Document Attachment 19, # 20 Unredacted Document Attachment 21, # 21 Unredacted Document Attachment 22, # 22 Unredacted Document Attachment 23, # 23 Unredacted Document Attachment 24, # 24 Unredacted Document Attachment 25, # 25 Unredacted Document Attachment 26, # 26 Unredacted Document Attachment 27, # 27 Unredacted Document Attachment 28, # 28 Unredacted Document Attachment 29, # 29 Unredacted Document Attachment 30, # 30 Unredacted Document Attachment 31, # 31 Unredacted Document Attachment 32, # 32 Unredacted Document Attachment 33, # 33 Unredacted Document Attachment 34, # 34 Unredacted Document Attachment 35, # 35 Unredacted Document Attachment 36, # 36 Unredacted Document Attachment 37, # 37 Unredacted Document Attachment 38, # 38 Unredacted Document Attachment 39, # 39 Unredacted Document Attachment 40, # 40 Unredacted Document Attachment 41, # 41 Unredacted Document Attachment 42, # 42 Unredacted Document Attachment 43, # 43 Unredacted Document Attachment 44, # 44 Unredacted Document Attachment 44-A, # 45 Unredacted Document Attachment 44-B, # 46 Unredacted Document Attachment 45, # 47 Unredacted Document Attachment 45.5, # 48 Unredacted Document Attachment 46, # 49 Unredacted Document Attachment 47, # 50 Unredacted Document Attachment 48, # 51 Unredacted Document Attachment 49, # 52 Unredacted Document Attachment 50)(Havens, Betsy) (Entered: 09/01/2016)

09/02/2016

191 PROOF OF SERVICE filed by Plaintiff Sean Benison, Juan Palomares, Jerry Thomas, re Sealed Declaration in SupportDeclaration,,,,,,,,, 190 Proof of Service of Documents Filed Under Seal served on 09/02/2016. (Havens, Betsy) (Entered: 09/02/2016)

09/02/2016 192 ORDER GRANTING APPLICATION 189 TO SEAL by Judge Fernando M. Olguin. (vdr) (Entered: 09/02/2016)

09/07/2016

193 Third NOTICE OF MOTION AND MOTION for Summary Judgment Or in the Alternative, Partial Summary Judgment, or in the Alternative, for an Order Treating Specified Facts as Established filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. Motion set

for hearing on 10/6/2016 at 10:00 AM before Judge Fernando M. Olguin. (Attachments: # 1 Proposed Order, # 2 Proposed Judgment) (Gershon, Elissa) (Entered: 09/07/2016)

09/07/2016

194 MEMORANDUM in Support of Third NOTICE OF MOTION AND MOTION for Summary Judgment Or in the Alternative, Partial Summary Judgment, or in the Alternative, for an Order Treating Specified Facts as Established 193 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Gershon, Elissa) (Entered: 09/07/2016)

09/07/2016

195 JOINT STATEMENT of Uncontroverted Facts Third NOTICE OF MOTION AND MOTION for Summary Judgment Or in the Alternative, Partial Summary Judgment, or in the Alternative, for an Order Treating Specified Facts as Established 193 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Gershon, Elissa) (Entered: 09/07/2016)

09/07/2016

196 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document Attachments to MSJ under seal 189 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Unredacted Document Attachment 1, # 2 Unredacted Document Attachment 2, # 3 Unredacted Document Attachment 3, # 4 Unredacted Document Attachment 4, # 5 Unredacted Document Attachment 5, # 6 Unredacted Document Attachment 6, # 7 Unredacted Document Attachment 7, # 8 Unredacted Document Attachment 8, # 9 Unredacted Document Attachment 9, # 10 Unredacted Document Attachment 10, # 11 Unredacted Document Attachment 11, # 12 Unredacted Document Attachment 12, # 13 Unredacted Document Attachment 13, # 14 Unredacted Document Attachment 14, # 15 Unredacted Document Attachment 15, # 16 Unredacted Document Attachment 16, # 17 Unredacted Document Attachment 17, # 18 Unredacted Document Attachment 18, # 19 Unredacted Document Attachment 19, # 20 Unredacted Document Attachment 21, # 21 Unredacted Document Attachment 22, # 22 Unredacted Document Attachment 23, # 23 Unredacted Document Attachment 24, # 24 Unredacted Document Attachment 25, # 25 Unredacted Document Attachment 26, # 26 Unredacted Document Attachment 27, # 27 Unredacted Document Attachment 28, # 28 Unredacted Document Attachment 29, # 29 Unredacted Document Attachment 30, # 30 Unredacted Document Attachment 31, # 31 Unredacted Document Attachment 32, # 32 Unredacted Document Attachment 33, # 33 Unredacted Document Attachment 34, # 34 Unredacted Document Attachment 35, # 35 Unredacted Document Attachment 36, # 36 Unredacted Document Attachment 37, # 37 Unredacted Document Attachment 38, # 38 Unredacted Document Attachment 39, # 39 Unredacted Document Attachment 40, # 40 Unredacted Document Attachment 41,

# 41 Unredacted Document Attachment 42, # 42 Unredacted Document Attachment 43, # 43 Unredacted Document Attachment 44, # 44 Unredacted Document Attachment 44-A, # 45 Unredacted Document Attachment 44-B, # 46 Unredacted Document Attachment 45, # 47 Unredacted Document Attachment 45.5, # 48 Unredacted Document Attachment 46, # 49 Unredacted Document Attachment 47, # 50 Unredacted Document Attachment 48, # 51 Unredacted Document Attachment 49, # 52 Unredacted Document Attachment 50)(Havens, Betsy) (Entered: 09/07/2016)

09/07/2016

197 DECLARATION of Elissa Gershon in support of Third NOTICE OF MOTION AND MOTION for Summary Judgment Or in the Alternative, Partial Summary Judgment, or in the Alternative, for an Order Treating Specified Facts as Established 193 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Exhibit Attachment A, # 2 Table of Contents for Evidentiary Appendix, # 3 Redacted Document Attachment 51, # 4 Redacted Document Attachment 52, # 5 Unredacted Document Attachment 53, # 6 Unredacted Document Attachment 54, # 7 Redacted Document Attachment 55, # 8 Unredacted Document Attachment 56, # 9 Unredacted Document Attachment 57, # 10 Unredacted Document Attachment 57.1, # 11 Unredacted Document Attachment 58, # 12 Unredacted Document Attachment 59, # 13 Unredacted Document Attachment 59.1, # 14 Unredacted Document Attachment 59.2, # 15 Redacted Document Attachment 60, # 16 Redacted Document Attachment 61, # 17 Unredacted Document Attachment 61.1, # 18 Unredacted Document Attachment 61.2, # 19 Unredacted Document Attachment 63, # 20 Unredacted Document Attachment 64, # 21 Unredacted Document Attachment 65, # 22 Unredacted Document Attachment 66, # 23 Unredacted Document Attachment 67, # 24 Unredacted Document Attachment 68, # 25 Unredacted Document Attachment 69, # 26 Unredacted Document Attachment 70, # 27 Unredacted Document Attachment 71, # 28 Unredacted Document Attachment 72, # 29 Unredacted Document Attachment 73, # 30 Unredacted Document Attachment 74, # 31 Unredacted Document Attachment 75, # 32 Unredacted Document Attachment 76, # 33 Unredacted Document Attachment 77, # 34 Unredacted Document Attachment 78, # 35 Unredacted Document Attachment 79, # 36 Unredacted Document Attachment 80, # 37 Unredacted Document Attachment 81, # 38 Unredacted Document Attachment 82, # 39 Unredacted Document Attachment 83, # 40 Unredacted Document Attachment 84, # 41 Unredacted Document Attachment 85, # 42 Unredacted Document Attachment 86, # 43 Unredacted Document Attachment 87, # 44 Unredacted Document Attachment 88, # 45 Unredacted Document Attachment 89, # 46 Unredacted Document Attachment 90, # 47 Unredacted Document Attachment 91,

# 48 Unredacted Document Attachment 92, # 49 Unredacted Document Attachment 93, # 50 Unredacted Document Attachment 94, # 51 Unredacted Document Attachment 95, # 52 Unredacted Document Attachment 95.1, # 53 Unredacted Document Attachment 95.2, # 54 Unredacted Document Attachment 95.3, # 55 Unredacted Document Attachment 95.4, # 56 Unredacted Document Attachment 95.5, # 57 Unredacted Document Attachment 95.6, # 58 Unredacted Document Attachment 95.7, # 59 Unredacted Document Attachment 95.8, # 60 Unredacted Document Attachment 95.9, # 61 Unredacted Document Attachment 95.10, # 62 Unredacted Document Attachment 96, # 63 Unredacted Document Attachment 97, # 64 Unredacted Document Attachment 98, # 65 Unredacted Document Attachment 99, # 66 Redacted Document Attachment 100, # 67 Redacted Document Attachment 101, # 68 Redacted Document Attachment 102, # 69 Redacted Document Attachment 103, # 70 Redacted Document Attachment 103-B, # 71 Redacted Document Attachment 104, # 72 Unredacted Document Attachment 104.1, # 73 Unredacted Document Attachment 104.2, # 74 Unredacted Document Attachment 104.3, # 75 Unredacted Document Attachment 105, # 76 Unredacted Document Attachment 106, # 77 Unredacted Document Attachment 107, # 78 Unredacted Document Attachment 108, # 79 Unredacted Document Attachment 109, # 80 Unredacted Document Attachment 110, # 81 Unredacted Document Attachment 111, # 82 Unredacted Document Attachment 112, # 83 Unredacted Document Attachment 113, # 84 Unredacted Document Attachment 114, # 85 Unredacted Document Attachment 115, # 86 Unredacted Document Attachment 116, # 87 Unredacted Document Attachment 117, # 88 Unredacted Document Attachment 118, # 89 Unredacted Document Attachment 119, # 90 Unredacted Document Attachment 120, # 91 Unredacted Document Attachment 121, # 92 Unredacted Document Attachment 122, # 93 Unredacted Document Attachment 123, # 94 Unredacted Document Attachment 124, # 95 Unredacted Document Attachment 125, # 96 Unredacted Document Attachment 126, # 97 Unredacted Document Attachment 127, # 98 Unredacted Document Attachment 128, # 99 Unredacted Document Attachment 129, # 100 Unredacted Document Attachment 130, # 101 Unredacted Document Attachment 131, # 102 Unredacted Document Attachment 132, # 103 Unredacted Document Attachment 133, # 104 Unredacted Document Attachment 133.1, # 105 Unredacted Document Attachment 133.2, # 106 Unredacted Document Attachment 133.3, # 107 Unredacted Document Attachment 133.4, # 108 Unredacted Document Attachment 133.5, # 109 Unredacted Document Attachment 133.6, # 110 Unredacted Document Attachment 133.7, # 111 Redacted Document Attachment 133.8, # 112 Unredacted Document Attachment 133.9, # 113 Unredacted Document Attachment 133.10, # 114 Unredacted Document Attachment 133.11, # 115 Unredacted

Document Attachment 133.12, # 116 Unredacted Document Attachment 133.13, # 117 Unredacted Document Attachment 133.14, # 118 Unredacted Document Attachment 133.15, # 119 Unredacted Document Attachment 133.16, # 120 Unredacted Document Attachment 133.17, # 121 Unredacted Document Attachment 133.18, # 122 Unredacted Document Attachment 133.19, # 123 Unredacted Document Attachment 133.20, # 124 Unredacted Document Attachment 133.21, # 125 Unredacted Document Attachment 133.22, # 126 Unredacted Document Attachment 133.23, # 127 Unredacted Document Attachment 133.24, # 128 Unredacted Document Attachment 133.25, # 129 Unredacted Document Attachment 133.26, # 130 Unredacted Document Attachment 133.27, # 131 Unredacted Document Attachment 133.28, # 132 Unredacted Document Attachment 133.41, # 133 Unredacted Document Attachment 134, # 134 Unredacted Document Attachment 135, # 135 Unredacted Document Attachment 136, # 136 Unredacted Document Attachment 137, # 137 Unredacted Document Attachment 138, # 138 Unredacted Document Attachment 139, # 139 Unredacted Document Attachment 140, # 140 Unredacted Document Attachment 141, # 141 Unredacted Document Attachment 142, # 142 Unredacted Document Attachment 143, # 143 Unredacted Document Attachment 144, # 144 Unredacted Document Attachment 145, # 145 Unredacted Document Attachment 62)(Havens, Betsy) (Entered: 09/07/2016)

09/16/2016

198 STATEMENT of Second Supplemental Statement of Interest of the United States of America Third NOTICE OF MOTION AND MOTION for Summary Judgment Or in the Alternative, Partial Summary Judgment, or in the Alternative, for an Order Treating Specified Facts as Established 193 filed by Interested Party United States of America. (Attorney Joanna Berney Hull added to party United States of America(pty:ip))(Hull, Joanna) (Entered: 09/16/2016)

09/19/2016

199 RESPONSE IN SUPPORT of Third NOTICE OF MOTION AND MOTION for Summary Judgment Or in the Alternative, Partial Summary Judgment, or in the Alternative, for an Order Treating Specified Facts as Established 193 SUPPLEMENTAL MEMO filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Gershon, Elissa) (Entered: 09/19/2016)

09/19/2016

200 RESPONSE filed by Defendants Jennifer Kent, State of California Department of Health Care Services Defendants' Response to Second Supplemental Statement of Interest (ECF No. 198) (Wang, Kenneth) (Entered: 09/19/2016)

09/20/2016 201 Notice of Appearance or Withdrawal of Counsel: for attorney Betsy Ellen Havens counsel for Plaintiffs Sean Benison, Juan Palomares,

Jerry Thomas. Betsy Havens is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiff Sean Benison, Juan Palomares, and Jerry Thomas. (Havens, Betsy) (Entered: 09/20/2016)

09/26/2016

202 Joint STIPULATION for Court Trial on November 29, 2016 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Proposed Order)(Gershon, Elissa) (Entered: 09/26/2016)

09/28/2016

203 ORDER RE: JOINT SUBMISSION AND FURTHER PROCEEDINGS by Judge Fernando M. Olguin, re Stipulation 202 . This case will proceed as a bench trial, to commence 11/29/2016 at 8:30 AM before Judge Fernando M. Olguin. (vdr) (Entered: 09/28/2016)

10/04/2016

204 TEXT ONLY ENTRY by Chambers of Judge Fernando M. Olguin. On the court's own motion, the Motion for Summary Judgment 193 is taken off the 10/6/2016 calendar and placed under submission. No appearances are required on 10/6/2016. An order with the court's ruling will issue. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (vdr) TEXT ONLY ENTRY (Entered: 10/04/2016)

10/21/2016

205 Witness List filed by Defendants Jennifer Kent, State of California Department of Health Care Services.. (Wang, Kenneth) (Entered: 10/21/2016)

10/21/2016

206 MEMORANDUM of CONTENTIONS of FACT and LAW filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Wang, Kenneth) (Entered: 10/21/2016)

10/21/2016

207 DECLARATION of Rebecca Schupp with CV as Direct Trial Testimony filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Wang, Kenneth) (Entered: 10/21/2016)

10/21/2016

208 DECLARATION of Christine King-Bloomfield as Direct Trial Testimony (Redacted) filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Wang, Kenneth) (Entered: 10/21/2016)

10/21/2016

209 APPENDIX filed by Defendants Jennifer Kent, State of California Department of Health Care Services. Re: Index of Deposition Testimony (Wang, Kenneth) (Entered: 10/21/2016)

10/21/2016

210 NOTICE OF MOTION AND MOTION IN LIMINE (#1) to Preclude Evidence Related to Non-Party NF/AH Waiver Participants and Prospective Participants filed by Defendants Jennifer Kent, State of

California Department of Health Care Services. Motion set for hearing on 11/10/2016 at 10:00 AM before Judge Fernando M. Olguin. (Attachments: # 1 Exhibit - Table of Contents, # 2 Exhibit A - Part 1, # 3 Exhibit A - Part 2, # 4 Exhibit A - Part 3, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E, # 9 Exhibit F, # 10 Exhibit G, # 11 Exhibit H, # 12 Exhibit I, # 13 Exhibit J, # 14 Exhibit K, # 15 Exhibit L, # 16 Exhibit M, # 17 Proposed Order)(Wang, Kenneth) (Entered: 10/21/2016)

10/21/2016

211 NOTICE OF MOTION AND MOTION IN LIMINE (#2) to Exclude Evidence and Argument Related to Plaintiffs' Proposed Due Process Cause of Action filed by Defendants Jennifer Kent, State of California Department of Health Care Services. Motion set for hearing on 11/10/2016 at 10:00 AM before Judge Fernando M. Olguin. (Attachments: # 1 Exhibit - Table of Contents, # 2 Exhibit A - Part 1, # 3 Exhibit A - Part 2, # 4 Exhibit A - Part 3, # 5 Proposed Order)(Wang, Kenneth) (Entered: 10/21/2016)

10/21/2016

212 APPLICATION to file document under seal filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Attachments: # 1 Proposed Order, # 2 Declaration of Kenneth Wang, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6)(Wang, Kenneth) (Entered: 10/21/2016)

10/21/2016

213 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document under seal 212 filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Attachments: # 1 Unredacted Document, # 2 Unredacted Document, # 3 Unredacted Document, # 4 Unredacted Document, # 5 Unredacted Document, # 6 Unredacted Document)(Wang, Kenneth) (Entered: 10/21/2016)

10/21/2016

214 DECLARATION of Katrina Baker as Direct Trial Testimony filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Wang, Kenneth) (Entered: 10/21/2016)

10/21/2016

215 DECLARATION of Lynette Solano as Direct Trial Testimony filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Wang, Kenneth) (Entered: 10/21/2016)

10/21/2016

216 DECLARATION of Leah Greenwood as Direct Trial Testimony filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Wang, Kenneth) (Entered: 10/21/2016)

10/21/2016

217 DECLARATION of Rajiv Dhamija as Direct Trial Testimony filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Wang, Kenneth) (Entered: 10/21/2016)

10/21/2016

218 APPLICATION to file document under seal filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Memorandum Memo of Points and Authorities, # 2 Proposed Order, # 3 Redacted Document Declaration, # 4 Redacted Document Declaration, # 5 Redacted Document Declaration, # 6 Redacted Document Declaration, # 7 Redacted Document Declaration, # 8 Redacted Document Declaration, # 9 Redacted Document Declaration, # 10 Redacted Document Declaration, # 11 Redacted Document Declaration, # 12 Redacted Document Declaration)(Gershon, Elissa) (Entered: 10/21/2016)

10/21/2016

219 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document under seal 218 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Unredacted Document Declaration, # 2 Unredacted Document Declaration, # 3 Unredacted Document Declaration, # 4 Unredacted Document Declaration, # 5 Unredacted Document Declaration, # 6 Unredacted Document Declaration, # 7 Unredacted Document Declaration, # 8 Unredacted Document Declaration, # 9 Unredacted Document Declaration, # 10 Unredacted Document Declaration)(Gershon, Elissa) (Entered: 10/21/2016)

10/21/2016

220 NOTICE OF MOTION AND First MOTION IN LIMINE #1 to Exclude Waiver Amendment and Waiver Renewal filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. Motion set for hearing on 11/10/2016 at 10:00 AM before Judge Fernando M. Olguin. (Attachments: # 1 Exhibit Defs' Exhibits in Opposition, Part 1, # 2 Exhibit Defs' Exhibits in Opposition, Part 2)(Himmelrich, Sue) (Entered: 10/21/2016)

10/21/2016

221 NOTICE OF MOTION AND Second MOTION IN LIMINE to Exclude Late Discovery filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. Motion set for hearing on 11/10/2016 at 10:00 AM before Judge Fernando M. Olguin. (Attachments: # 1 Exhibit Plaintiffs' Exhibits In Support, # 2 Exhibit Defs' Exhibits In Opposition)(Himmelrich, Sue) (Entered: 10/21/2016)

10/21/2016

222 NOTICE OF MOTION AND Third MOTION IN LIMINE to Exclude Exhaustion of Administrative Remedies filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. Motion set for hearing on 11/10/2016 at 10:00 AM before Judge Fernando M. Olguin. (Attachments: # 1 Exhibit Defs' Exhibits in Opposition)(Himmelrich, Sue) (Entered: 10/21/2016)

10/21/2016

223 MEMORANDUM of CONTENTIONS of FACT and LAW filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Himmelrich, Sue) (Entered: 10/21/2016)

10/21/2016 224 Joint PRETRIAL STIPULATION regarding Exhibits Nos. 2 through 211. (Gershon, Elissa) (Entered: 10/21/2016)

10/21/2016 225 Witness List filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas.. (Gershon, Elissa) (Entered: 10/21/2016)

10/21/2016

226 DECLARATION of Beverly Thomas Direct Testimony filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Exhibit A)(Gershon, Elissa) (Entered: 10/21/2016)

10/21/2016

227 DECLARATION of Sean Benison Direct Testimony filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Exhibit A)(Gershon, Elissa) (Entered: 10/21/2016)

10/21/2016

228 DECLARATION of Juan Palomares Direct Testimony filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Exhibit A)(Gershon, Elissa) (Entered: 10/21/2016)

10/21/2016

229 DECLARATION of Dr. Raouf Kayaleh Direct Testimony filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Gershon, Elissa) (Entered: 10/21/2016)

10/21/2016

230 DECLARATION of Dr. Amir Shokrae Direct Testimony filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Gershon, Elissa) (Entered: 10/21/2016)

10/21/2016

231 DECLARATION of Maria Ash, R.N. Direct Testimony filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Gershon, Elissa) (Entered: 10/21/2016)

10/21/2016

232 DECLARATION of Dr. Khozema Campwala Direct Testimony filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Gershon, Elissa) (Entered: 10/21/2016)

10/21/2016

233 DECLARATION of Virginia Montez-Ochoa Rebuttal Testimony filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Gershon, Elissa) (Entered: 10/21/2016)

10/21/2016

234 DECLARATION of Dr. Clarissa Kripke Expert Testimony filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Gershon, Elissa) (Entered: 10/21/2016)

10/21/2016

235 DECLARATION of Charlene Harrington, Ph.D. Expert Testimony filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Gershon, Elissa) (Entered: 10/21/2016)

10/21/2016

236 DECLARATION of Debbie Toth Direct and Rebuttal Testimony filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Gershon, Elissa) (Entered: 10/21/2016)

10/21/2016

237 DECLARATION of Sarah McKinney Direct and Rebuttal Testimony filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Gershon, Elissa) (Entered: 10/21/2016)

10/21/2016

238 DECLARATION of Diane Frank Direct and Rebuttal Testimony filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Gershon, Elissa) (Entered: 10/21/2016)

10/21/2016

239 DECLARATION of Gayle Black Direct and Rebuttal Testimony filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Gershon, Elissa) (Entered: 10/21/2016)

10/21/2016

240 DECLARATION of Linda Oleson Direct and Rebuttal Testimony filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Gershon, Elissa) (Entered: 10/21/2016)

10/21/2016

241 APPENDIX filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. Re: Index of Deposition Designations (Gershon, Elissa) (Entered: 10/21/2016)

10/24/2016

242 PROOF OF SERVICE filed by Plaintiff Sean Benison, Juan Palomares, Jerry Thomas, re Sealed Declaration in SupportDeclaration,, 219 served on 10/24/2016. (Gershon, Elissa) (Entered: 10/24/2016)

10/24/2016

243 NOTICE OF LODGING filed in re Sealed Declaration in SupportDeclaration, 213 , APPLICATION to file document under seal 218 , APPLICATION to file document under seal 212 , Sealed Declaration in SupportDeclaration,, 219 (Attachments: # 1 Exhibit Court Order Re Jt Submission and Further Proceedings dtd 2016Sept28)(Gershon, Elissa) (Entered: 10/24/2016)

10/24/2016

244 ORDER GRANTING PLAINTIFFS' APPLICATION 218 TO FILE DOCUMENTS UNDER SEAL by Judge Fernando M. Olguin. (jloz) (Entered: 10/24/2016)

10/24/2016 245 ORDER GRANTING APPLICATION 212 TO SEAL by Judge Fernando M. Olguin. (vdr) (Entered: 10/24/2016)

10/24/2016

246 NOTICE OF LODGING filed (Manual Lodging) in re Order, Set/Reset Hearing 203 (Attachments: # 1 Exhibit ECF No. 203)(Gershon, Elissa) (Entered: 10/24/2016)

10/24/2016

247 NOTICE OF ERRATA filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. correcting Notice of Lodging, 243 (Gershon, Elissa) (Entered: 10/24/2016)

10/25/2016

248 SEALED DOCUMENT Declaration of Benison UNREDACTED re APPLICATION to file document under seal 218 , Order on Motion for Leave to File Document Under Seal 244 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas.(Gershon, Elissa) (Entered: 10/25/2016)

10/25/2016

249 SEALED DOCUMENT Declaration of Palomares UNREDACTED re APPLICATION to file document under seal 218 , Order on Motion for Leave to File Document Under Seal 244 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas.(Gershon, Elissa) (Entered: 10/25/2016)

10/25/2016

250 SEALED DOCUMENT Declaration of Thomas UNREDACTED re APPLICATION to file document under seal 218 , Order on Motion for Leave to File Document Under Seal 244 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas.(Gershon, Elissa) (Entered: 10/25/2016)

10/25/2016

251 SEALED DOCUMENT Declaration of Oleson UNREDACTED re APPLICATION to file document under seal 218 , Order on Motion for Leave to File Document Under Seal 244 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas.(Gershon, Elissa) (Entered: 10/25/2016)

10/25/2016

252 SEALED DOCUMENT Declaration of Kayaleh UNREDACTED re APPLICATION to file document under seal 218 , Order on Motion for Leave to File Document Under Seal 244 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas.(Gershon, Elissa) (Entered: 10/25/2016)

10/25/2016

253 SEALED DOCUMENT Declaration of Shokrae UNREDACTED re APPLICATION to file document under seal 218 , Order on Motion for Leave to File Document Under Seal 244 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas.(Gershon, Elissa) (Entered: 10/25/2016)

10/25/2016

254 SEALED DOCUMENT Declaration of Ash UNREDACTED re APPLICATION to file document under seal 218 , Order on Motion for Leave to File Document Under Seal 244 filed by Plaintiffs Sean

Benison, Juan Palomares, Jerry Thomas.(Gershon, Elissa) (Entered: 10/25/2016)

10/25/2016

255 SEALED DOCUMENT Declaration of Campwala UNREDACTED re APPLICATION to file document under seal 218 , Order on Motion for Leave to File Document Under Seal 244 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas.(Gershon, Elissa) (Entered: 10/25/2016)

10/25/2016

256 SEALED DOCUMENT Declaration of Kripke UNREDACTED re APPLICATION to file document under seal 218 , Order on Motion for Leave to File Document Under Seal 244 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas.(Gershon, Elissa) (Entered: 10/25/2016)

10/25/2016

257 SEALED DOCUMENT Declaration of Black UNREDACTED re APPLICATION to file document under seal 218 , Order on Motion for Leave to File Document Under Seal 244 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas.(Gershon, Elissa) (Entered: 10/25/2016)

10/25/2016

258 NOTICE OF MOTION AND First MOTION IN LIMINE (#1) to Exclude Unapproved Waiver Amendment and Renewal (Corrected TOA) filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. Motion set for hearing on 11/10/2016 at 10:00 AM before Judge Fernando M. Olguin.(Himmelrich, Sue) (Entered: 10/25/2016)

10/25/2016

259 NOTICE OF MOTION AND Second MOTION IN LIMINE (#2) to Exclude Late Produced Evidence (Corrected TOA) filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. Motion set for hearing on 11/10/2016 at 10:00 AM before Judge Fernando M. Olguin.(Himmelrich, Sue) (Entered: 10/25/2016)

10/25/2016

260 NOTICE OF MOTION AND Third MOTION IN LIMINE (#3) to Exclude Evidence Re: Exhaustion (Corrected TOA) filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. Motion set for hearing on 11/10/2016 at 10:00 AM before Judge Fernando M. Olguin.(Himmelrich, Sue) (Entered: 10/25/2016)

10/25/2016

261 NOTICE OF ERRATA filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. correcting First MOTION IN LIMINE #1 to Exclude Waiver Amendment and Waiver Renewal 220 (Gershon, Elissa) (Entered: 10/25/2016)

10/25/2016

262 NOTICE OF ERRATA filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. correcting Second MOTION IN LIMINE to Exclude Late Discovery 221 (Gershon, Elissa) (Entered: 10/25/2016)

10/25/2016

263 NOTICE OF ERRATA filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. correcting Third MOTION IN LIMINE to Exclude Exhaustion of Administrative Remedies 222 (Gershon, Elissa) (Entered: 10/25/2016)

10/25/2016

264 APPENDIX filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. Re: Index of Deposition Designations (Gershon, Elissa) (Entered: 10/25/2016)

10/25/2016

265 NOTICE OF ERRATA filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. correcting Appendix 241 Index of Deposition Designations (Gershon, Elissa) (Entered: 10/25/2016)

10/25/2016

266 PROOF OF SERVICE filed by Plaintiff Sean Benison, Juan Palomares, Jerry Thomas, re Sealed Declaration in SupportDeclaration,, 219 Proof of Service of Documents Filed Under Seal served on 10/25/2016. (Gershon, Elissa) (Entered: 10/25/2016)

10/26/2016

267 SEALED MEMORANDUM OF CONTENTIONS OF FACT AND LAW re Order on Motion for Leave to File Document Under Seal 245 filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Wang, Kenneth) Modified on 10/26/2016 (vdr). (Entered: 10/26/2016)

10/26/2016

268 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document under seal 212 filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Attachments: # 1 Declaration of Katrina Baker, # 2 Declaration of Leah Greenwood, # 3 Declaration of Lynette Solano, # 4 Declaration of Rajiv Dhamija, M.D.)(Wang, Kenneth) (Entered: 10/26/2016)

10/26/2016

269 SEALED DOCUMENT UNREDACTED DECLARATION OF CHRISTINE KING BROOMFIELD re Order on Motion for Leave to File Document Under Seal 245 filed by Defendants Jennifer Kent, State of California Department of Health Care Services.(Wang, Kenneth) (Entered: 10/26/2016)

10/26/2016

270 SEALED DOCUMENT UNREDACTED DECLARATION OF DEFENDANTS' EXPERT, RAJIV DHAMIJA, M.D. re Order on Motion for Leave to File Document Under Seal 245 filed by Defendants Jennifer Kent, State of California Department of Health Care Services.(Wang, Kenneth) (Entered: 10/26/2016)

10/26/2016

271 SEALED DOCUMENT UNREDACTED DECLARATION OF KATRINA BAKER re Order on Motion for Leave to File Document Under Seal 245 filed by Defendants Jennifer Kent, State of California

Department of Health Care Services.(Wang, Kenneth) (Entered: 10/26/2016)

10/26/2016

272 SEALED DOCUMENT UNREDACTED DECLARATION OF LEAH GREENWOOD re Order on Motion for Leave to File Document Under Seal 245 filed by Defendants Jennifer Kent, State of California Department of Health Care Services.(Wang, Kenneth) (Entered: 10/26/2016)

10/26/2016

273 SEALED DOCUMENT UNREDACTED DECLARATION OF LYNETTE SOLANO re Order on Motion for Leave to File Document Under Seal 245 filed by Defendants Jennifer Kent, State of California Department of Health Care Services.(Wang, Kenneth) (Entered: 10/26/2016)

10/26/2016

274 TEXT ONLY ENTRY by Chambers of Judge Fernando M. Olguin. Pursuant to the Notices of Errata 261 , 262 and 263 , the Motions in Limine 220 , 221 and 222 are hereby deemed moot. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (vdr) TEXT ONLY ENTRY (Entered: 10/26/2016)

10/26/2016

275 PROOF OF SERVICE filed by Defendants Jennifer Kent, State of California Department of Health Care Services, of Documents Filed Under Seal served on October 26, 2016. (Wang, Kenneth) (Entered: 10/26/2016)

10/28/2016

276 REPLY RE MOTION IN LIMINE (#1) to Exclude Unapproved Waiver Amendment and Renewal Reply In Support filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Himmelrich, Sue) Modified on 10/31/2016 (vdr). (Entered: 10/28/2016)

10/28/2016

277 REPLY RE MOTION IN LIMINE (#2) to Exclude Late Produced Evidence Reply In Support filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Himmelrich, Sue) Modified on 10/31/2016 (vdr). (Entered: 10/28/2016)

10/28/2016

278 REPLY RE MOTION IN LIMINE (#3) to Exclude Evidence re: Exhaustion Reply In Support filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Himmelrich, Sue) Modified on 10/31/2016 (vdr). (Entered: 10/28/2016)

10/28/2016

279 REPLY in Support of MOTION IN LIMINE (#1) to Preclude Evidence Related to Non-Party NF/AH Waiver Participants and Prospective Participants 210 filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Wang, Kenneth) (Entered: 10/28/2016)

10/28/2016

280 REPLY in Support of MOTION IN LIMINE (#2) to Exclude Evidence and Argument Related to Plaintiffs' Proposed Due Process Cause of Action 211 filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Wang, Kenneth) (Entered: 10/28/2016)

10/28/2016

281 OBJECTIONS to Appendix 241 Plaintiffs' Deposition Designations filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Wang, Kenneth) (Entered: 10/28/2016)

10/28/2016

282 STATEMENT Opening Statement filed by Defendants Jennifer Kent, State of California Department of Health Care Services (Wang, Kenneth) (Entered: 10/28/2016)

10/28/2016

283 OBJECTIONS TO PLAINTIFFS' DECLARATION TESTIMONY filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Wang, Kenneth) (Entered: 10/28/2016)

10/28/2016

284 APPLICATION to file document DEFENDANTS OBJECTIONS TO PLAINTIFFS DECLARATION TESTIMONY; DEFENDANTS PROPOSED FINDINGS OF FACT AND LAW, AND DEFENDANTS OPENING STATEMENT under seal filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Attachments: # 1 Proposed Order, # 2 Declaration Kenneth K. Wang, # 3 Redacted Document Objections to Plaintiffs' Declaration Testimony, # 4 Redacted Document Defendants' Opening Statement, # 5 Redacted Document Defendants' Proposed Findings of Fact and Law)(Wang, Kenneth) (Entered: 10/28/2016)

10/28/2016

285 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document DEFENDANTS OBJECTIONS TO PLAINTIFFS DECLARATION TESTIMONY; DEFENDANTS PROPOSED FINDINGS OF FACT AND LAW, AND DEFENDANTS OPENING STATEMENT under seal 284 filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Attachments: # 1 Unredacted Document Objections to Plaintiffs' Declaration Testimony, # 2 Unredacted Document Defendants' Opening Statement, # 3 Unredacted Document Defendants' Proposed Findings of Fact and Law)(Wang, Kenneth) (Entered: 10/28/2016)

10/28/2016

286 NOTICE OF LODGING filed Defendants' Proposed Findings of Fact and Law re Memorandum of Contentions of Fact and Law 206 (Attachments: # 1 Defendants' Proposed Findings of Fact and Law)(Wang, Kenneth) (Entered: 10/28/2016)

10/28/2016 287 STATEMENT Plaintiffs' Opening Statement filed by Plaintiff Jerry Thomas (Gershon, Elissa) (Entered: 10/28/2016)

10/28/2016

288 OBJECTIONS to Defendants' Deposition Designations for Trial filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Gershon, Elissa) (Entered: 10/28/2016)

10/28/2016

289 OBJECTIONS to Defendants' Trial Declarations filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Gershon, Elissa) (Entered: 10/28/2016)

10/28/2016

290 NOTICE OF LODGING filed Parties' Proposed Final Pretrial Conference Order re Order, Set/Reset Hearing 203 (Attachments: # 1 Proposed Order)(Gershon, Elissa) (Entered: 10/28/2016)

10/28/2016

291 NOTICE OF LODGING filed Plaintiffs' Proposed Findings of Fact and Conclusions of Law re Memorandum of Contentions of Fact and Law 223 (Attachments: # 1 Proposed Order)(Gershon, Elissa) (Entered: 10/28/2016)

10/31/2016

292 MINUTE ORDER IN CHAMBERS by Judge Fernando M. Olguin. The pretrial conference, and all other dates including the trial date, are hereby vacated pending the court's ruling on the pending motion for summary judgment 193 . (vdr) (Entered: 10/31/2016)

10/31/2016

293 ORDER GRANTING DEFENDANTS' APPLICATION 284 by Judge Fernando M. Olguin, to file documents under seal. (vdr) (Entered: 10/31/2016)

11/01/2016

294 SEALED DOCUMENT DEFENDANTS' OBJECTIONS TO PLAINTIFFS' DECLARATION TESTIMONY re Order on Motion for Leave to File Document Under Seal 293 filed by Defendants Jennifer Kent, State of California Department of Health Care Services.(Wang, Kenneth) (Entered: 11/01/2016)

11/01/2016

295 SEALED DOCUMENT DEFENDANTS' PROPOSED FINDINGS OF FACT AND LAW re Order on Motion for Leave to File Document Under Seal 293 filed by Defendants Jennifer Kent, State of California Department of Health Care Services.(Wang, Kenneth) (Entered: 11/01/2016)

11/01/2016

296 SEALED DOCUMENT DEFENDANTS' OPENING STATEMENT re Order on Motion for Leave to File Document Under Seal 293 filed by Defendants Jennifer Kent, State of California Department of Health Care Services.(Wang, Kenneth) (Entered: 11/01/2016)

11/01/2016

297 PROOF OF SERVICE filed by Defendants Jennifer Kent, State of California Department of Health Care Services, served on November 1, 2016. (Wang, Kenneth) (Entered: 11/01/2016)

11/04/2016

298 [STRICKEN BY THE COURT] SUPPLEMENT filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Attachments: # 1 Exhibit 1 - Part 1, # 2 Exhibit 1 - Part 2, # 3 Exhibit 2)(Wang, Kenneth) Modified on 11/8/2016 (jloz). (Entered: 11/04/2016)

11/04/2016

299 REDACTED FILING filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas New Filing of Attachment 98 re: Declaration (Motion related),,,,,,,,,,,,,,,,,,,,,,,,,, 197 (Hadreas, Anne) (Entered: 11/04/2016)

11/04/2016

300 EX PARTE APPLICATION for Order for To Seal Mistakenly Unredacted Document ECF No. 197-64 filed by PLAINTIFFS Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Declaration, # 2 Proposed Order) (Hadreas, Anne) (Entered: 11/04/2016)

11/07/2016

301 ORDER GRANTING Plaintiffs Ex Parte Application 300 Seeking an Order to Seal Inadvertently Unredacted Document (ECF No. 197-64) by Judge Fernando M. Olguin, this Court having considered Plaintiffs' Ex Parte Application Seeking an Order to Seal Inadvertently Unredacted Document (ECF No. 197-64), and good cause appearing, this Court finds that the following compelling reasons exist to seal the document contained in Plaintiffs application: to protect the privacy of the plaintiffs and to comply with Local Rule 5.2-1. IT IS THEREFORE ORDERED that ECF No.197-64 be sealed. (jp) (Entered: 11/07/2016)

11/07/2016

302 EX PARTE APPLICATION to Strike Supplement 298 Defendants' New Information filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Declaration of Elissa Gershon, # 2 Proposed Order Granting Application to Strike or in the Alternative, Respond to Defendants' New Information) (Gershon, Elissa) (Entered: 11/07/2016)

11/08/2016

303 ORDER RE: SUPPLEMENTAL FILING by Judge Fernando M. Olguin. IT IS ORDERED THAT defendants' New Information Related to the Case: Nursing Facility/Acute Hospital Waiver Amendment Approval (Document No. 298) is stricken. (jloz) (Entered: 11/08/2016)

11/09/2016

304 MINUTE ORDER IN CHAMBERS RE: EX PARTE APPLICATION 302 by Judge Fernando M. Olguin. The ex parte application is denied as moot. (vdr) (Entered: 11/09/2016)

11/18/2016 305 EX PARTE APPLICATION to Notify the Court of New Authority, Inform the Court of Prior Facts and Statements that are No Longer

Accurate, to Modify Those Facts and Statements Accordingly, and to Request Judicial Notice of the Waiver Amendment Approval filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Attachments: # 1 Declaration of Kenneth K. Wang, # 2 Exhibit 1-A, # 3 Exhibit 1-B, # 4 Exhibit 2, # 5 Proposed Order, # 6 Proof of Service) (Wang, Kenneth) (Entered: 11/18/2016)

11/21/2016

306 OPPOSITION re: EX PARTE APPLICATION to Notify the Court of New Authority, Inform the Court of Prior Facts and Statements that are No Longer Accurate, to Modify Those Facts and Statements Accordingly, and to Request Judicial Notice of the Waiver Amendment Approval 305 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Gershon, Elissa) (Entered: 11/21/2016)

11/21/2016

307 DECLARATION of ELISSA GERSHON IN OPPOSITION TO EX PARTE APPLICATION to Notify the Court of New Authority, Inform the Court of Prior Facts and Statements that are No Longer Accurate, to Modify Those Facts and Statements Accordingly, and to Request Judicial Notice of the Waiver Amendment Approval 305 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Gershon, Elissa) (Entered: 11/21/2016)

12/08/2016

308 NOTICE TO PARTIES by District Judge Fernando M. Olguin. Effective December 15, 2016, Judge Olguin will be located at the 1st Street Courthouse, COURTROOM 6D on the 6th floor, located at 350 W. 1st Street, Los Angeles, California 90012. All Court appearances shall be made in Courtroom 6D of the 1st Street Courthouse, and all mandatory chambers copies shall be hand delivered to the judge's mail box outside the Clerk's Office on the 4th floor of the 1st Street Courthouse. The location for filing civil documents in paper format exempted from electronic filing and for viewing case files and other records services remains at the United States Courthouse, 312 North Spring Street, Room G-8, Los Angeles, California 90012. The location for filing criminal documents in paper format exempted from electronic filing remains at Edward R. Roybal Federal Building and U.S. Courthouse, 255 East Temple Street, Room 178, Los Angeles, California 90012. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (rrp) TEXT ONLY ENTRY (Entered: 12/08/2016)

03/17/2017

309 APPLICATION to file document Exhibit A and Exhibit D to Plaintiffs' Ex Parte Application for Expedited Ruling on MSJ under seal filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Memorandum Memorandum of P&A, # 2 Exhibit Attachment A Protective Order, # 3 Redacted Document Exhibit A 2015 Report

Redacted, # 4 Redacted Document Exhibit D 2016 Report Redacted, # 5 Proposed Order Proposed Order)(Gershon, Elissa) (Entered: 03/17/2017)

03/17/2017

310 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document Exhibit A and Exhibit D to Plaintiffs' Ex Parte Application for Expedited Ruling on MSJ under seal 309 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Unredacted Document Exhibit A 2015 Report Unredacted, # 2 Unredacted Document Exhibit D 2016 Report Unredacted)(Gershon, Elissa) (Entered: 03/17/2017)

03/20/2017

311 EX PARTE APPLICATION to Expedite Ruling on Motion for Summary Judgment filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Declaration of Beverly Thomas, # 2 Proposed Order Granting Plaintiffs' Ex Parte Application for Expedited Ruling on MSJ) (Gershon, Elissa) (Entered: 03/20/2017)

03/20/2017

312 DECLARATION of Elissa Gershon In Support of EX PARTE APPLICATION to Expedite Ruling on Motion for Summary Judgment 311 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Exhibit A 2015 Report Redacted, # 2 Exhibit B Letter and Email, # 3 Exhibit C Letter, # 4 Exhibit D 2016 Report Redacted)(Gershon, Elissa) (Entered: 03/20/2017)

03/20/2017

313 PROOF OF SERVICE filed by Plaintiff Sean Benison, Juan Palomares, Jerry Thomas, re Sealed Declaration in SupportDeclaration, 310 Proof of Service of Documents Filed with Application to File Documents Under Seal served on 03/20/2017. (Gershon, Elissa) (Entered: 03/20/2017)

03/20/2017 314 ORDER GRANTING PLAINTIFFS' APPLICATION 309 by Judge Fernando M. Olguin. (vdr) (Entered: 03/20/2017)

03/21/2017

315 Opposition to Ex Parte Application for Expedited Ruling on Plaintiffs' Pending Motion for Summary Judgment re: EX PARTE APPLICATION to Expedite Ruling on Motion for Summary Judgment 311 filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Wang, Kenneth) (Entered: 03/21/2017)

03/21/2017

316 Declaration of Leah Greenwood re: EX PARTE APPLICATION to Expedite Ruling on Motion for Summary Judgment 311 in Support of Defendants' Opposition filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Wang, Kenneth) (Entered: 03/21/2017)

03/21/2017

317 Declaration of Jacey Cooper re: EX PARTE APPLICATION to Expedite Ruling on Motion for Summary Judgment 311 in Support of Defendants' Opposition to Plaintiffs' Ex Parte Application for Expedited Ruling on Plaintiffs' Pending Motion for Summary Judgment filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Wang, Kenneth) (Entered: 03/21/2017)

03/21/2017

318 re: EX PARTE APPLICATION to Expedite Ruling on Motion for Summary Judgment 311 Declaration of Kenneth K. Wang in Support of Defendants' Opposition to Plaintiffs' Ex Parte Application for Expedited Ruling filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Wang, Kenneth) (Entered: 03/21/2017)

03/21/2017

319 re: EX PARTE APPLICATION to Expedite Ruling on Motion for Summary Judgment 311 Proof of Service filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Wang, Kenneth) (Entered: 03/21/2017)

03/21/2017

320 SEALED DOCUMENT Exhibits A and D to Gershon Declaration in Support of Plaintiffs' Ex Parte Application for Expedited Ruling on MSJ re Order on Motion for Leave to File Document Under Seal 314 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Exhibit A 2015 Report Unredacted, # 2 Exhibit D 2016 Report Unredacted)(Gershon, Elissa) (Entered: 03/21/2017)

03/21/2017

321 PROOF OF SERVICE filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas, re Sealed Document, 320 Declaration of Gershon, Exhibits A and D, Notice of Electronic Filing served on March 21, 2017. (Gershon, Elissa) (Entered: 03/21/2017)

06/05/2017

322 ORDER RE: PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT by Judge Fernando M. Olguin. Plaintiffs' Motion for Summary Judgment is denied. Defendants Ex Parte Application 305 is granted. Plaintiffs' Ex Parte Application 311 is denied as moot. (vdr) (Entered: 06/05/2017)

06/06/2017

323 TEXT ONLY ENTRY by Chambers of Judge Fernando M. Olguin. The court sets a Status Conference for 6/22/2017 at 10:00 AM before Judge Fernando M. Olguin. Lead counsel are ordered to be present for the hearing.THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (vdr) TEXT ONLY ENTRY (Entered: 06/06/2017)

06/13/2017 324 Notice of Appearance or Withdrawal of Counsel: for attorney Kenneth Kai-Chun Wang counsel for Defendants Jennifer Kent, State of

California Department of Health Care Services. Michael Thomas Guitar is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Defendant Kenneth K. Wang. (Wang, Kenneth) (Entered: 06/13/2017)

06/16/2017 325 STATEMENT Status Conference filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas (Gershon, Elissa) (Entered: 06/16/2017)

06/16/2017

326 STATUS REPORT DEFENDANTS' STATUS CONFERENCE STATEMENT filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Wang, Kenneth) (Entered: 06/16/2017)

06/22/2017

327 MINUTES OF Status Conference held before Judge Fernando M. Olguin: Court and counsel confer regarding the case. A separate order will issue.The Court sets a further Status Conference for December 7, 2017 at 10:00 a.m. before Judge Fernando M. Olguin. Court Reporter: Lisa Gonzalez. (cw) (Entered: 06/23/2017)

06/26/2017

328 MINUTE ORDER IN CHAMBERS by Judge Fernando M. Olguin. *See order for deadlines and requirements.* (vdr) (Entered: 06/26/2017)

06/28/2017

329 Defendant's Proposed Magistrate Judges for Settlement Conference filed by Defendants Jennifer Kent, State of California Department of Health Care Services re: Minutes of In Chambers Order/Directive - no proceeding held 328 (Wang, Kenneth) (Entered: 06/28/2017)

06/28/2017

330 List of Proposed Magistrate Judges for Settlement filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas re: Minutes of In Chambers Order/Directive - no proceeding held 328 (Gershon, Elissa) (Entered: 06/28/2017)

06/29/2017

331 MINUTE ORDER IN CHAMBERS by Judge Fernando M. Olguin: The parties shall conduct their settlement proceedings before the Hon. Judge Jay Gandhi no later than 10/31/2017. *See Order for details.* (cw) (Entered: 06/29/2017)

08/03/2017

332 (IN CHAMBERS) ORDER REGARDING SETTLEMENT CONFERENCE by Magistrate Judge Jay C. Gandhi. IT IS ORDERED as follows: The parties and their lead trial counsel shall appear for a settlement conference on October 31, 2017 at 10:00 a.m., in Courtroom 6A of the Ronald Reagan Federal Building and U.S. Courthouse, 411 West Fourth Street, 6th Floor, Santa Ana, California 92701. The parties and their lead trial counsel shall keep their schedule clear for the remaining part of the day. No party or counsel shall be excused absent leave from the Judge or until the settlement conference is adjourned. On

or before October 24, 2017, each party shall submit a confidential mediation statement (or email) directly to the chambers of the Court at judge_gandhi_mediation@cacd.uscourts.gov. The Statements should not be filed with the Clerk of the Court, and they will not be made part of the case file. (kh) (Entered: 08/03/2017)

10/20/2017

333 Joint STIPULATION to Continue Discovery Cutoff Date and Case Timelines from October 31, 2017 to November 30, 2017 Re: Minutes of In Chambers Order/Directive - no proceeding held 328 filed by Defendants State of California Department of Health Care Services. (Attachments: # 1 Proposed Order re Stipulation Extending Discovery Cutoff Date and Case Timelines)(Wang, Kenneth) (Entered: 10/20/2017)

10/24/2017 334 ORDER RE: STIPULATION 333 by Judge Fernando M. Olguin. *See order for continued dates and deadlines.* (vdr) (Entered: 10/24/2017)

10/26/2017

335 TEXT ONLY SCHEDULING NOTICE by Magistrate Judge Alicia G. Rosenberg. Upon the parties request, the Court schedules a Telephonic Discovery Conference for November 1, 2017 at 2:00 PM before Magistrate Judge Alicia G. Rosenberg. Counsel are to file a Joint Report listing each motion at issue and to attach the Rule 30(b)(6) Notice at issue no later than October 31, 2017. The call-in information is as follows: Call-in Number: (213) 894-8506; Conference Password: 126058#. If counsel have any problems connecting to this call, please contact the IT Help Desk at (213) 894-6133. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (kl) TEXT ONLY ENTRY (Entered: 10/26/2017)

10/30/2017

336 REPORT of Joint Report for the Discovery Conference on November 1, 2017 with the Honorable Alicia Rosenberg filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Wang, Kenneth) Modified on 12/22/2017 (mp). (Entered: 10/30/2017)

11/01/2017

337 Defendants' Request to Cancel the Discovery Conference Scheduled for November 1, 2017, at 2:00 p.m. (Wang, Kenneth) (Entered: 11/01/2017)

11/13/2017

338 Joint STIPULATION for Order to Further Extend the Case Deadlines Due to Possible Settlement filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Attachments: # 1 Proposed Order)(Wang, Kenneth) (Entered: 11/13/2017)

11/15/2017

339 ORDER RE: STIPULATION 338 by Judge Fernando M. Olguin. The Status Conference is hereby continued to 3/8/2018 at 10:00 AM before Judge Fernando M. Olguin. *See order for continued deadlines and requirements.* (vdr) (Entered: 11/15/2017)

12/12/2017

340 TEXT ONLY SCHEDULING NOTICE by Magistrate Judge Alicia G. Rosenberg re: Report 336 . Upon the parties request, the Court schedules a telephonic discovery conference for 12/15/2017 at 03:30 PM before Magistrate Judge Alicia G. Rosenberg. The call-in information is as follows: Call-in Number: (877) 810-9415; Access code: 2244923#. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (mp) TEXT ONLY ENTRY (Entered: 12/12/2017)

12/15/2017

341 MINUTES OF Discovery Hearing held before Magistrate Judge Alicia G. Rosenberg. TELEPHONIC DISCOVERY HEARING. The hearing is held. The Court hears oral arguments as reflected on the record. The discovery conference is continued to December 22, 2017 at 9:30 a.m. The call-in information is as follows: Call-in Number: (877) 848-7030; Access Code: 5141761#. Court Recorder: CS 12/15/2017. (mp) (Entered: 12/19/2017)

12/22/2017

342 MINUTES OF granting in part and denying in part 336 MOTION for Protective Order; Discovery Hearing held before Magistrate Judge Alicia G. Rosenberg. DEFENDANTS' REQUEST FOR PROTECTIVE ORDER (Dkt. No. 336). IT IS ORDERED that Defendants' motion for protective order is GRANTED IN PART AND DENIED IN PART as follows: (See Order for details.) Court Recorder: CS 12/22/2017. (mp) (Entered: 12/22/2017)

01/12/2018

343 EX PARTE APPLICATION to Dismiss Case for Order Dismissing the Second Amended Complaint as Moot or, in the Alternative, Order Shortening Time to Hear Defendants' Motion to Dismiss filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration of Kenneth K. Wang, # 3 Declaration of Jacey Cooper, # 4 Proposed Order, # 5 Proof of Service) (Wang, Kenneth) (Entered: 01/12/2018)

01/16/2018

344 MEMORANDUM in Opposition to EX PARTE APPLICATION to Dismiss Case for Order Dismissing the Second Amended Complaint as Moot or, in the Alternative, Order Shortening Time to Hear Defendants' Motion to Dismiss 343 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Declaration Declaration of Elissa Gershon ISO with Exhibits A-H)(Gershon, Elissa) (Entered: 01/16/2018)

01/16/2018

345 DENIED BY ORDER OF THE COURT by Judge Fernando M. Olguin re Defendants EX PARTE APPLICATION 343 . (jp) (Entered: 01/16/2018)

02/07/2018

346 NOTICE of Voluntary Dismissal filed by Defendants Jennifer Kent, State of California Department of Health Care Services. Dismissal is without. (Attachments: # 1 Proposed Order re Stipulation of Dismissal)(Wang, Kenneth) (Entered: 02/07/2018)

02/09/2018

347 MINUTE ORDER IN CHAMBERS by Judge Fernando M. Olguin. The court sets a Status Conference for 2/22/2018 at 10:00 AM before Judge Fernando M. Olguin. (vdr) (Entered: 02/09/2018)

02/12/2018

348 STATEMENT RE STATUS CONFERENCE AND REQUEST FOR BIFURCATION OF MOTION AND BRIEFING SCHEDULE ON PLAINTIFFS MOTION FOR REASONABLE ATTORNEYS FEES AND COSTS filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas re: Minutes of In Chambers Order/Directive - no proceeding held, Set/Reset Hearing 347 . (Attachments: # 1 Declaration and Exhibits A-H)(Gershon, Elissa) (Entered: 02/12/2018)

02/16/2018

349 STATEMENT Defendants' Statement for the Status Conference on February 22, 2018 filed by Defendants Jennifer Kent, State of California Department of Health Care Services (Wang, Kenneth) (Entered: 02/16/2018)

02/22/2018

350 MINUTES OF STATUS CONFERENCE held before Judge Fernando M. Olguin: Court and counsel confer regarding 346 . The court requires supplemental briefing. The court will issue a separate briefing schedule to address the attorney's fees and costs issues raised by the parties. Court Reporter: Maria Bustillos. (rfi) (Entered: 02/22/2018)

02/26/2018

351 MINUTE ORDER IN CHAMBERS RE: BRIEFING SCHEDULE by Judge Fernando M. Olguin. *See order for deadlines re any motion for attorney's fees. (vdr) (Entered: 02/26/2018)

03/14/2018

352 REQUEST to Dismiss Case Voluntarily without Prejudice pursuant to FRCP 41(a)(2) filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Supplement Petition re Dismissal of Claims re Plaintiff Thomas, # 2 Declaration of Elissa Gershon and Exhibits AC, # 3 Declaration of Beverly Thomas, # 4 Proposed Order) (Gershon, Elissa) (Entered: 03/14/2018)

03/15/2018

353 Defendants' Response to Plaintiffs' Request for Voluntary Dismissal and Objections to the Information Provided in Support of the Voluntary Dismissal re: REQUEST to Dismiss Case Voluntarily without Prejudice pursuant to FRCP 41(a)(2) 352 filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Attachments: # 1 Declaration of Deputy Attorney General Kenneth K. Wang in Support of Defendants' Response to Plaintiffs' Request for Voluntary Dismissal and Objections to the Information Provided in

Support of the Voluntary Dismissal, # 2 Affidavit Proof of Service)(Wang, Kenneth) (Entered: 03/15/2018)

03/16/2018

354 NOTICE OF MOTION AND MOTION to Recover Fees and Costs (filed erroneously as MEMORANDUM in Support Defendants' Notice of and Motion to Recover Fees and Costs) filed by Defendants Jennifer Kent, State of California Department of Health Care Services; set for hearing on 4/26/2018 at 10:00 AM before Judge Fernando M. Olguin. (Attachments: # 1 Declaration of Deputy Attorney General Kenneth K. Wang in Support of Defendants' Motion to Recover Fees and Costs, # 2 Proposed Order For Defendants' Motion to Recover Fees and Costs, # 3 Affidavit Proof of Service)(Wang, Kenneth) Modified on 3/19/2018 (cw). Modified on 3/22/2018 (vdr). (Entered: 03/16/2018)

03/16/2018

355 NOTICE OF MOTION AND MOTION for Attorney Fees Pursuant to C.C.P. 1021.5 and Costs filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. Motion set for hearing on 4/26/2018 at 10:00 AM before Judge Fernando M. Olguin. (Attachments: # 1 Declaration of Elissa Gershon in Support of Fee Motion, # 2 Exhibit A-K to Gershon Declaration, # 3 Exhibit L-U to Gershon Declaration, # 4 Exhibit V to Gershon Declaration, # 5 Exhibit W-Z to Gershon Declaration, # 6 Exhibit AA-MM to Gershon Declaration, # 7 Proposed Order) (Gershon, Elissa) Modified on 3/22/2018 (vdr). (Entered: 03/16/2018)

03/19/2018

356 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Motion for Attorney Fees 354 , 355 . The following error(s) was/were found: Hearing information is not timely. Pursuant to the Courts Procedures and Schedules motion was not noticed for the first available motion date. The Motions have been noticed beyond 35 days. In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. (iv) (Entered: 03/19/2018)

03/19/2018

357 NOTICE OF CLERICAL ERROR: Due to clerical error Re: Deficiency in Electronically Filed Documents (G-112A) - 356 . Motions were noticed properly pursuant to the Court's 2/26/18 Briefing Schedule. (iv) (Entered: 03/19/2018)

03/19/2018

358 ORDER DISMISSING CASE by Judge Fernando M. Olguin: Pursuant to plaintiffs' Notice of Request for Voluntary Dismissal Without Prejudice 352 , the court dismisses all claims, without prejudice. *See Order for details.* (Case Terminated. Made JS-6.) (cw) (Entered: 03/19/2018)

04/05/2018

359 OPPOSITION to for Attorney Fees 354 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Declaration with Exhibits A-C)(Gershon, Elissa) (Entered: 04/05/2018)

04/05/2018

360 MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION for Attorney Fees Pursuant to C.C.P. 1021.5 and Costs 355 filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Attachments: # 1 Declaration of Deputy Attorney General Kenneth K. Wang in Support of Defendants' Opposition to Plaintiff's Motion for Attorneys' Fees and Costs, # 2 Exhibit A-I to Declaration of Deputy Attorney General Kenneth K. Wang's Declaration in Support of Opposition to Plaintiff's Motion for Attorneys' Fees and Costs, # 3 Declaration of Sarah Brooks in Support of Defendants' Opposition to Plaintiff's Motion for Attorneys' Fees and Costs, # 4 Exhibit A to Declaration of Sarah Brook's Declaration in Support of Opposition to Plaintiff's Motion for Attorneys' Fees and Costs)(Wang, Kenneth) (Entered: 04/05/2018)

04/05/2018

361 DECLARATION of Jennifer Chumura in Support of Defendants' Oppoistion to Plaintiffs' Motion for Attorneys' Fees and Costs NOTICE OF MOTION AND MOTION for Attorney Fees Pursuant to C.C.P. 1021.5 and Costs 355 filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Attachments: # 1 Exhibit A to Declaration of Jennifer Chumura in Support of Defendants' Opposition to Plaintiffs' Motion for Attorneys' Fees and Costs, # 2 Exhibit B to Declaration of Jennifer Chumura in Support of Defendants' Opposition to Plaintiffs' Motion for Attorneys' Fees and Costs, # 3 Exhibit C to Declaration of Jennifer Chumura in Support of Defendants' Opposition to Plaintiffs' Motion for Attorneys' Fees and Costs, # 4 Exhibit D to Declaration of Jennifer Chumura in Support of Defendants' Opposition to Plaintiffs' Motion for Attorneys' Fees and Costs, # 5 Exhibit E to Declaration of Jennifer Chumura in Support of Defendants' Opposition to Plaintiffs' Motion for Attorneys' Fees and Costs, # 6 Exhibit F to Declaration of Jennifer Chumura in Support of Defendants' Opposition to Plaintiffs' Motion for Attorneys' Fees and Costs, # 7 Exhibit G to Declaration of Jennifer Chumura in Support of Defendants' Opposition to Plaintiffs' Motion for Attorneys' Fees and Costs, # 8 Exhibit H to Declaration of Jennifer Chumura in Support of Defendants' Opposition to Plaintiffs' Motion for Attorneys' Fees and Costs, # 9 Exhibit I to Declaration of Jennifer Chumura in Support of Defendants' Opposition to Plaintiffs' Motion for Attorneys' Fees and Costs, # 10 Exhibit J to Declaration of Jennifer Chumura in Support of Defendants' Opposition to Plaintiffs' Motion for Attorneys' Fees and Costs, # 11 Exhibit K to Declaration of Jennifer Chumura in Support of Defendants' Opposition to Plaintiffs' Motion for Attorneys' Fees and Costs, # 12 Exhibit L to Declaration of Jennifer Chumura in Support of

Defendants' Opposition to Plaintiffs' Motion for Attorneys' Fees and Costs, # 13 Exhibit M to Declaration of Jennifer Chumura in Support of Defendants' Opposition to Plaintiffs' Motion for Attorneys' Fees and Costs, # 14 Exhibit N to Declaration of Jennifer Chumura in Support of Defendants' Opposition to Plaintiffs' Motion for Attorneys' Fees and Costs, # 15 Exhibit O to Declaration of Jennifer Chumura in Support of Defendants' Opposition to Plaintiffs' Motion for Attorneys' Fees and Costs, # 16 Exhibit P to Declaration of Jennifer Chumura in Support of Defendants' Opposition to Plaintiffs' Motion for Attorneys' Fees and Costs, # 17 Exhibit Q to Declaration of Jennifer Chumura in Support of Defendants' Opposition to Plaintiffs' Motion for Attorneys' Fees and Costs, # 18 Exhibit R1 to Declaration of Jennifer Chumura in Support of Defendants' Opposition to Plaintiffs' Motion for Attorneys' Fees and Costs, # 19 Exhibit R2 to Declaration of Jennifer Chumura in Support of Defendants' Opposition to Plaintiffs' Motion for Attorneys' Fees and Costs, # 20 Exhibit S to Declaration of Jennifer Chumura in Support of Defendants' Opposition to Plaintiffs' Motion for Attorneys' Fees and Costs, # 21 Exhibit T to Declaration of Jennifer Chumura in Support of Defendants' Opposition to Plaintiffs' Motion for Attorneys' Fees and Costs, # 22 Exhibit U1 to Declaration of Jennifer Chumura in Support of Defendants' Opposition to Plaintiffs' Motion for Attorneys' Fees and Costs, # 23 Exhibit U2 to Declaration of Jennifer Chumura in Support of Defendants' Opposition to Plaintiffs' Motion for Attorneys' Fees and Costs, # 24 Exhibit V to Declaration of Jennifer Chumura in Support of Defendants' Opposition to Plaintiffs' Motion for Attorneys' Fees and Costs)(Wang, Kenneth) (Entered: 04/05/2018)

04/12/2018

362 REPLY IN SUPPORT for Attorney Fees 354 MOTION TO RECOVER ATTORNEYS' FEES AND COSTS filed by Defendants Jennifer Kent, State of California Department of Health Care Services. (Attachments: # 1 Declaration OF SARAH BROOKS IN SUPPORT OF DEFENDANTS' REPLY FOR DEFENDANTS' MOTION TO RECOVER ATTORNEYS' FEES AND COSTS, # 2 Declaration OF DEPUTY ATTORNEY GENERAL KENNETH K. WANG IN SUPPORT OF DEFENDANTS' REPLY FOR DEFENDANTS' MOTION TO RECOVER ATTORNEYS' FEES AND COSTS and EXHIBITS A THROUGH D)(Wang, Kenneth) (Entered: 04/12/2018)

04/12/2018

363 NOTICE OF ERRATA filed by Defendants Jennifer Kent, State of California Department of Health Care Services. correcting Declaration (Motion related),,,,,,,,,,,,,,,, 361 NOTICE OF ERRATA TO EXHIBIT 'T' OF THE DECLARATION OF JENNIFER CHMURA IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS (Wang, Kenneth) (Entered: 04/12/2018)

04/12/2018

364 REPLY In Support Of NOTICE OF MOTION AND MOTION for Attorney Fees Pursuant to C.C.P. 1021.5 and Costs 355 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Declaration of Elissa Gershon ISO Reply with Exhibits AC)(Gershon, Elissa) (Entered: 04/12/2018)

04/12/2018

365 PLAINTIFFS' OBJECTIONS TO DEFENDANTS DECLARATIONS IN OPPOSITION TO PLAINTIFFS MOTION FOR ATTORNEYS FEES AND COSTS in Support of re: NOTICE OF MOTION AND MOTION for Attorney Fees Pursuant to C.C.P. 1021.5 and Costs 355 filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Gershon, Elissa) (Entered: 04/12/2018)

04/16/2018

366 Notice of Appearance or Withdrawal of Counsel: for attorney Joanna Berney Hull counsel for Interested Party United States of America. Joanna Hull will no longer receive service of documents from the Clerks Office for the reason indicated in the G-123 Notice. Joanna Hull is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Interested Party Joanna Hull. (Hull, Joanna) (Entered: 04/16/2018)

04/19/2018

367 TEXT ONLY ENTRY by Chambers of Judge Fernando M. Olguin. On the court's own motion, the Motion to Recover Fees and Costs 354 and the Motion for Attorney Fees 355 are taken off the 4/26/2018 calendar and placed under submission. No appearances are required on 4/26/2018. An order with the court's rulings will issue. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (vdr) TEXT ONLY ENTRY (Entered: 04/19/2018)

05/30/2019

368 ORDER RE: PENDING MOTIONS by Judge Fernando M. Olguin. Plaintiffs' Motion for Attorney's Fees 355 is granted. Defendants' Motion to Recover Fees and Costs 354 is denied. Plaintiffs shall file their motion for attorney's fees and costs no later than July 31, 2019. (iv) (Entered: 05/30/2019)

07/10/2019

369 STIPULATION for Extension of Time to File Plaintiffs' Fee Motion filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Attachments: # 1 Proposed Order)(Gershon, Elissa) (Entered: 07/10/2019)

07/15/2019

370 ORDER RE: JOINT STIPULATION 369 by Judge Fernando M. Olguin. The deadline for plaintiffs to file their motion for attorneys' fees is continued to 9/4/2019. (vdr) (Entered: 07/15/2019)

07/25/2019 371 Joint STIPULATION for Extension of Time to File Motion for Attorneys' Fees and Costs filed by Plaintiffs Sean Benison, Juan

Palomares, Jerry Thomas. (Attachments: # 1 Proposed Order)(Gershon, Elissa) (Entered: 07/25/2019)

07/26/2019

372 ORDER RE JOINT STIPULATION 371 TO EXTEND TIMELINE FOR FILING OF PLAINTIFFS' FEE MOTION by Judge Fernando M. Olguin. The deadline for Plaintiffs to file their Motion for attorneys' fees, expenses, and costs is hereby CONTINUED to February 27, 2020. (iv) (Entered: 07/26/2019)

11/22/2019

373 NOTICE OF RESOLUTION OF PENDING MATTERS filed by Plaintiffs Sean Benison, Juan Palomares, Jerry Thomas. (Gershon, Elissa) (Entered: 11/22/2019)

 </s> Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 1 of 35 Page ID #:56

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 2 of 35 Page ID #:57
1 Elissa Gershon, State Bar No. 169741 Elissa.Gershon@disabilityrightsca.org
2 Disability Rights California 1330 Broadway, Ste. 500
3 Oakland, CA 94612-2509 Telephone: 510-267-1200
4 Fax: 510-267-1201 5 Maria Iriarte, State Bar No. 150704
Maria.Iriarte@disabilityrightsca.org 6 Disability Rights California
1111 Sixth Avenue, Suite 200 7 San Diego, CA 92101
Tel: (619) 239-7861 8 Fax: (619) 239-7906 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Thomas v. Douglas: Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 3 of 35 Page ID #:58

1 I. INTRODUCTION

2

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

3 authorize critically needed Medi-Cal funded in-home services to Plaintiffs Jerry

4 Thomas, Arthur Congdon and Sean Benison. Failure to receive these services will

5 result in severe harm and potential institutionalization of these individuals with

6 disabilities. Due to their fragile medical conditions, placement in an institution is

7 likely to result in dire health consequences and even death. Institutional care for

8 Plaintiffs would also cost the State significantly more than it would to keep them

9 safely in their own homes.

10

2. Plaintiffs have severe disabilities and chronic medical conditions:

11 Plaintiff Jerry Thomas is diagnosed with Progressive Supranuclear Palsy and Post-

12 Polio Syndrome. Plaintiffs Arthur Congdon and Sean Benison have advanced

13 hereditary progressive Muscular Dystrophy. Due to their illnesses, Plaintiffs are

14 quadriplegic and cannot breathe or move on their own. They have tracheal tubes

15 connected to ventilators to help them breathe. Plaintiffs Thomas and Congdon

16 receive nutrition and hydration via Gastrostomy feeding tubes.

17

3. All three Plaintiffs live in their own homes, with round the clock care

18 provided by a combination of licensed nurses, and unskilled paid and unpaid

19 attendants. However, pursuant to their doctors’ orders, Plaintiffs Thomas and

20 Congdon need 24 hour nursing care, and Plaintiff Benison needs additional nursing

21 care, to assess and address their complex and unpredictable needs, including

22 monitoring their ventilators and oxygen levels, preparing and administering

23 medications, and clearing fluids from their lungs and tracheotomy tubes.

24

4. While this kind of intensive nursing care is often provided in a hospital

25 or Subacute medical care facility, Plaintiffs have been able to remain in their

26 communities and close to their families because of nursing care available to them in

27 their homes under the Medi-Cal Home and Community Based Nursing

28 Facility/Acute Hospital Waiver (“NF/AH Waiver”), administered by Defendants

Thomas v. Douglas: Complaint for Injunctive and Declaratory Relief

1

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 4 of 35 Page ID #:59

1 Department of Health Care Services and its Director, Toby Douglas ("DHCS" or

2 "Defendants").

3

5. Plaintiffs have all requested additional licensed nursing care services

4 from Defendants, so that they can continue living safely in their homes and

5 communities. Defendants have denied these requests.

6

6. Plaintiff Benison, who lives alone, also requires Case Management and

7 Habilitation services, which are available under the NF/AH Waiver. However, Mr.

8 Benison is not able to access these needed NF/AH Waiver services that would help

9 him live more independently and successfully in his home and community.

10

7. The sole reason Plaintiffs are not able to get these critically needed

11 services is because Defendants have placed arbitrary cost limitations on services

12 available under the NF/AH Waiver. Specifically, for individuals like Plaintiffs who

13 have been determined to meet the Subacute level of care, Medi-Cal would pay

14 $271,697 per year for institutional placement in a Subacute facility; however,

15 Defendants have capped the budget for comparable in-home services funded

16 through the NF/AH Waiver at $180,219 per year, which is at least $90,000 below

17 the actual cost of equivalent care in a Subacute facility. The cost of the additional

18 nursing and other NF/AH Waiver services requested by Plaintiffs would still cost

19 less than placement in a Subacute facility. Defendants have the discretion and the

20 ability to modify the NF/AH Waiver to enable Plaintiffs to receive the skilled

21 nursing care and other services they need to remain safely at home. But, they have

22 refused to provide critically needed services on grounds it exceeds their arbitrary

23 cost-cap.

24

8. Defendants’ actions violate the Americans with Disabilities Act of

25 1990, 42 U.S.C. § 12312 (“ADA”) and Section 504 of the Rehabilitation Act of

26 1973, 29 U.S.C. § 794 (“Section 504”). Under the ADA and Section 504, a public

27 agency such as DHCS has a duty to provide services to people with disabilities in

28 the “most integrated setting appropriate to their needs” and to prevent unnecessary

Thomas v. Douglas: Complaint for Injunctive and Declaratory Relief

2

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 5 of 35 Page ID #:60

1 institutionalization. The most integrated setting for Plaintiffs is to continue living in

2 their homes in the community, with adequate NF/AH Waiver services to meet their

3 significant needs. Placing Plaintiffs at risk of unnecessary institutionalization in

4 order to receive the care they need violates the ADA.

5

9. Under the ADA, Defendants also have an obligation to use methods of

6 administration that do not discriminate against individuals with disabilities such as

7 Plaintiffs. Defendants’ failure to ensure that Plaintiffs are provided with adequate

8 NF/AH Waiver services to continue living safely in their homes, and their decision

9 to set funding levels for services that are biased in favor of institutional care results

10 in discrimination against Plaintiffs in the administration of the Medi-Cal program.

11 II. JURISDICTION

12

10. This is an action for declaratory and injunctive relief for violations of

13 Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 and Section 504

14 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.

15

11. Jurisdiction is based on 28 U.S.C. §§ 1331 and 1343. Plaintiffs’ claims

16 for declaratory and injunctive relief are authorized under 28 U.S.C. §§ 2201 and

17 2202. At all times relevant to this action, Defendants have acted under color of state

18 law.

19 III. VENUE

20

12. Venue is proper in the Central District of California pursuant to 28

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

22 therein and thus reside therein for purposes of venue, and because a substantial part

23 of the events or omissions giving rise to the claims herein occurred in the Central

24 District of California. Plaintiff Jerry Thomas lives and receives Medi-Cal services

25 in Orange County, which is in the Central District of California. Plaintiff Arthur

26 Congdon lives and receives Medi-Cal services in Los Angeles County, which is in

27 the Central District of California. Plaintiff Sean Benison lives and receives Medi-

28 Cal services in Ventura County, which is in the Central District of California.

Thomas v. Douglas: Complaint for Injunctive and Declaratory Relief

3

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 6 of 35 Page ID #:61

1 Defendant DHCS operates the Medi-Cal program, conducts business and provides

2 Medi-Cal services to Plaintiffs in Orange County, Los County and Ventura County,

3 all in the Central District of California.

4 IV. PARTIES

5 Plaintiffs

6

13. Each Plaintiff is a “qualified person with a disability” within the

7 meaning of all applicable statutes, including 42 U.S.C. §12131(2) and 29 U.S.C.

8 §705(20)(B). Plaintiffs have been and continue to be Medi-Cal beneficiaries.

9

14. Plaintiff Jerry Thomas is 73 years old and has Progressive Supranuclear

10 Palsy (“PSP”), a degenerative brain disorder that causes serious and progressive

11 problems with gait and balance, eye movement, cognitive difficulties, and muscle

12 weakness, and which will worsen over time. In addition to PSP, Mr. Thomas has

13 Post-Polio Syndrome, quadriplegia, chronic pain syndrome, dysphagia (difficulty

14 swallowing), chronic respiratory failure, chronic constipation, chronic atelectasis (a

15 complete or partial collapse of the lung), recurrent episodes of urinary tract

16 infections (“UTIs”), recurrent pneumonia and/or bronchitis, and hypothyroidism,

17 among other conditions. After 14 years of institutional placement, Mr. Thomas now

18 resides at home with his wife of over 30 years, Beverly Thomas, who brought him

19 home from a Subacute facility in 2013. She serves as his Guardian ad Litem in this

20 litigation.

21

15. Plaintiff Arthur Congdon is 36 years old and has advanced hereditary

22 progressive Duchenne Muscular Dystrophy, chronic respiratory failure, congestive

23 heart failure, cardiomyopathy, is quadriplegic and legally blind. Mr. Congdon also

24 suffers from insomnia, chronic back pain, gastric problems and severe contracture of

25 his joints. He resides at home with his mother, who is his primary caregiver.

26

16. Plaintiff Sean Benison is 43 years old and has advanced hereditary

27 progressive Becker Muscular Dystrophy, is quadriplegic, has chronic respiratory

28 failure, chronic obstructive pulmonary disease, chronic pain disorder, anxiety

Thomas v. Douglas: Complaint for Injunctive and Declaratory Relief

4

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 7 of 35 Page ID #:62

1 disorder, DVT (thromboembolism) prophylaxis and reflux esophagitis. He lives on

2 his own in his apartment, after leaving two years of institutional care in a Subacute

3 facility in October 2013.

4

17. All three Plaintiffs have a tracheal tube that is connected to a

5 ventilator to help them breathe. Due to Plaintiffs’ mucous secretions and their

6 inability to swallow due to the tracheotomy and loss of muscle function, Plaintiffs

7 must be suctioned as needed, sometimes as frequently as four to five times an hour,

8 when saliva builds up in the mouth, nose, and throat to avoid pooling of mucous or

9 any fluid in the lungs. If fluid does go into the lungs, it could impair oxygen

10 exchange, resulting in lack of oxygen and permanent damage to organs (including

11 brain injury), pneumonia, and infection. Plaintiffs Congdon and Benison use a

12 cuffed tracheotomy which is uncuffed during the day and allows for the possibility

13 of communication/speech, but also allows fluid to go into the lungs if not timely

14 suctioned. During the night, the tracheotomy is cuffed and Plaintiffs are not able to

15 speak – which can be more dangerous since they are not able to communicate if they

16 are in distress. Further, air leaks out of the cuff and a nurse is required to keep

17 adding air to the cuff and to monitor the ventilator settings to ensure Plaintiffs are

18 properly ventilated: too much air puts pressure on the lungs and too little air can

19 make them unconscious. All this is done through the night while Plaintiffs are

20 asleep.

21

18. Plaintiffs are dependent on a wheelchair for mobility at all times.

22 Plaintiffs Thomas and Congdon also have Gastrostomy tubes (“G-tube”) for feeding

23 and medication administration. Plaintiffs are completely dependent on medical

24 technologies for survival. Plaintiffs cannot move, turn, feed, dress, bathe or take

25 care of themselves. They need total care for every daily activity.

26

19. Plaintiffs' in-home nursing care is provided by licensed vocational

27 nurses (“LVNs” or “nurses”). LVNs are licensed to provide skilled nursing care in

28 many settings including hospitals. 42 C.F.R. Sec. 409.31 (a); 22 C.C.R. §§

Thomas v. Douglas: Complaint for Injunctive and Declaratory Relief

5

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 8 of 35 Page ID #:63

1 70055(a)(16), §70055(a)(16) & 70217 (a). These one-on-one skilled nursing

2 services have been ordered by Plaintiffs’ physicians because their care requires the

3 exercise of judgment informed by experience and expertise in addressing the care

4 needs of persons with severe disabilities and chronic illnesses. The services

5 Plaintiffs require cannot safely be provided by untrained or unskilled individuals

6 and are medically necessary.

7 Defendant Department of Health Care Services

8

20. Defendant California Department of Health Care Services (“DHCS”)

9 administers the California Medicaid program, called “Medi-Cal.” DHCS is the

10 single state agency responsible for the administration of the Medi-Cal program.

11

21. Defendant Toby Douglas is DHCS’ current Director and is sued only in

12 his official capacity. Director Douglas is responsible for directing, organizing, and

13 administering the Medi-Cal program, including Medi-Cal Home and Community

14 Based Services Waivers, in accordance with all applicable laws and regulations. As

15 such, he is responsible for DHCS’ compliance with state and federal laws governing

16 the Medi-Cal program.

17 V. STATUTORY AND REGULATORY FRAMEWORK

18

A. THE MEDICAID PROGRAM

19

22. Medicaid is a joint federal and state medical assistance program for

20 certain groups of low-income people, including children. 42 U.S.C. §§ 1396-1396v.

21 California has elected to participate in the Medicaid program, and so must comply

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

23 California’s Medicaid program is known as “Medi-Cal.”

24

23. The purpose of Medicaid is to furnish, as far as practicable, “medical

25 assistance on behalf of . . . aged, blind or disabled individuals, whose income and

26 resources are insufficient to meet the costs of necessary medical services” and “to

27 help such families and individuals to attain or retain capability for independence or

28 self-care . . . .” 42 U.S.C. § 1396.

Thomas v. Douglas: Complaint for Injunctive and Declaratory Relief

6

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 9 of 35 Page ID #:64

1

24. Participating States are reimbursed by the federal government for a

2 portion of the cost of providing Medicaid benefits. See 42 U.S.C. § 1396b. The

3 remaining funding for the Medi-Cal program comes from the State and from

4 counties.

5

25. States participating in Medicaid must designate a “single state agency”

6 to administer or supervise the administration of the Medicaid program. 42 U.S.C. §

7 1396a(a)(5). DHCS is the single state agency so designated in California.

8

26. The California Medi-Cal program provides an array of medical

9 services, treatments, and therapies that are authorized based on individuals’ meeting

10 “medical necessity” criteria. Welf. & Inst. Code §§ 14059, 14059.5, 14133.3; 22

11 California Code of Regulations (“C.C.R.”) § 51303(a).

12 Medi-Cal Home and Community-Based Services Waivers

13

27. The Centers for Medicare and Medicaid (“CMS”) is the federal agency

14 that oversees the administration of the Medicaid programs offered by each state.

15 CMS has the authority to waive certain provisions of federal Medicaid law to allow

16 states to provide home and community-based services (“HCBS”) in lieu of

17 institutional care, for targeted groups of individuals who otherwise would require

18 care in a medical facility. 42 U.S.C. § 1396n(c)(1).

19

28. States may receive federal financial participation for such HCBS

20 “waiver” services to the same extent as provided to other Medicaid services offered

21 by the State. CMS approves or denies a state’s HCBS waiver application and must

22 approve any amendments to an approved waiver application. Id.

23

29. DHCS has been mandated by the Legislature to “seek all necessary

24 waivers . . . in order to provide in-home and community-based care.” Welf. & Inst.

25 Code §§ 14132(t), 14137. DHCS routinely seeks and secures approval to renew

26 and amend HCBS Waivers within permissible federal limitations.

27

30. HCBS Waivers in California include the Nursing Facility/Acute

28 Hospital (“NF/AH”) Waiver. The purpose of the NF/AH Waiver is to provide

Thomas v. Douglas: Complaint for Injunctive and Declaratory Relief

7

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 10 of 35 Page ID #:65

1 Medi-Cal beneficiaries with long-term medical conditions who meet one of the

2 designated "levels of care" described below, the option of returning to and/or

3 remaining in their homes or home-like community settings in lieu of

4 institutionalization.

5 http://www.dhcs.ca.gov/services/ltc/Documents/NFAH%20Transition%20and%20D

6 iversion%20Waiver%2012-1-2012.pdf ("NF/AH Waiver") at 7-8.

7

31. In seeking federal approval for the NF/AH Waiver, DHCS gave

8 assurances to CMS, including that: (a) Necessary safeguards have been taken to

9 protect the health and welfare of participants receiving services under the NF/AH

10 Waiver; and, (b) Plans of Care are responsive to NF/AH Waiver participants’ needs.

11 NF/AH Waiver at 9-10.

12

32. Under the umbrella of the NF/AH HCBS Waiver, DHCS administers

13 three HCBS waivers which each correspond to an institutional level of care. These

14 levels of care are: Nursing Facility Level A or B (“NF-A/B”), Nursing Facility

15 Subacute (“Subacute”), and Acute Hospital. Each of the three HCBS Waivers

16 contained in the NF/AH Waiver offers an array of home and community-based

17 services, discussed below.

18

33. The level of care criteria for the NF/AH Home and Community Based

19 Services Waivers explicitly describe the type and level (or severity) of functional

20 limitations and/or skilled nursing needs an individual must have to be admitted to an

21 institutional setting. Upon meeting those eligibility criteria, or level of care, an

22 individual may qualify for corresponding NF/AH HCBS Waiver services.

23

34. California offers various services under the NH/AH Waiver, including

24 Private Duty Nursing, Case Management and Habilitation services that Plaintiffs are

25 seeking. NF/AH Waiver at 59.

26

35. “Private duty nursing” services means individual and continuous care

27 (in contrast to part-time or intermittent care) provided by a licensed nurse or a

28 certified home health aide employed by a home health agency within the scope of

Thomas v. Douglas: Complaint for Injunctive and Declaratory Relief

8

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 11 of 35 Page ID #:66

1 state law. Private duty nursing services are provided in a recipient’s home, home-

2 like environment or an approved out-of-home setting. 42 U.S.C. § 1396d(a)(9); 42

3 C.F.R. § 440.90; NF/AH Waiver at 196.

4

36. “Case Management” services are designed to assess the participant and

5 determine the need for medical, psycho-social, social and other services and to assist

6 participants in gaining access to those needed services, regardless of the funding

7 source, to ensure the participant’s health and safety and support of his/her home and

8 community-based program. Case Managers also assist in securing personal care

9 providers, work with the participant and his/her physician in developing goals and

10 identifying a course of action to respond to the assessed needs of the individual, as

11 well as oversee the implementation of the services described in the Plan of

12 Treatment (“POT”). Case Management responsibilities include assessing, care

13 planning, locating, coordinating, and monitoring services for community-based

14 participants on the waiver. Case Management may be provided by an array of

15 provider types. NF/AH Waiver at 59-72.

16

37. “Habilitation Services” are provided in a participant’s home or an out-

17 of-home non-facility setting and are designed to assist the participant in acquiring,

18 retaining, and improving self-help, socialization, and adaptive skills necessary to

19 reside successfully in the person’s natural environment. Habilitation services

20 include training on: the use of public transportation; personal skills development in

21 conflict resolution; community participation; developing and maintaining

22 interpersonal relationships; personal habits; daily living skills (cooking, cleaning,

23 shopping, money management) and community resource awareness to support

24 independence in the community. It also includes assistance with: selecting and

25 moving into a home; locating and choosing suitable housemates; locating household

26 furnishings; settling disputes with landlords; managing personal financial affairs;

27 recruiting, screening, hiring, training, supervising, and dismissing personal

28 attendants; dealing with and responding appropriately to governmental agencies and

Thomas v. Douglas: Complaint for Injunctive and Declaratory Relief

9

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 12 of 35 Page ID #:67

1 personnel; asserting civil and statutory rights through self-advocacy, and building

2 and maintaining interpersonal relationships. NF/AH Waiver at 72-84.

3

38. In order to meet the federal cost-neutrality requirements, the NF/AH

4 Waiver contains assurances that, in the aggregate for the entire NF/AH Waiver

5 population, services provided in the community pursuant to the NF/AH Waiver will

6 not exceed the cost of services in the institution designated for comparable care.

7 NF/AH Waiver at 10. Defendants, however, have chosen to use an individual

8 maximum benefit level, rather than an aggregate cost-cap. Id. at 26. Thus, the three

9 Waivers within the NF/AH HCBS Waiver correspond to an institutional level of

10 care and have individual “cost-caps” depending on the Medi-Cal rate for their

11 corresponding facility. These cost-caps allow a qualifying individual to choose

12 from a menu of available home and community-based services but only up to the

13 cost-cap for his or her level of care set by DHCS in the applicable HCBS Waiver.

14 NF/AH Waiver at 26-27. Defendants have set these Waiver cost caps at a level far

15 below the institutional cost.

16

39. Upon information and belief, the Medi-Cal program pays $271,697 per

17 year to Subacute facilities for adults who are placed in those institutions.

18

40. However, Defendants will not authorize a comparable level of HCBS

19 waiver funding for home-based services for individuals such as Mr. Thomas, Mr.

20 Congdon and Mr. Benison who meet the Subacute criteria and would otherwise be

21 placed in a Subacute facility. This is because Defendants have arbitrarily set the

22 cost-cap for NF/AH Waiver services at the adult Subacute level of care at $180,219,

23 which is more than $90,000 below the actual cost of the comparable institutional

24 placement. NF/AH Waiver at 27.

25

41. Federal cost-neutrality requirements do not prohibit Defendants from

26 setting the Waiver cost-cap at or just below the rate paid to Subacute facilities, or

27 even exceeding the amount paid to Subacute facilities so long as in the aggregate,

28 the State’s Medi-Cal spending remains cost-neutral.

Thomas v. Douglas: Complaint for Injunctive and Declaratory Relief

10

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 13 of 35 Page ID #:68

1 In-Home Supportive Services

2

42. The In-Home Supportive Services (“IHSS”) program is the State’s

3 personal attendant care program pursuant to Cal. Welf. & Inst Code §§ 12300 et seq.

4 and Welf. & Inst. Code §§ 14132.95, 14132.951, 14132.952. The IHSS program

5 pays for certain services so eligible recipients can remain safely in their homes. To

6 be eligible, an individual must be over 65 years of age, or disabled, or blind. IHSS

7 services include: housecleaning, meal preparation, laundry, grocery shopping,

8 personal care services (such as bowel and bladder care, bathing, grooming and

9 paramedical services), accompaniment to medical appointments, and protective

10 supervision for the mentally impaired. Recipients may choose their IHSS workers,

11 who must meet minimal requirements for approval, such as a background check, but

12 who are not required to be licensed or skilled medical practitioners.

13

B. FEDERAL ANTI-DISCRIMINATION LAWS

14

43. Qualifying individuals with disabilities are protected from disability

15 discrimination, including segregation in institutions, by the ADA and Section 504.

16

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

17 disabilities continually encounter various forms of discrimination,

18 including…segregation…” 42 U.S.C. § 12101(a) (5). Title II of the ADA provides

19 that “no qualified individual with a disability shall, by reason of disability, be

20 excluded from participation in or be denied the benefits of services, programs, or

21 activities of a public entity or be subjected to discrimination by such entity.” 42

22 U.S.C. § 12132.

23

45. Regulations implementing Title II of the ADA provide: “[a] public

24 entity shall administer services, programs, and activities in the most integrated

25 setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R.

26 § 35.130(d) (1991); see also Section 504, 29 U.S.C. §§ 794-794a; 28 C.F.R. §

27 41.51(d). Further, “[t]he most integrated setting appropriate to the needs of a

28 qualified individual with a disability means a setting that enables individuals with

Thomas v. Douglas: Complaint for Injunctive and Declaratory Relief

11

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 14 of 35 Page ID #:69

1 disabilities to interact with non-disabled persons to the fullest extent possible.” 28

2 C.F.R. pt. 35, App. A, p. 450 (1998).

3

46. The United States Supreme Court in Olmstead v. L.C. ex rel. Zimring,

4 527 U.S. 581 (1999) held that the unnecessary institutionalization of individuals

5 with disabilities is a form of discrimination under Title II of the ADA. In doing so,

6 the Court interpreted the ADA’s “integration mandate” as requiring persons with

7 disabilities to be served in the community when: (1) the state determines that

8 community-based treatment is appropriate; (2) the individual does not oppose

9 community placement; and (3) community placement can be reasonably

10 accommodated. Olmstead, 527 U.S. at 607.

11

47. Regulations implementing Title II of the ADA and Section 504 also

12 provide: “A public entity may not, directly or through contractual or other

13 arrangements, utilize criteria or other methods of administration: (i) that have the

14 effect of subjecting qualified individuals with disabilities to discrimination on the

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

16 substantially impairing accomplishment of the objectives of the entity’s program

17 with respect to individuals with disabilities…” 28 C.F.R. § 35.130(b)(3); 28 C.F.R.

18 § 41.51(b)(3)(I); 45 C.F.R. § 84.4(b)(4).

19

48. ADA regulations further provide: “[a] public entity shall not impose or

20 apply eligibility criteria that screen out or tend to screen out an individual with a

21 disability or any class of individuals with disabilities from fully and equally

22 enjoying any service, program, or activity, unless such criteria can be shown to be

23 necessary for the provision of the service, program, or activity being offered.” 28

24 C.F.R. § 35.130(b)(8); see also parallel Section 504 regulations, 45 C.F.R.

25 § 84.4(b)(1)(iv).

26

49. As set forth in federal regulations: “[a] public entity shall make

27 reasonable modifications in policies, practices, or procedures when the

28 modifications are necessary to avoid discrimination on the basis of disability, unless

Thomas v. Douglas: Complaint for Injunctive and Declaratory Relief

12

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 15 of 35 Page ID #:70

1 the public entity can demonstrate that making the modifications would

2 fundamentally alter the nature of the service, program, or activity.” 28 C.F.R.

3 § 35.130(b)(7).

4 VI. FACTUAL ALLEGATIONS

5 JERRY THOMAS

6

50. Jerry Thomas was diagnosed with Progressive Supranuclear Palsy in

7 2007 at 66 years of age. Progressive Supranuclear Palsy is a degenerative brain

8 disorder that involves a loss of muscle control impacting gait and balance, eye

9 movement, and thought processes.

10

51. Mr. Thomas’s in-home nursing services have been funded entirely by

11 Medi-Cal.

12

52. Mr. Thomas lives at home with wife of over thirty years, Beverly

13 Thomas. Mr. Thomas’s wife is his primary care giver and his Guardian ad Litem.

14

53. Before Mr. Thomas became ill, he worked as a road manager for his

15 brother, singer BJ Thomas. When he was not spending time with his wife or

16 working, most weekends Mr. Thomas was hunting with his dogs and family

17 members.

18

54. Mr. and Mrs. Thomas desire that he continue living at home with

19 appropriate nursing services.

20

55. Mr. Thomas is medically fragile and technology dependent. Mr.

21 Thomas requires oxygen 24 hours a day and is connected to a ventilator at least 18

22 hours a day, and more when needed. He receives nutrition, hydration and

23 medication through his G-tube. Mr. Thomas is non-ambulatory and cannot bear

24 weight. He uses a wheelchair and requires assistance with all activities of daily

25 living (“ADLs”).

26

56. Mr. Thomas can no longer speak and is only able to communicate by

27 blinking his eyes. Individuals need training to understand his body language for

28 signs and symptoms of changes in his condition, need, and medical emergencies.

Thomas v. Douglas: Complaint for Injunctive and Declaratory Relief

13

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 16 of 35 Page ID #:71

1

57. At age 66, when Mr. Thomas could no longer breathe on his own due

2 to muscle weakness, he had a tracheotomy.

3

58. In order to control his symptoms and severe pain, he takes over 40

4 medications, including several narcotics and 7 medications that are provided pre re

5 nata (“PRN” as needed).

6

59. In addition to PSP, Mr. Thomas has been diagnosed with Post Polio

7 Syndrome, among other conditions.

8

60. Mr. Thomas lived in a nursing facility for fourteen years, until his wife

9 was able to bring him home with services under the NF/AH Waiver. Since moving

10 home on April 1, 2013, Mr. Thomas has been in the hospital or hospitalized several

11 times, as well as seen by his doctors on numerous occasions. Mr. Thomas is

12 regularly seen by his pulmonologist and primary care physician, as well as a

13 neurologist.

14

61. Since Mr. Thomas moved home, his condition has worsened due to the

15 natural progression of his diseases. He now requires more time connected to the

16 ventilator and takes additional medications to assist with his digestive and

17 tracheotomy suctioning needs. In July 2014, Dr. Kayaleh, Mr. Thomas’s treating

18 physician, ordered for him to be provided with 24 hour nursing care.

19

62. Mrs. Thomas is not a licensed vocational nurse and is not capable of

20 providing the additional nursing care that Mr. Thomas requires.

21 Mr. Thomas’ Nursing Care Needs

22

63. As set forth in his Plan of Treatment approved by his physician, Mr.

23 Thomas has frequent, ongoing, and unpredictable skilled care needs that must be

24 addressed by a licensed nurse. These include, e.g.,: monitoring Mr. Thomas’

25 oxygen saturation levels and providing skilled interventions when his oxygen levels

26 drop below 92%, including breathing with ambu-bag, CPR, and calling 911;

27 determining when Mr. Thomas must be placed on the ventilator during sprinting

28 hours; monitoring and administering his medications including over 40 daily

Thomas v. Douglas: Complaint for Injunctive and Declaratory Relief

14

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 17 of 35 Page ID #:72

1 medications and 7 medications to be taken PRN as needed for proper dosage,

2 effectiveness, interactions, and side effects; monitoring the amount, sound, and color

3 of Mr. Thomas’ secretions for signs of infection; monitoring the sound of Mr.

4 Thomas’ lungs to assess for a respiratory infection or blockage; monitoring and

5 performing deep tracheal suctioning; monitoring the color, consistency, odor, and

6 frequency of Mr. Thomas’ urine and bowels for signs and symptoms of infections;

7 administering and checking all equipment to ensure proper functioning and replace

8 equipment or intervene as needed; monitoring feeding tolerance and knowing when

9 Mr. Thomas’ G-tube feeding should be stopped when he presents signs of

10 abdominal pain and discomfort; monitoring, caring for, and replacing his trach

11 stoma when necessary; taking and interpreting vital signs and knowing when they

12 indicate a possible infection or when CPR is required; monitoring Mr. Thomas’

13 entire system for signs of infection, change, or emergency; assessing and monitoring

14 Mr. Thomas’ skin for signs of infection, breakdown, or ulcers; and identifying and

15 responding to emergencies.

16 In-Home Nursing Authorization

17

64. Before moving home from Chapman Subacute facility on April 1,

18 2013, Mr. Thomas was approved to receive 450 LVN hours under the NF/AH

19 waiver at the Subacute level of care, along with 240.04 hours of IHSS, and 2 hours

20 of RN case management. He and his wife accepted this combination of skilled and

21 unskilled care because Mr. Thomas unquestionably required round-the-clock

22 coverage and they understood that due to the Subacute Waiver cost-cap, he would

23 not be able to receive the 24-hour nursing he needed.

24

65. On October 16, 2013, DHCS conducted a home visit to reassess Mr.

25 Thomas’ level of care. Based on the assessment, DHCS determined that Mr.

26 Thomas remained eligible for the NF/AH waiver at the Subacute level of care.

27 However, DHCS determined that the expenditures for the services he was receiving

28 exceeded the NF/AH waiver cost-cap at the Subacute level of care, which is $

Thomas v. Douglas: Complaint for Injunctive and Declaratory Relief

15

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 18 of 35 Page ID #:73

1 180,219.00.

2

66. Even though Mr. Thomas’ needs had increased since his move home,

3 DHCS issued a Notice of Action (“NOA”) on January 9, 2014 reducing his in-home

4 LVN nursing authorization to 430 hours per month. The NOA provided that the

5 decrease in services was solely due to the cost-cap under the NF/AH waiver, not a

6 change or improvement in Mr. Thomas’ condition.

7

67. On February 10, 2014, Mrs. Thomas, on behalf of her husband, timely

8 appealed DHCS’ 20-hour per month nursing reduction by mail and requested aid-

9 paid-pending. At Plaintiffs' request, DHCS reassessed Mr. Thomas in August 2014,

10 but refused to authorize increased nursing hours for him. On September 23, 2014, a

11 Medi-Cal fair hearing was held, where Mr. Thomas presented his medical need for

12 24 hour nursing care, consistent with his doctor’s July 2014 orders. The

13 administrative law judge has not yet issued a ruling; thus Mr. Thomas has not yet

14 experienced a reduction in his nursing care. However, because DHCS has the

15 ability to “alternate”, or overturn, the decision, even a favorable ruling does not

16 offer Mr. Thomas protection from this cut. Moreover, at the hearing, Defendants

17 argued that the hearing issues should be limited to the 20-hour per month reduction,

18 and not whether Mr. Thomas was entitled to receive 24-hour per day nursing care.

19 Thus, even a favorable decision may not provide Mr. Thomas with permanent or

20 adequate relief.

21 ARTHUR CONGDON

22

68. Arthur Congdon is 36 years old. He was diagnosed with Duchenne

23 Muscular Dystrophy as a child. Muscular Dystrophy is a degenerative disease

24 involving advancing muscle weakness, loss of muscle tissue, and atrophy. As a

25 result of Muscular Dystrophy, Mr. Congdon is quadriplegic and uses a wheelchair.

26 Mr. Congdon also has congestive heart failure, cardiomyopathy, chronic respiratory

27 failure and is legally blind. In addition, Mr. Congdon suffers from chronic

28 insomnia, chronic back pain, gastric problems, urinary incontinence and severe

Thomas v. Douglas: Complaint for Injunctive and Declaratory Relief

16

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 19 of 35 Page ID #:74

1 contracture of his joints.

2

69. Mr. Congdon lives at home with his mother, Jennifer Knight. Ms.

3 Knight is also legally blind. Ms. Knight is Plaintiff’s primary caregiver, and is

4 involved in planning for and providing his care. Mr. Congdon’s father lives in

5 Pennsylvania.

6

70. Mr. Congdon has a Ph.D. in Astrophysics. In October 2008, he began

7 an assignment at the prestigious Jet Propulsion Laboratory (JPL) at the California

8 Institute of Technology in Pasadena, California. He was a participant in NASA’s

9 Postdoctoral Program administered by Oak Ridge Associated Universities.

10 However, due to his advancing Muscular Dystrophy, Mr. Congdon is no longer able

11 to work at JPL. Mr. Congdon now remains exclusively at home and is working on

12 an astrophysics textbook.

13

71. In March 2002, Mr. Congdon was named one of five winners nationally

14 of the Recording for the Blind and Dyslexic academic awards. To recognize his

15 accomplishment, Mr. Congdon was invited to the White House in Washington, DC,

16 where he met with then First Lady Laura Bush.

17

72. Mr. Congdon and his mother desire that he continue living at home

18 with appropriate nursing services.

19

73. Mr. Congdon’s in-home nursing care has been funded entirely by

20 Medi-Cal.

21

74. Mr. Congdon is medically fragile and technology dependent. He had a

22 G-tube inserted eleven years ago. At the same time, since Mr. Congdon could no

23 longer breathe on his own due to muscle weakness, he had a tracheotomy. Mr.

24 Congdon is non-ambulatory and cannot bear weight. He uses a wheelchair.

25

75. Since that time, Mr. Congdon has been dependent on a ventilator 24

26 hours a day.

27

76. Mr. Congdon receives nutrition, hydration and medication through his

28 G-tube. He is given water three times a day, and medicines four times a day, via his

Thomas v. Douglas: Complaint for Injunctive and Declaratory Relief

17

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 20 of 35 Page ID #:75

1 G-tube. His G-tube needs to be cleaned every day and flushed every time he gets

2 hydration.

3

77. Mr. Congdon needs total care for every daily activity. He cannot walk,

4 cannot move himself or even turn over in bed. He cannot feed himself and has

5 limited use of his hands.

6

78. Mr. Congdon had spinal fusion surgery in 1993. He was hospitalized at

7 Cedars Sinai for aspiration pneumonia in May 2013.

8

79. Mr. Congdon’s cardiologist is at the Cedars Sinai Medical Center. His

9 primary care doctor, who also handles his pulmonary care, is with the Family

10 Medicine Center in Glendale and treats Mr. Congdon in his home. Mr. Congdon is

11 not able to travel easily and so he is unable to receive treatment from a

12 pulmonologist and a neurologist.

13 Mr. Congdon’s Nursing Care Needs

14

80. As set forth in his Plan of Treatment approved by his physician, Mr.

15 Congdon has frequent, ongoing, and unpredictable skilled care needs that must be

16 addressed by a licensed nurse. These include: monitoring and ensuring his vital

17 signs remain within parameters listed in the physician’s orders, and more frequent

18 checks if he is running a fever, or for signs or symptoms of a change in condition;

19 monitoring Mr. Congdon’s respiratory function through regular interventions of

20 deep and oral suctioning, effective trach care including mobilization of lung

21 secretions, and ventilator support, and responding to signs and symptoms of

22 respiratory distress; ensuring adequate nutrition, hydration and medication is

23 provided for Mr. Congdon via his G-tube, through close monitoring; assessing the

24 G-tube site for any problems or infection; monitoring for signs and symptoms of

25 weight change, altered bowel function and dehydration; tracheotomy assessment,

26 changing, addressing problems or infections; preparing medications as prescribed;

27 monitoring Mr. Congdon’s pain level and re-positioning him and administering

28 analgesics as needed; ensuring Mr. Congdon remains infection free at his trach and

Thomas v. Douglas: Complaint for Injunctive and Declaratory Relief

18

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 21 of 35 Page ID #:76

1 G-tube sites and keep sites clean and dry at all times; ensuring no skin impairment

2 develops by repositioning Mr. Congdon frequently and by providing skin care every

3 shift to ensure no skin breakdown; reporting any change in Mr. Congdon’s condition

4 to the physician, the RN, or others as appropriate.

5 In-Home Nursing Authorization

6

81. Mr. Congdon has been receiving NF/AH Waiver services since October

7 2008. He is authorized for up to 500 hours per month of licensed vocational

8 nursing, and two hours per month of RN case management. This provides him with

9 16 hours nursing coverage daily. He does not receive any IHSS attendant care.

10

82. Mr. Congdon’s mother, Ms. Knight, has been trained in his care needs

11 and provides the remainder of his care each day. She also provides backup care

12 during times when Mr. Congdon’s needs are so intense that two caregivers are

13 required or when the home health agency fails to staff a shift and a nurse is not

14 available.

15

83. However, Ms. Knight is unable to provide additional care for Mr.

16 Congdon. Mr. Congdon’s father lives on the East Coast and is unavailable to

17 provide any caregiver duties. Moreover, since Mr. Congdon is over the age of 18,

18 neither parent has a legal obligation to provide for his care.

19

84. In June 2013, Mr. Congdon’s physician ordered one-to-one nursing

20 care for him for twenty four hours per day. Accordingly, Mr. Congdon asked

21 Defendants for an additional 240 hours per month of licensed vocational nurse

22 private duty nursing. Defendants denied the request and, in lieu of the 240 hours per

23 month, only authorized Mr. Congdon an additional 20 hours per month of nursing

24 care, up to the Subacute Waiver cost-cap. Mr. Congdon did not appeal the denial

25 because he believed that doing so would be futile.

26 SEAN BENISON

27

85. Mr. Benison was diagnosed with progressive hereditary Becker

28 Muscular Dystrophy when he was 9 years old. Mr. Benison started using a manual

Thomas v. Douglas: Complaint for Injunctive and Declaratory Relief

19

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 22 of 35 Page ID #:77

1 wheelchair when he was 13 year old and a power wheel chair at age 21. Mr.

2 Benison is quadriplegic. In addition to Muscular Dystrophy, Mr. Benison has

3 chronic respiratory failure, chronic obstructive pulmonary disease, chronic pain

4 disorder, anxiety disorder, DVT (thromboembolism) prophylaxis and reflux

5 esophagitis. Mr. Benison takes 19 different medications.

6

86. Mr. Benison is working towards a Ph.D. in Geography at the University

7 of California, Santa Barbara (“UCSB”). He has a B.A. from California State

8 University Northridge. He has a Master’s degree in Geography from UCSB.

9

87. Mr. Benison lives in an apartment in Ventura, California with a live-in

10 IHSS personal care worker. Mr. Benison’s father, Edward Benison, does not

11 provide any daily care but involved in planning for and providing his care.

12

88. Mr. Benison and his family desire that he continue living at home with

13 appropriate nursing services.

14

89. Mr. Benison’s nursing care has been funded entirely by Medi-Cal.

15

90. While a student at UCSB, Mr. Benison was living in campus housing

16 and had an IHSS care worker assisting with his needs. Mr. Benison also had close

17 friends who helped with his care needs, which enabled Mr. Benison to enroll in and

18 pursue graduate studies.

19

91. In November 2011, while a student at UCSB, Mr. Benison’s health

20 took a turn for the worse. Mr. Benison had a severe attack of pneumonia and was

21 hospitalized at the Goleta Valley Cottage Hospital in Santa Barbara. He remained in

22 the Subacute unit of the acute care hospital for two years before he moved out to his

23 current apartment. While in the hospital, Mr. Benison had to undergo a

24 tracheostomy due to the pneumonia and neuromuscular and lung weakness caused

25 by the Muscular Dystrophy. Mr. Benison could no longer breathe on his own. Mr.

26 Benison is now dependent on a ventilator 24 hours a day.

27

92. Mr. Benison is medically fragile and technology dependent. Mr.

28 Benison is non-ambulatory and cannot bear weight. He uses a wheelchair for

Thomas v. Douglas: Complaint for Injunctive and Declaratory Relief

20

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 23 of 35 Page ID #:78

1 mobility. Until a few months ago, he had a G-tube for feeding and medication. Mr.

2 Benison cannot walk, cannot move himself or even turn over in bed. He cannot feed

3 himself and has limited use of his hands. He requires assistance with all activities of

4 daily living.

5

93. Mr. Benison has been on the NF/AH Waiver since October 2013 when

6 he moved out of the Subacute facility and into his own apartment in the community.

7 At that time, DHCS authorized 416 hours per month of Medi-Cal funded one-to-one

8 in-home, or “private duty” nursing care through the NF/AH Waiver, based on its

9 determination that Mr. Benison met the Subacute level of care. In order to remain

10 within the cost-cap limitation at the Subacute level of care, he is authorized for 16

11 hours nursing coverage daily from Monday through Friday, and 8 hours of nursing

12 coverage each on Saturdays and Sundays. Mr. Benison requires 24-hour care, and

13 because he lives alone, Mr. Benison supplements his nursing care with 260 hours of

14 unlicensed IHSS personal care aide hours per month. However, on weekends he

15 does not have any nursing coverage for 16 hours each day, which leaves him at risk.

16 Hence, a minimum of 8 hours more of private duty nursing each on Saturday and

17 Sunday is necessary to keep Mr. Benison safely in his home.

18 Mr. Benison’s Nursing Care Needs

19

94. As set forth in his Plan of Treatment approved by his physician, Mr.

20 Benison has frequent, ongoing, and unpredictable skilled care needs that must be

21 addressed by a licensed nurse. These include: monitoring Mr. Benison’s vital signs,

22 cardiac status and assessing for signs and symptoms of tachycardia (resting heart

23 rate faster than normal), ensuring Mr. Benison’s vital signs remain within

24 parameters listed in the physician’s orders, and instructing caregivers in proper vital

25 sign monitoring; assessing for signs and symptoms of pain; assessing for signs and

26 symptoms of skin breakdown, rash and perfusion; instructing caregivers in measures

27 to protect skin integrity; assessing for medication compliance, effectiveness and

28 complications and instructing caregivers in medication dosages, schedules, effects

Thomas v. Douglas: Complaint for Injunctive and Declaratory Relief

21

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 24 of 35 Page ID #:79

1 and side effects, and any food and drug interactions; assessing Mr. Benison’s level

2 of consciousness, motor and sensory reflexes, and for progression of his muscular

3 dystrophy; ensuring adequate respiratory function through trach suctioning,

4 effective trach care and ventilator support based on signs and symptoms of

5 respiratory distress; checking ventilator settings as per the physician orders;

6 assessing Mr. Benison’s lung fields, and assessing for clear, crackles, wheezing or

7 the absence of these in his breathing patterns; monitoring Mr. Benison’s trach stoma

8 for signs and symptoms of infection; monitoring Mr. Benison’s abdomen for signs

9 and symptoms of abdomen distention and constipation, and urinary tract infections;

10 and reporting significant findings and changes in Mr. Benison’s condition as

11 appropriate.

12 In-Home Nursing Authorization; Case Management and Habilitation Services

13

95. As of September 2014, the cost to the Medi-Cal program for Mr.

14 Benison’s home care, including 416 hours per month of private duty nursing, 260

15 hours of unlicensed IHSS aides and his medical equipment and supplies, was

16 approximately $180,219.00 per year. This is his maximum budget for NF/AH

17 Waiver services because of the cost-cap imposed by DHCS.

18

96. Since January 2014, Mr. Benison’s physician has ordered one-to-one

19 private duty nursing care for him so that he can receive the 24-hour care that he

20 needs to remain safely at home. Mr. Benison requested 24-hour nursing from

21 Defendants in February 2014. Defendants deferred his request for 24-hour nursing

22 and have not provided him with a written notice of action as to their decision.

23 However, because Mr. Benison lives on his own, he relies on an unlicensed live-in

24 IHSS aide as a backup care provider. In addition to the NF/AH Waiver cost cap

25 which would prevent Mr. Benison from receiving authorization for 24-hour nursing,

26 DHCS will also not authorize direct care services, or any combination of direct care

27 services, exceeding 24 hours of care per day under the NF/AH Waiver. NF/AH

28 Waiver at 196. Therefore, Plaintiff Benison needs 24 hours of nursing care per day,

Thomas v. Douglas: Complaint for Injunctive and Declaratory Relief

22

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 25 of 35 Page ID #:80

1 but he also cannot give up his live-in backup caregiver. Thus, given the limitations

2 of the existing NF/AH Waiver rules, he is requesting additional hours per month of

3 nursing care to ensure that he can receive round-the-clock care.

4

97. Additionally, Mr. Benison needs Case Management Services and

5 Habilitation services to help him organize his nurses and IHSS workers’ schedules,

6 enroll back in graduate studies, enable him to avail of social activities and

7 community services, and overall access a better quality of life. These services are

8 available through the NF/AH Waiver, but not available to Mr. Benison because of

9 the Subacute Waiver cost-cap.

10 DEFENDANTS’ ACTIONS PLACE PLAINTIFFS AT RISK OF

11 INSTITUTIONALIZATION

12

98. According to Plaintiffs’ medical professionals, home is the safest place

13 for them to maximize their health condition and prolong their lives. Placement in an

14 institution, however, will almost certainly cause health deterioration and possible

15 death within a short period of time.

16

99. Defendants are refusing to provide additional NF/AH Waiver services

17 for Plaintiffs solely due to the fact that DHCS has imposed a cost cap for the

18 Subacute level of care, which is without medical justification. Nor is it required by

19 federal law.

20

100. Defendants have placed an arbitrary cost-cap on home and community

21 based services at the Subacute level of care under the NF/AH Waiver, which is far

22 less than the actual institutional rate for a Subacute facility.

23

101. Defendants have great flexibility and discretion in their administration

24 of the NF/AH waiver. They have the authority to make modifications to ensure that

25 Medi-Cal recipients such as Plaintiffs receive sufficient and medically necessary

26 NF/AH Waiver services to avoid institutional placement and receive the necessary

27 services as their medical conditions require.

28

102. Plaintiffs’ needs can be reasonably accommodated by Defendants

Thomas v. Douglas: Complaint for Injunctive and Declaratory Relief

23

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 26 of 35 Page ID #:81

1 continuing to provide Plaintiffs with NF/AH Waiver services up to the rate that

2 Defendants would actually pay if Plaintiffs were to be admitted to a Subacute

3 facility; and/or modifying any of its Home and Community Based Waivers to permit

4 Plaintiffs to receive the NF/AH Waiver services that they require and that their

5 physicians ordered.

6

103. Defendants have the option to administer the NF/AH waiver so as not

7 to create a bias towards institutional placement. One option would be to increase

8 the cost-cap for the Subacute level of care of the NF/AH Waiver to a level that is

9 equal to the amount actually paid to Subacute facilities or utilize an aggregate cost

10 cap. Instead, Defendants have chosen to administer the waiver in such a way as to

11 discriminate against Plaintiffs and to place them at risk of institutional placement,

12 with life threatening consequences.

13

104. Without the appropriate level of NF/AH Waiver services to remain in

14 their homes, Plaintiffs will have no choice but institutional placement, which will

15 separate them from their family and community and also poses significant risks to

16 their health.

17 VII. LEGAL CLAIMS

18

FIRST CLAIM FOR RELIEF

19

(Defendant Director Toby Douglas)

20

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

21

105. Plaintiffs reallege and incorporate herein by reference each and every

22 allegation and paragraph set forth previously.

23

106. Plaintiffs are “qualified individuals with a disability” within the

24 meaning of the ADA in that they (1) have a physical impairment that substantially

25 limits one or more major life activities; and (2) meet the essential eligibility

26 requirements for community-based long-term care under California’s Medicaid

27 program.

28

107. Defendant Toby Douglas is the Director of Defendant DHCS, which

Thomas v. Douglas: Complaint for Injunctive and Declaratory Relief

24

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 27 of 35 Page ID #:82

1 has responsibility for providing Medi-Cal and state-funded home and community

2 based and institutional services, and is therefore a government entity subject to Title

3 II of the ADA. 42 USC §12131(1)(A) and (B).

4

108. Defendant’s denial and reduction of adequate and medically necessary

5 in-home nursing, and failure to provide Plaintiffs with medically necessary NF/AH

6 Waiver services, has denied Plaintiffs the services they need to remain safely in the

7 community, thereby placing them at risk of institutionalization in violation of the

8 ADA’s integration mandate.

9

109. Defendant has discriminated against Plaintiffs in ways that include

10 arbitrarily setting a cost-cap for the Subacute level of care of the NF/AH Waiver far

11 below the actual rate paid for institutional services in a Subacute facility, thus

12 denying Plaintiffs funds for home and community-based services that would

13 otherwise be available for institutional services.

14

110. Defendant has discriminated against Plaintiffs by failing to provide

15 reasonable modifications to programs and services in ways that include: failing to

16 increase the Subacute level of care cost-cap, within federal cost neutrality

17 limitations, to enable Plaintiffs to fund NF/AH Waiver services; and failing to offer

18 an exception to the Subacute level of care cost-cap that would enable Plaintiffs to

19 receive NF/AH Waiver services at a level adequate to meet their undisputed need.

20

111. By denying Plaintiffs adequate and necessary NF/AH Waiver services

21 commensurate with their actual need, as opposed to arbitrary service limitations,

22 Defendant has imposed eligibility requirements which unlawfully screens Plaintiffs

23 out from fully and equally enjoying NF/AH Waiver services, and from receiving

24 adequate care to remain safely at home.

25

112. Defendant has utilized criteria and methods of administration that

26 subject Plaintiffs to discrimination on the basis of disability, including risk of

27 unnecessary institutionalization, in ways that include: (1) designing and

28 implementing Home and Community Based Waivers which set arbitrarily low cost-

Thomas v. Douglas: Complaint for Injunctive and Declaratory Relief

25

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 28 of 35 Page ID #:83

1 caps for NF/AH Waiver services, while paying significantly higher rates for the

2 institutional alternative; and (2) imposing eligibility criteria, cost limitations and

3 other criteria not required by federal limitations, which restrict in-home care in favor

4 of institutional care.

5

113. Defendant’s actions are in violation of Title II of the ADA.

6

114. Pursuant to 42 U.S.C. § 12133, Plaintiffs are entitled to declaratory and

7 injunctive relief, as well as reasonable attorneys’ fees and costs incurred in bringing

8 this action.

9

SECOND CLAIM FOR RELIEF

10

(Defendant DHCS)

11

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

12

115. Plaintiffs reallege and incorporate herein by reference each and every

13 allegation and paragraph set forth previously.

14

116. Plaintiffs are “qualified individuals with a disability” within the

15 meaning of Section 504 in that their physical impairments substantially limits one or

16 more major life activities; and they meet the essential eligibility requirements in that

17 they are capable of living independently in their family home and/or in the most

18 integrated community setting possible, with assistance.

19

117. Defendant DHCS is a recipient of federal monies that provides Medi-

20 Cal home and community-based and institutional services and other Medi-Cal

21 services and is therefore a government entity subject to Section 504. 29 USC

22 794(b).

23

118. Defendant’s denial and reduction of adequate and necessary in-home

24 nursing and refusal to provide NF/AH Waiver services has barred Plaintiffs from

25 receiving the services they need to continue to live in the community, thereby

26 placing them at imminent risk of institutionalization in violation of Section 504’s

27 integration mandate.

28

119. Defendant DHCS discriminates against Plaintiffs in ways that include

Thomas v. Douglas: Complaint for Injunctive and Declaratory Relief

26

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 29 of 35 Page ID #:84

1 setting a cost-cap for the Subacute level of care of the NF/AH Waiver far below the

2 actual rate paid for institutional services in a Subacute facility, thus denying

3 Plaintiffs funds for home and community-based services that would otherwise be

4 available for institutional services.

5

120. Defendant has discriminated against Plaintiffs by failing to provide

6 reasonable modifications to programs and services in ways that include: failing to

7 increase the Subacute level of care cost-cap, within federal cost neutrality

8 limitations, to enable Plaintiffs to receive medically necessary NF/AH Waiver

9 services; and failing to offer an exception to the Subacute level of care cost-cap that

10 would enable Plaintiffs to receive NF/AH Waiver services at a level adequate to

11 meet their undisputed needs.

12

121. By denying Plaintiffs adequate and necessary NF/AH Waiver services

13 commensurate with their actual need, as opposed to arbitrary service limitations,

14 Defendant has imposed eligibility requirements which unlawfully screen them out

15 from fully and equally enjoying in-home nursing services, and from receiving the

16 care they need to remain safely at home.

17

122. Defendant has utilized criteria and methods of administration that

18 subject Plaintiffs to discrimination on the basis of disability, including risk of

19 unnecessary institutionalization, by, including but not limited to the following: (1)

20 designing and implementing Home and Community Based Waivers which set

21 arbitrarily low cost-caps for NF/AH Waiver services, while paying significantly

22 higher rates for the institutional alternative; and (2) imposing eligibility criteria, cost

23 limitations and other criteria not required by federal limitations, which restrict in-

24 home care in favor of institutional care.

25

123. Defendant’s actions violate Section 504.

26 VIII. ALLEGATIONS CONCERNING INJUNCTIVE AND DECLARATORY

27

RELIEF

28

124. Defendants’ actions, as alleged herein, have resulted in, and will

Thomas v. Douglas: Complaint for Injunctive and Declaratory Relief

27

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 30 of 35 Page ID #:85

1 continue to result in irreparable injury to Plaintiffs caused by the refusal to cover

2 medically necessary services under the NF/AH waiver as a result of the arbitrary

3 cost cap and which they need to remain at home with his family and avoid

4 unnecessary institutional placement. Plaintiffs have no plain, speedy or adequate

5 remedy at law.

6

125. An actual controversy exists between Plaintiffs and Defendants, in that

7 Plaintiffs claim that Defendants have violated their rights under the ADA, other

8 federal anti-discrimination laws, and Defendants deny all such contentions.

9

126. Defendant Douglas can either adopt or “alternate” (reject in whole or

10 part) any administrative decision arising out of claims against DHCS. California

11 Manual of Policies and Procedures, Sections 22-061 and 22-062. Therefore, the

12 administrative appeal process offers no remedy or protection to Plaintiffs, as the

13 Defendants in this action are the very entity which will make a determination of

14 what NF/AH Waiver services will be provided to Plaintiffs.

15 IX. REQUEST FOR RELIEF

16

WHEREFORE, Plaintiffs prays that the Court order the following relief and

17 remedies on behalf of themselves and all others similarly situated:

18

A. Assume jurisdiction over this action and maintain continuing

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

20

B. Declare that Defendants’ failure to authorize Plaintiffs with sufficient

21 NF/AH Waiver services to meet their undisputed needs, and Defendants’ policies,

22 practices, acts and omissions as set forth above, violate the American with

23 Disabilities Act, and Section 504 of the Rehabilitation Act.

24

C. Grant a temporary restraining order and preliminary injunction

25 enjoining Defendants, their officers, agents, employees, attorneys, and all persons

26 who are in active concert or participation with them from reducing medically

27 necessary Medi-Cal funded in-home care below Mr. Thomas’ current level of 450

28 hours per month of licensed vocational nursing care, 2 hours per month of RN care

Thomas v. Douglas: Complaint for Injunctive and Declaratory Relief

28

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 31 of 35 Page ID #:86

1 and 240.04 hours per month of IHSS personal care services until such time as this

2 matter may be finally decided.

3

D. Grant a permanent injunction enjoining Defendants, their officers,

4 agents, employees, attorneys, and all persons who are in active concert or

5 participation with them from discriminating against Plaintiffs and thereby placing

6 them at risk of unnecessary institutionalization by:

7

i. Failing to offer reasonable modifications to their programs and

8

policies to enable Plaintiffs to receive medically necessary in-

9

home nursing as ordered by their physicians;

10

ii. Failing to offer reasonable modifications to their programs and

11

policies to enable Plaintiffs to receive other NF/AH Waiver

12

services like Case Management and Habilitation services;

13

iii. Imposing eligibility requirements which unlawfully screen

14

Plaintiffs out of the NF/AH Waiver program and prevent them

15

from fully and equally enjoying NF/AH Waiver services, and

16

from receiving adequate care to remain safely at home;

17

iv. Utilizing criteria and methods of administration that subject

18

Plaintiffs to discrimination on the basis of disability, including

19

placing them at risk of unnecessary institutionalization.

20

E. Issue an order requiring Defendants to authorize Plaintiffs with Medi-

21 Cal funded services through the Nursing Facility/Acute Hospital Waiver or other

22 appropriate Home and Community Based Waivers, subject to federal cost neutrality

23 requirements, to enable them to receive services commensurate with their needs, and

24 as identified by their treating physicians, and as medically necessary.

25

F. Retain jurisdiction over the Defendants until such time as the Court is

26 satisfied that Defendants’ unlawful policies, practices, and acts complained of herein

27 cannot recur.

28

G. Award Plaintiffs the costs of this action and reasonable attorneys’ fees

Thomas v. Douglas: Complaint for Injunctive and Declaratory Relief

29

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 32 of 35 Page ID #:87

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 33 of 35 Page ID #:88

Case 2:14-cv-080U1N3I-TFEMD OST-AATGESRDISDTRoIcCuTmCOeUnRtT4, CEFNiTleRdAL1D0I/S2T3R/I1C4T OFPCaAgLeIF3O4RNoIAf 35 Page ID #:89
CIVIL COVER SHEET

VIII. VENUE: Your answers to the questions below will determine the division of the Court to which this case will be initially assigned. This initial assignment is subject
to change, in accordance with the Court's General Orders, upon review by the Court of your Complaint or Notice of Removal.

QUESTION A: Was this case removed

from state court?

Yes

No

If "no, " skip to Question B. If "yes," check the box to the right that applies, enter the corresponding division in response to Question E, below, and continue from there.

STATE CASE WAS PENDING IN THE COUNTY OF:
Los Angeles, Ventura, Santa Barbara, or San Luis Obispo Orange Riverside or San Bernardino

INITIAL DIVISION IN CACD IS:
Western Southern Eastern

QUESTION B: Is the United States, or B.1. Do 50% or more of the defendants who reside in one of its agencies or employees, a the district reside in Orange Co.?

PLAINTIFF in this action?

check one of the boxes to the right

Yes

No

YES. Your case will initially be assigned to the Southern Division. Enter "Southern" in response to Question E, below, and continue from there.
NO. Continue to Question B.2.

If "no, " skip to Question C. If "yes," answer Question B.1, at right.

B.2. Do 50% or more of the defendants who reside in the district reside in Riverside and/or San Bernardino Counties? (Consider the two counties together.)

check one of the boxes to the right

YES. Your case will initially be assigned to the Eastern Division. Enter "Eastern" in response to Question E, below, and continue from there.
NO. Your case will initially be assigned to the Western Division. Enter "Western" in response to Question E, below, and continue from there.

QUESTION C: Is the United States, or C.1. Do 50% or more of the plaintiffs who reside in the one of its agencies or employees, a district reside in Orange Co.?

DEFENDANT in this action?

check one of the boxes to the right

Yes

No

YES. Your case will initially be assigned to the Southern Division. Enter "Southern" in response to Question E, below, and continue from there.
NO. Continue to Question C.2.

If "no, " skip to Question D. If "yes," answer Question C.1, at right.

C.2. Do 50% or more of the plaintiffs who reside in the district reside in Riverside and/or San Bernardino Counties? (Consider the two counties together.)

YES. Your case will initially be assigned to the Eastern Division. Enter "Eastern" in response to Question E, below, and continue from there.

check one of the boxes to the right
QUESTION D: Location of plaintiffs and defendants?

NO. Your case will initially be assigned to the Western Division. Enter "Western" in response to Question E, below, and continue from there.

A. Orange County

B. Riverside or San Bernardino County

C. Los Angeles, Ventura, Santa Barbara, or San Luis Obispo County

Indicate the location(s) in which 50% or more of plaintiffs who reside in this district reside. (Check up to two boxes, or leave blank if none of these choices apply.) Indicate the location(s) in which 50% or more of defendants who reside in this district reside. (Check up to two boxes, or leave blank if none of these choices apply.)

D.1. Is there at least one answer in Column A?

Yes

No

If "yes," your case will initially be assigned to the SOUTHERN DIVISION.
Enter "Southern" in response to Question E, below, and continue from there. If "no," go to question D2 to the right.

D.2. Is there at least one answer in Column B?

Yes

No

If "yes," your case will initially be assigned to the EASTERN DIVISION.
Enter "Eastern" in response to Question E, below. If "no," your case will be assigned to the WESTERN DIVISION.
Enter "Western" in response to Question E, below.

QUESTION E: Initial Division?

INITIAL DIVISION IN CACD

Enter the initial division determined by Question A, B, C, or D above:

Western

QUESTION F: Northern Counties?

Do 50% or more of plaintiffs or defendants in this district reside in Ventura, Santa Barbara, or San Luis Obispo counties?

Yes

No

CV-71 (06/14)

CIVIL COVER SHEET

Page 2 of 3

Case 2:14-cv-08013-FMO-AGR Document 4 Filed 10/23/14 Page 35 of 35 Page ID #:90

 </s> Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 1 of 40 Page ID #:726

1 Elissa Gershon, State Bar No. 169741
Elissa.Gershon@disabilityrightsca.org

2 Anne Hadreas, State Bar No. 253377
Anne.hadreas@disabilityrightsca.org
3 Deborah Gettleman, State Bar No. 267309

4

Deborah.gettleman@disabilityrightsca.org DISABILITY RIGHTS CALIFORNIA

5

1330 Broadway, Suite 500 Oakland, CA 94612

6

Telephone: (510) 267-1200 Facsimile: (510) 267-1201

7
Marilyn Holle, State Bar No. 61530

8 Marilyn.Holle@disabilityrightsca.org
Betsy Havens, State Bar No. 296842
9 Betsy.Havens@disabilityrightsca.org

DISABILITY RIGHTS CALIFORNIA
10 350 South Bixel Street, Suite 290

11

Los Angeles, California 90017 Telephone: (213) 213-8000

12 Fax: (213) 213-8001

13

Attorneys for Plaintiffs JERRY THOMAS, SEAN BENISON, JUAN PALOMARES and IN SPIRIT

14

15

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

16

17 JERRY THOMAS, by and through his ) CASE NO. 14-CV-08013-FMO (AGRx)

18

guardian ad litem BEVERLY THOMAS, ,) SEAN BENISON, JUAN PALOMARES )

SECOND AMENDED COMPLAINT

19 and IN SPIRIT

) FOR INJUNCTIVE AND ) DECLARATORY RELIEF

20

Plaintiffs,

v.

) ) Courtroom: 22, 5th Floor

21

) Judge:

Hon. Fernando M. Olguin

JENNIFER KENT, Director of the

) Action Filed: 10/25/2014

22 Department of Health Care Services, State ) Trial Date: 04/26/2016

of California DEPARTMENT OF

)

23 HEALTH CARE SERVICES,

)

24

Defendants.

) )

25

26

27

28

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 2 of 40 Page ID #:727

1 I. INTRODUCTION

2

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

3 Defendants Department of Health Care Services and its Director, Jennifer Kent

4 ("DHCS" or "Defendants") from continuing their illegal practices which result in

5 denial of critically needed Medi-Cal funded in-home services to individuals such as

6 Plaintiffs Jerry Thomas, Sean Benison, and Juan Palomares, and the clients of

7 organizational Plaintiff IN SPIRIT. Failure to receive these services will result in

8 severe harm and potential institutionalization of these individuals with disabilities.

9 Due to their fragile medical conditions, placement in an institution is likely to result

10 in dire health consequences and even death. Institutional care for Plaintiffs would

11 also cost the State significantly more than it would to keep them safely in their own

12 homes.

13

2. Individual Plaintiffs have severe disabilities and chronic medical

14 conditions: Plaintiff Jerry Thomas is diagnosed with Progressive Supranuclear Palsy

15 and Post-Polio Syndrome. Plaintiff Sean Benison has advanced hereditary

16 progressive Muscular Dystrophy. Plaintiff Juan Palomares has a complete spinal

17 cord injury at the 4th vertebrae in the cervical area (C-4); the spinal cord injury also

18 caused autonomic dysreflexia, which is instability in his nervous system that can

19 cause unpredictable and potentially life-threatening blood pressure changes. Due to

20 their health conditions, Plaintiffs are quadriplegic and cannot move on their own.

21 Plaintiffs Thomas and Benison have tracheal tubes connected to ventilators to help

22 them breathe. Plaintiff Thomas receives nutrition and hydration via a Gastrostomy

23 feeding tube.

24

3. Although Plaintiffs meet the criteria for placement in nursing

25 institutions, Plaintiffs have been able to remain in their communities and close to

26 their families because of in-home care available to them in their homes under the

27 Medi-Cal Home and Community-Based Services Nursing Facility/Acute Hospital

28 Waiver (“NF/AH Waiver”), administered by Defendants.

1
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 3 of 40 Page ID #:728

1

4. All three Plaintiffs live in their own homes, with round-the-clock care

2 provided by licensed nurses, and unlicensed paid and/or unpaid attendants.

3 However, Plaintiffs also have unmet care needs. Pursuant to their doctors’ orders,

4 Plaintiff Thomas needs 24 hour nursing care, and Plaintiff Benison needs additional

5 nursing care, to assess and address their complex and unpredictable needs, including

6 monitoring their ventilators and oxygen levels, preparing and administering

7 medications, and clearing fluids from their lungs and tracheotomy tubes. Plaintiff

8 Palomares needs, among other things, nursing care to manage his complicated

9 catheter care, and monitor and assess his unstable and unpredictable health

10 conditions; additional attendant hours so that he can be repositioned and cared for

11 more frequently to prevent health crises; and reinstatement of RN case management.

12 Plaintiff Benison, who lives alone, also requires Case Management and Habilitation

13 services, which are available under the NF/AH Waiver.

14

5. Plaintiffs have all requested additional in-home care services from

15 Defendants, so that they can continue living safely in their homes and communities.

16 Defendants have denied these requests. The sole reason Plaintiffs are not able to get

17 these critically needed services is because Defendants have placed arbitrary cost

18 limitations on services available under the NF/AH Waiver.

19

6. For Waiver participants like Plaintiffs Thomas and Benison, who have

20 been determined to meet the Subacute level of care, Medi-Cal would pay $271,697

21 per year for institutional placement in a Subacute facility; however, Defendants have

22 capped the budget for comparable in-home services funded through the NF/AH

23 Waiver at $180,219 per year, which is at least $90,000 below the actual cost of

24 equivalent care in a Subacute facility. The cost of the additional nursing and other

25 NF/AH Waiver services requested by Plaintiffs Thomas and Benison would cost

26 less than placement in a Subacute facility.

27

7. Similarly, for Waiver participants like Plaintiff Palomares, who have

28 been determined to meet the Nursing Facility Level B (“NF-B”) Level of Care,

2
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 4 of 40 Page ID #:729

1 Medi-Cal would pay approximately $70,000 per year for institutional placement in a

2 Nursing Facility; however, Defendants have capped the budget for in-home services

3 funded through the NF/AH Waiver at $48,180.00 per year, which is more than

4 $21,000 below the actual cost of equivalent care in a Nursing Facility. The cost of

5 the additional nursing and other NF/AH Waiver services requested by Plaintiff

6 Palomares would cost less than placement in a Nursing Facility.

7

8. The NF/AH Waiver cost-caps at all levels of care are significantly

8 below the rate Medi-Cal pays to institutions at the equivalent level of care.

9

9. Defendants have the discretion and the ability to modify the NF/AH

10 Waiver to enable Plaintiffs to receive the skilled nursing care and other services they

11 need to remain safely at home. But, they have refused to provide these essential

12 services on the grounds that it exceeds their arbitrary cost-caps.

13

10. Defendants’ actions violate the Americans with Disabilities Act of

14 1990 (“ADA”), (42 U.S.C. §§ 12101-12213 (2008)), Section 504 of the

15 Rehabilitation Act of 1973 (“Section 504”), (29 U.S.C. §§ 794-794a (2014)), and

16 California Government Code section 11135 (Cal. Gov’t. Code § 11135 (2011)).

17

11. Under the ADA and Section 504, a public agency such as DHCS has a

18 duty to provide services to people with disabilities in the “most integrated setting

19 appropriate to their needs” and to prevent unnecessary institutionalization. The

20 most integrated setting for the individual Plaintiffs and clients of IN SPIRIT is to

21 continue living in their homes in the community, with adequate NF/AH Waiver

22 services to meet their significant needs. Placing individuals with disabilities such as

23 Plaintiffs at risk of unnecessary institutionalization in order to receive the care they

24 need violates the ADA.

25

12. Under the ADA, Defendants also have an obligation to use methods of

26 administration that do not discriminate against individuals with disabilities such as

27 Plaintiffs. Defendants’ failure to ensure that individuals with disabilities like

28 Plaintiffs are provided with adequate NF/AH Waiver services to continue living

3
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 5 of 40 Page ID #:730

1 safely in their homes, and their decision to set funding levels for services that are

2 biased in favor of institutional care results in discrimination against Plaintiffs in the

3 administration of the Medi-Cal program.

4 II. JURISDICTION

5

13. This is an action for declaratory and injunctive relief for violations of

6 Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 (2008) and

7 Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (2014).

8

14. Jurisdiction is based on 28 U.S.C. §§ 1331 (1980) and 1343 (1979).

9 Plaintiffs’ claims for declaratory and injunctive relief are authorized under

10 28 U.S.C. §§ 2201 (2010) and 2202 (1948). At all times relevant to this action,

11 Defendants have acted under color of state law.

12

15. The Court has Supplemental Jurisdiction over Plaintiffs’ state claim

13 pursuant to 28 U.S.C. § 1367 (1990) and California Government Code section

14 11139 (2001).

15 III. VENUE

16

16. Venue is proper in the Central District of California pursuant to

17 28 U.S.C. § 1391(b) (2011), because the Defendants operate and perform their

18 official duties therein and thus reside therein for purposes of venue, and because a

19 substantial part of the events or omissions giving rise to the claims herein occurred in

20 the Central District of California. Plaintiff Jerry Thomas lives and receives Medi-

21 Cal services in Orange County, which is in the Central District of California.

22 Plaintiff Juan Palomares lives and receives Medi-Cal services in Los Angeles

23 County, which is in the Central District of California. Plaintiff Sean Benison lives

24 and receives Medi-Cal services in Ventura County, which is in the Central District

25 of California. Defendant DHCS operates the Medi-Cal program, conducts business

26 and provides Medi-Cal services to Plaintiffs in Orange County, Los Angeles County

27 and Ventura County, all in the Central District of California.

28

4
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 6 of 40 Page ID #:731

1 IV. PARTIES

2 Organizational Plaintiff

3

17. Organizational Plaintiff IN SPIRIT is a non-profit organization which

4 provides financial aid to people with disabilities to help them pay for personal care

5 attendants to enable them to live in their own homes. IN SPIRIT’s mission is to

6 empower individuals with disabilities to sustain their health, continue their

7 participation in their families and communities, and avoid nursing facility

8 placement. IN SPIRIT has been directly injured by Defendants’ actions, which

9 impede its ability to carry out its mission to assist people with disabilities in

10 accessing community support services. IN SPIRIT has provided and currently

11 provides financial assistance to individuals on the NF/AH Waiver, in order to

12 supplement their limited at-home care services covered by the Waiver. Because of

13 its commitment to provide financial support for attendant care for needy, high-level

14 quadriplegics, IN SPIRIT will serve clients on the NF/AH Waiver in the future. IN

15 SPIRIT has had to divert scarce resources from other potential clients to NF/AH

16 Waiver recipients to pay for services that, but for the cost-caps, would be funded by

17 the NF/AH waiver.

18 Individual Plaintiffs

19

18. Each individual Plaintiff is a “qualified person with a disability” within

20 the meaning of all applicable statutes, including 42 U.S.C. §12131(2) (1990) and 29

21 U.S.C. § 705(20)(B) (2014). Plaintiffs have been and continue to be Medi-Cal

22 beneficiaries and are on the NF/AH Waiver.

23

19. Plaintiff Jerry Thomas is 73 years old and has Progressive Supranuclear

24 Palsy (“PSP”), a degenerative brain disorder that causes serious and progressive

25 problems with gait and balance, eye movement, cognitive difficulties, and muscle

26 weakness. His disease is progressive and thus symptoms will worsen over time. In

27 addition to PSP, Mr. Thomas has Post-Polio Syndrome, quadriplegia, chronic pain

28 syndrome, dysphagia (difficulty swallowing), chronic respiratory failure, recurrent

5
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 7 of 40 Page ID #:732

1 pneumonia and/or bronchitis, chronic constipation, chronic atelectasis (a complete

2 or partial collapse of the lung), recurrent episodes of urinary tract infections

3 (“UTIs”), and hypothyroidism, among other conditions. After 14 years of

4 institutional placement, Mr. Thomas now resides at home with his wife of over 30

5 years, Beverly Thomas, who brought him home from a Subacute facility in 2013.

6 She serves as his Guardian ad Litem in this litigation.

7

20. Plaintiff Sean Benison is 43 years old and has advanced hereditary

8 progressive Becker Muscular Dystrophy; is quadriplegic; and has chronic

9 respiratory failure, chronic pain disorder, anxiety disorder, DVT

10 (thromboembolism) prophylaxis and reflux esophagitis. He lives on his own in his

11 apartment, where he moved in October 2013 after living for two years in a Subacute

12 facility.

13

21. Plaintiff Juan Palomares is 38 years old and had a complete spinal cord

14 injury at the 4th vertebrae in the cervical (neck) part of his spine in 2005. He has

15 quadriplegia and is dependent on others for all of his daily care needs. He is

16 susceptible to recurring urinary tract infections and has recurring difficulties with

17 his suprapubic catheter tube clogging. He has chronic pain, which must be managed

18 with medications, including narcotics, on an as-needed basis. Mr. Palomares is

19 subject to frequent (currently 5-6 episodes a week) and life threatening autonomic

20 dysreflexia, which is an episode of acute, uncontrolled hypertension for which he

21 requires frequent and skilled preventative care. Mr. Palomares lives with his father

22 who is his primary caregiver.

23

22. Plaintiffs Thomas and Benison have a tracheal tube that is connected to

24 a ventilator to help them breathe. Due to their mucous secretions and their inability

25 to swallow due to the tracheotomy and loss of muscle function, Plaintiffs Thomas

26 and Benison must be suctioned as needed, sometimes as frequently as four to five

27 times an hour, when saliva builds up in the mouth, nose, and throat to avoid pooling

28 of mucous or any fluid in the lungs. If fluid does go into the lungs, it could impair

6
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 8 of 40 Page ID #:733

1 oxygen exchange, resulting in lack of oxygen and permanent damage to organs

2 (including brain injury), pneumonia, and infection. Plaintiff Benison uses a cuffed

3 tracheotomy which is uncuffed during the day and allows for the possibility of

4 communication/speech, but also allows fluid to go into the lungs if not timely

5 suctioned. Plaintiff Thomas uses a cuffed trach at all times. During the night,

6 Plaintiff Benison also uses a cuffed tracheotomy so he is not able to speak – which

7 can be more dangerous since he is not able to communicate if they are in distress.

8 Further, air leaks out of the cuff, and a nurse is required to keep adding air to the

9 cuff and to monitor the ventilator settings to ensure Plaintiffs are properly

10 ventilated: too much air puts pressure on the lungs and too little air can make them

11 unconscious. Plaintiff Thomas has a Gastrostomy tube (“G-tube”) for feeding and

12 medication administration.

13

23. Plaintiffs are completely dependent on medical technologies for

14 survival. Plaintiffs use wheelchairs for mobility at all times. Plaintiffs cannot

15 move, turn, feed, dress, bathe or take care of themselves. They need total care for

16 every daily activity.

17

24. Plaintiffs Thomas and Benison's in-home nursing care is provided by

18 licensed vocational nurses (“LVNs” or “nurses”). LVNs are licensed to provide

19 skilled nursing care in many settings including hospitals. 42 C.F.R. § 409.31(a)

20 (2005); 22 Cal. Code Regs. §§ 70055(a)(16), 70055(a)(16) and 70217(a) (2013).

21 These one-on-one skilled nursing services have been ordered by Plaintiffs Thomas

22 and Benison’s physicians because their care requires the exercise of judgment

23 informed by experience and expertise in addressing the care needs of persons with

24 severe disabilities and chronic illnesses. The services Plaintiffs Thomas and

25 Benison require cannot safely be provided by untrained or unskilled individuals and

26 are medically necessary.

27

25. Plaintiff Palomares’ in-home care includes In-Home Supportive

28 Services and Waiver Personal Care Services. Because of the severity of his

7
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 9 of 40 Page ID #:734

1 disability, his constant risk of autonomic dysreflexia and complications related to his

2 catheter, Plaintiff Palomares requires, but does not receive, additional in-home

3 attendant care, nursing care by licensed nurses, and nursing case management.

4 Defendant Department of Health Care Services

5

26. Defendant California Department of Health Care Services (“DHCS”)

6 administers the California Medicaid program, called “Medi-Cal.” DHCS is the

7 single state agency responsible for the administration of the Medi-Cal program.

8

27. Defendant Jennifer Kent is DHCS’ current Director and is sued only in

9 her official capacity. Director Kent is responsible for directing, organizing, and

10 administering the Medi-Cal program, including Medi-Cal Home and Community-

11 Based Services Waivers, in accordance with all applicable laws and regulations. As

12 such, she is responsible for DHCS’ compliance with state and federal laws

13 governing the Medi-Cal program.

14 V. STATUTORY AND REGULATORY FRAMEWORK

15

A. THE MEDICAID PROGRAM

16

28. Medicaid is a joint federal and state medical assistance program for

17 certain groups of low-income people, including children. 42 U.S.C. §§ 1396-1396v

18 (2014). California has elected to participate in the Medicaid program, and so must

19 comply with the requirements of the federal Medicaid Act and its implementing

20 regulations.

21

29. The purpose of Medicaid is to furnish, as far as practicable, “medical

22 assistance on behalf of . . . aged, blind or disabled individuals, whose income and

23 resources are insufficient to meet the costs of necessary medical services” and “to

24 help such families and individuals to attain or retain capability for independence or

25 self-care . . . .” 42 U.S.C. § 1396 (2014).

26

30. Participating States are reimbursed by the federal government for a

27 portion of the cost of providing Medicaid benefits. See 42 U.S.C. § 1396b (2010).

28

8
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 10 of 40 Page ID #:735

1 The remaining funding for the Medi-Cal program comes from the State and from

2 counties.

3

31. States participating in Medicaid must designate a “single state agency”

4 to administer or supervise the administration of the Medicaid program. 42 U.S.C.

5 § 1396a(a)(5) (2014). DHCS is the single state agency so designated in California.

6

32. The California Medi-Cal program provides an array of medical

7 services, treatments, and therapies that are authorized based on individuals’ meeting

8 “medical necessity” criteria. Welf. & Inst. Code §§ 14059 (1969), 14059.5 (1985),

9 and 14133.3 (2004); 22 Cal. Code Regs. § 51303(a) (2013).

10 Medi-Cal Home and Community-Based Services Waivers

11

33. The Centers for Medicare and Medicaid (“CMS”) is the federal agency

12 that oversees the administration of the Medicaid programs offered by each state.

13 CMS has the authority to waive certain provisions of federal Medicaid law to allow

14 states to provide home and community-based services (“HCBS”) in lieu of

15 institutional care, for targeted groups of individuals who otherwise would require

16 care in a medical facility. 42 U.S.C. § 1396n(c)(1) (2010).

17

34. DHCS has been mandated by the Legislature to “seek all necessary

18 waivers . . . in order to provide in-home and community-based care.” Welf. & Inst.

19 Code §§ 14132(t) (2014), 14137 (1986). DHCS routinely seeks and secures federal

20 approval to renew and amend HCBS Waivers within permissible federal limitations.

21

35. HCBS Waivers in California include the Nursing Facility/Acute

22 Hospital (“NF/AH”) Waiver. The purpose of the NF/AH Waiver is to provide

23 Medi-Cal beneficiaries with long-term medical conditions who meet one of the

24 designated "levels of care" described below, the option of returning to and/or

25 remaining in their homes or home-like community settings in lieu of

26 institutionalization. The NF/AH Waiver application, which is submitted and

27 approved by CMS, governs DHCS’ administration of NF/AH Waiver services. The

28 current version of the Waiver is State of California Department of Health Care

9
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 11 of 40 Page ID #:736

1 Services, Application for § 1915(c) HCBS Waiver Nursing Facility/Acute Hospital

2 (NF/AH) Waiver, (12/1/2012 - 12/31/2016),

3 http://www.dhcs.ca.gov/services/ltc/Documents/NFAH%20Transition%20and%20D

4 iversion%20Waiver%2012-1-2012.pdf ("NF/AH Waiver") at 7-8.

5

36. In seeking federal approval for the NF/AH Waiver, DHCS gave

6 assurances to CMS, including that: (a) Necessary safeguards have been taken to

7 protect the health and welfare of participants receiving services under the NF/AH

8 Waiver; and, (b) Plans of Care are responsive to NF/AH Waiver participants’ needs.

9 NF/AH Waiver at 9-10.

10

37. Under the umbrella of the NF/AH HCBS Waiver, DHCS administers

11 several HCBS waivers which each correspond to an institutional level of care. The

12 relevant levels of care for adults are: Nursing Facility Level A or B (“NF-A" and"

13 NF-B”), Nursing Facility Subacute (“Subacute”), and Acute Hospital. Each of the

14 HCBS Waivers contained in the NF/AH Waiver offers an array of home and

15 community-based services, discussed below.

16

38. The level of care criteria for the NF/AH Home and Community-Based

17 Services Waivers explicitly describe the type and level (or severity) of functional

18 limitations and/or skilled nursing needs an individual must have to be admitted to an

19 institutional setting. Upon meeting those eligibility criteria, or level of care, an

20 individual may qualify for corresponding NF/AH HCBS Waiver services.

21

39. California offers various services under the NH/AH Waiver, including

22 Private Duty Nursing, Waiver Personal Care Services, Case Management and

23 Habilitation services that Plaintiffs are seeking. NF/AH Waiver at 59.

24

40. “Private duty nursing” services means individual and continuous care

25 (in contrast to part-time or intermittent care) provided by a licensed nurse or a

26 certified home health aide employed by a home health agency within the scope of

27 state law. Private duty nursing services are provided in a recipient’s home, home-

28

10
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 12 of 40 Page ID #:737

1 like environment or an approved out-of-home setting. 42 U.S.C. § 1396d(a)(9)

2 (2012); 42 C.F.R. § 440.80 (1987); NF/AH Waiver at 196.

3

41. “Case Management” services are designed to assess the participant and

4 determine the need for medical, psycho-social, social and other services and to assist

5 participants in gaining access to those needed services, regardless of the funding

6 source, to ensure the participant’s health and safety and support of his/her home and

7 community-based program. Case Managers also assist in securing personal care

8 providers, work with the participant and his/her physician in developing goals and

9 identifying a course of action to respond to the assessed needs of the individual, as

10 well as oversee the implementation of the services described in the Plan of

11 Treatment. Case Management responsibilities include assessing, care planning,

12 locating, coordinating, and monitoring services for community-based participants on

13 the waiver. Case Management may be provided by an array of provider types.

14 NF/AH Waiver at 59-72.

15

42. “Habilitation Services” are provided in a participant’s home or an out-

16 of-home non-facility setting and are designed to assist the participant in acquiring,

17 retaining, and improving self-help, socialization, and adaptive skills necessary to

18 reside successfully in the person’s natural environment. Habilitation services

19 include training on: the use of public transportation; personal skills development in

20 conflict resolution; community participation; developing and maintaining

21 interpersonal relationships; personal habits; daily living skills (cooking, cleaning,

22 shopping, money management) and community resource awareness to support

23 independence in the community. It also includes assistance with: selecting and

24 moving into a home; locating and choosing suitable housemates; locating household

25 furnishings; settling disputes with landlords; managing personal financial affairs;

26 recruiting, screening, hiring, training, supervising, and dismissing personal

27 attendants; dealing with and responding appropriately to governmental agencies and

28

11
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 13 of 40 Page ID #:738

1 personnel; asserting civil and statutory rights through self-advocacy, and building

2 and maintaining interpersonal relationships. NF/AH Waiver at 72-84.

3

43. “Waiver Personal Care services” (“WPCS”) are services designed to

4 assist Waiver participants in gaining independence in their activities of daily living

5 and preventing social isolation, and assisting Waiver participants in remaining in

6 their homes and being part of their communities. WPCS includes, inter alia,

7 assistance with activities of daily living, adult companionship, housekeeping, food

8 shopping, and other assistance to promote the participant’s highest level of

9 independence in self-care. NF/AH Waiver at 99-100. In order to meet federal cost-

10 neutrality requirements, the NF/AH Waiver contains assurances that, in the

11 aggregate for the entire NF/AH Waiver population, services provided in the

12 community pursuant to the NF/AH Waiver will not exceed the cost of services in the

13 institution designated for comparable care. NF/AH Waiver at 10. Defendants,

14 however, have chosen to use an individual maximum benefit level, rather than an

15 aggregate cost-cap. Id. at 26-27. Thus, each of the Waivers within the NF/AH

16 HCBS Waiver correspond to an institutional level of care and have individual “cost-

17 caps” depending on the Medi-Cal rate for their corresponding facility. These cost-

18 caps allow a qualifying individual to choose from a menu of available home and

19 community-based services but only up to the cost-cap for his or her level of care set

20 by DHCS in the applicable HCBS Waiver. NF/AH Waiver at 26-27.

21

44. Defendants have set NF/AH Waiver cost-caps at all levels of care

22 significantly below the annual rate Medi-Cal pays to institutions of the same level of

23 care, as set forth below1:

24

25

26
27 1 The current NF/AH Waiver contains only the Waiver cost-caps, but not the corresponding
institutional rates. NF/AH Waiver at 27-28. The annual institutional rate is contained in the
28 previous version of the NF/AH Waiver and is calculated using the weighted daily average rate for
each facility type for 365 days a year. 12
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 14 of 40 Page ID #:739

1

Annual Institutional Rate (Based on 2007 NF/AH

Annual Waiver Cost-Caps (Current in 2012 NF/AH

2 Institutional Level of Care

Waiver)

Nursing Facility (NF)-A

$34,388

Waiver) $29,548

3

4 Nursing Facility (NF)-B

$56,0742

$48,180

5 NF-B Pediatric

$110,280

$101,882

6 NF-Distinct Part

$124,342

$77,600

7 NF-Subacute, Adult

$271,697

$180,219

8 NF-Subacute, Pediatric
9
Acute Hospital
10

$282,574 $437,757

$240,211 $305,283

11

45. For individuals such as Mr. Thomas and Mr. Benison, who meet the

12 institutional criteria and would otherwise be placed in a Subacute nursing facility,

13 Defendants have arbitrarily set the cost-cap for NF/AH Waiver services at the adult

14 Subacute level of care at $180,219, which is more than $90,000 below the rate for a

15 Subacute facility. NF/AH Waiver at 27.

16

46. For individuals such as Plaintiff Palomares, who meet the institutional

17 criteria for and would otherwise be placed in a Nursing Facility Level B, Defendants

18 have arbitrarily set the cost-cap for NF/AH Waiver services at the Nursing Facility-

19 B level of care at $48,180, which is more than $21,000 below the current rate of

20 $70,000 for a Nursing Facility-B facility. NF/AH Waiver at 27. Moreover, the

21 NF/AH Waiver cost-cap at the Nursing Facility-B level of care has remained flat at

22 the 2007 level, while Nursing Facility level B facilities have received substantial

23 rate increases each year.

24

47. Defendants will not authorize a level of HCBS waiver funding for

25 home-based services which is comparable to the level of funding Medi-Cal would

26 otherwise pay for institutional care. However, federal cost-neutrality requirements

27

28 2 According to recent State analyses, the current rate paid by Medi-Cal to Nursing Facility Level B
facilities is at least $70,000 annually. 13
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 15 of 40 Page ID #:740

1 do not prohibit Defendants from using an aggregate cost-cap, setting the Waiver

2 cost-caps at or just below the rate paid to equivalent level of care facilities, or even

3 exceeding the amount paid to those facilities so long as in the aggregate, the State’s

4 overall Medi-Cal spending remains cost-neutral.

5

48. CMS permits Defendants the option of authorizing NF/AH Waiver

6 services to individual participants in excess of their individual cost limitation, but

7 Defendants have not done so. NF/AH Waiver at 29. Defendants have declined to

8 develop an exception process as a safeguard to enable participants to remain on the

9 Waiver, but rather, have indicated to CMS that if a Waiver participant’s service

10 costs exceed the cost-cap set by Defendants, they will instead: 1) refer the

11 individual to another Waiver; 2) assist the participant to identify lower cost services

12 within the cost-cap; or 3) refer the individual for institutional placement. Id.

13 In-Home Supportive Services

14

49. The In-Home Supportive Services (“IHSS”) program is the State’s

15 personal attendant care program pursuant to California Welfare and Institutions

16 Code sections 12300 et seq. (2004), 4132.95 (2004), 14132.951 (2009), and

17 14132.952 (2009). The IHSS program pays for certain services so eligible

18 recipients can remain safely in their homes. IHSS hourly wages are set county-wide

19 throughout the State and vary by county.

20

50. To be eligible for IHSS, an individual must be over 65 years of age, or

21 disabled, or blind. IHSS services include: housecleaning, meal preparation,

22 laundry, grocery shopping, personal care services (such as bowel and bladder care,

23 bathing, grooming and paramedical services), accompaniment to medical

24 appointments, and protective supervision for the mentally impaired. Recipients may

25 choose their IHSS workers, who must meet minimal requirements for approval, such

26 as a background check, but who are not required to be licensed or skilled medical

27 practitioners. The cost of IHSS services is factored into an individual’s NF/AH

28

14
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 16 of 40 Page ID #:741

1 Waiver budget, thereby reducing the amount of Waiver services that can be

2 provided.

3

B. ANTI-DISCRIMINATION LAWS

4

51. Qualifying individuals with disabilities are protected from disability

5 discrimination, including segregation in institutions, by the ADA and Section 504.

6

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

7 disabilities continually encounter various forms of discrimination,

8 including…segregation…” 42 U.S.C. § 12101(a)(5) (2008). Title II of the ADA

9 provides that “no qualified individual with a disability shall, by reason of disability,

10 be excluded from participation in or be denied the benefits of services, programs, or

11 activities of a public entity or be subjected to discrimination by such entity.”

12 42 U.S.C. § 12132 (1990).

13

53. Regulations implementing Title II of the ADA provide: “[a] public

14 entity shall administer services, programs, and activities in the most integrated

15 setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R.

16 § 35.130(d) (2010); see also Section 504, 29 U.S.C. §§ 794-794a (2014); 28 C.F.R.

17 § 41.51(d) (1982). Further, “[t]he most integrated setting appropriate to the needs of

18 a qualified individual with a disability means a setting that enables individuals with

19 disabilities to interact with non-disabled persons to the fullest extent possible.”

20 28 C.F.R. pt. 35, App. A, (2010).

21

54. The United States Supreme Court in Olmstead v. L.C. ex rel. Zimring,

22 527 U.S. 581 (1999) held that the unnecessary institutionalization of individuals

23 with disabilities is a form of discrimination under Title II of the ADA. In doing so,

24 the Court interpreted the ADA’s “integration mandate” as requiring persons with

25 disabilities to be served in the community when: (1) the state determines that

26 community-based treatment is appropriate; (2) the individual does not oppose

27 community placement; and (3) community placement can be reasonably

28 accommodated. Olmstead, 527 U.S. at 607.

15
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 17 of 40 Page ID #:742

1

55. Regulations implementing Title II of the ADA and Section 504 also

2 provide: “A public entity may not, directly or through contractual or other

3 arrangements, utilize criteria or other methods of administration: (i) that have the

4 effect of subjecting qualified individuals with disabilities to discrimination on the

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

6 substantially impairing accomplishment of the objectives of the entity’s program

7 with respect to individuals with disabilities…” 28 C.F.R. § 35.130(b)(3) (2010);

8 28 C.F.R. § 41.51(b)(3)(I) (1982); 45 C.F.R. § 84.4(b)(4) (2005).

9

56. ADA regulations further provide: “[a] public entity shall not impose or

10 apply eligibility criteria that screen out or tend to screen out an individual with a

11 disability or any class of individuals with disabilities from fully and equally

12 enjoying any service, program, or activity, unless such criteria can be shown to be

13 necessary for the provision of the service, program, or activity being offered.”

14 28 C.F.R. § 35.130(b)(8) (2010); see also parallel Section 504 regulations, 45 C.F.R.

15 § 84.4(b)(1)(iv) (2005).

16

57. As set forth in federal regulations: “[a] public entity shall make

17 reasonable modifications in policies, practices, or procedures when the

18 modifications are necessary to avoid discrimination on the basis of disability, unless

19 the public entity can demonstrate that making the modifications would

20 fundamentally alter the nature of the service, program, or activity.” 28 C.F.R.

21 § 35.130(b)(7) (2010).

22

58. Similar to the ADA, California’s anti-discrimination statute prohibits

23 discriminatory actions by the state and state-funded agencies or departments, and

24 provides civil enforcement rights for violations. Cal. Gov’t. Code §§ 11135-11139

25 (2011).

26 ///

27 ///

28 ///

16
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 18 of 40 Page ID #:743

1 VI. FACTS RELATED TO INDIVIDUAL PLAINTIFFS

2 JERRY THOMAS

3

59. Jerry Thomas was diagnosed with Progressive Supranuclear Palsy in

4 2007 at 66 years of age. Progressive Supranuclear Palsy is a degenerative brain

5 disorder that involves a loss of muscle control impacting gait and balance, eye

6 movement, and thought processes.

7

60. Mr. Thomas’ in-home nursing services have been funded entirely by

8 Medi-Cal.

9

61. Mr. Thomas lives at home with wife of over thirty years, Beverly

10 Thomas. Mr. Thomas’s wife is his primary care giver and his Guardian ad Litem.

11

62. Before Mr. Thomas became ill, he worked as a road manager for his

12 brother, singer B.J. Thomas. When he was not spending time with his wife or

13 working, most weekends Mr. Thomas was hunting with his dogs and family

14 members.

15

63. Mr. and Mrs. Thomas desire that he continue living at home with

16 appropriate nursing services.

17

64. Mr. Thomas is medically fragile and technology dependent. Mr.

18 Thomas requires oxygen 24 hours a day and is connected to a ventilator at least 18

19 hours a day, and more when needed. He receives nutrition, hydration and

20 medication through his G-tube. Mr. Thomas is non-ambulatory and cannot bear

21 weight. He uses a wheelchair and requires assistance with all activities of daily

22 living (“ADLs”).

23

65. Mr. Thomas can no longer speak and is only able to communicate by

24 blinking his eyes. Individuals need training to understand his body language for

25 signs and symptoms of changes in his condition, need, and medical emergencies.

26

66. At age 66, when Mr. Thomas could no longer breathe on his own due

27 to muscle weakness, he had a tracheotomy.

28

17
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 19 of 40 Page ID #:744

1

67. In order to control his symptoms and severe pain, he takes over 40

2 medications, including several narcotics and seven medications that are provided

3 pro re nata (“PRN” as needed).

4

68. In addition to Progressive Supranuclear Palsy, Mr. Thomas has been

5 diagnosed with Post-Polio Syndrome, among other conditions.

6

69. Mr. Thomas lived in a nursing facility for 14 years, until his wife was

7 able to bring him home with services under the NF/AH Waiver. Since moving

8 home on April 1, 2013, Mr. Thomas has been in the hospital or hospitalized several

9 times including most recently in January 2015, as well as seen by his doctors on

10 numerous occasions. Mr. Thomas is regularly seen by his pulmonologist and

11 primary care physician, as well as a neurologist.

12

70. Since Mr. Thomas moved home, his condition has worsened due to the

13 natural progression of his diseases. He now requires more time connected to the

14 ventilator and takes additional medications to assist with his digestive and

15 tracheotomy suctioning needs. In July 2014, Dr. Kayaleh, Mr. Thomas’s treating

16 physician, ordered for him to be provided with 24 hour nursing care.

17

71. Mrs. Thomas is not a licensed vocational nurse and is not capable of

18 providing the additional nursing care that Mr. Thomas requires.

19 Mr. Thomas’ Nursing Care Needs

20

72. As set forth in his Plan of Treatment approved by his physician, Mr.

21 Thomas has frequent, ongoing, and unpredictable skilled care needs that must be

22 addressed by a licensed nurse. These include, e.g.,: monitoring Mr. Thomas’

23 oxygen saturation levels and providing skilled interventions when his oxygen levels

24 drop below 92%, including breathing with ambu-bag, CPR, and calling 911;

25 determining when Mr. Thomas must be placed on the ventilator during sprinting

26 hours; monitoring and administering his medications including over 40 daily

27 medications and seven medications to be taken PRN as needed for proper dosage,

28 effectiveness, interactions, and side effects; monitoring the amount, sound, and color

18
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 20 of 40 Page ID #:745

1 of Mr. Thomas’ secretions for signs of infection; monitoring the sound of Mr.

2 Thomas’ lungs to assess for a respiratory infection or blockage; monitoring and

3 performing deep tracheal suctioning; monitoring the color, consistency, odor, and

4 frequency of Mr. Thomas’ urine and bowels for signs and symptoms of infections;

5 administering and checking all equipment to ensure proper functioning and replace

6 equipment or intervene as needed; monitoring feeding tolerance and knowing when

7 Mr. Thomas’ G-tube feeding should be stopped when he presents signs of

8 abdominal pain and discomfort; monitoring, caring for, and replacing his trach

9 stoma when necessary; taking and interpreting vital signs and knowing when they

10 indicate a possible infection or when CPR is required; monitoring Mr. Thomas’

11 entire system for signs of infection, change, or emergency; assessing and monitoring

12 Mr. Thomas’ skin for signs of infection, breakdown, or ulcers; and identifying and

13 responding to emergencies.

14 In-Home Nursing Authorization

15

73. Before moving home from Chapman Subacute facility on April 1,

16 2013, Mr. Thomas was approved to receive 450 LVN hours under the NF/AH

17 waiver at the Subacute level of care, along with 240.04 hours of IHSS, and 2 hours

18 of RN case management. He and his wife accepted this combination of skilled and

19 unskilled care because Mr. Thomas unquestionably required round-the-clock

20 coverage, and they understood that, due to the Subacute Waiver cost-cap, he would

21 not be able to receive the 24-hour nursing he needed.

22

74. On October 16, 2013, DHCS conducted a home visit to reassess Mr.

23 Thomas’ level of care. Based on the assessment, DHCS determined that Mr.

24 Thomas remained eligible for the NF/AH waiver at the Subacute level of care.

25 However, DHCS determined that the expenditures for the services he was receiving

26 exceeded the NF/AH waiver cost-cap at the Subacute level of care, which is

27 $180,219.00.

28

19
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 21 of 40 Page ID #:746

1

75. Even though Mr. Thomas’ needs had increased due to the progression

2 of his disease since his move home in 2013, DHCS issued a Notice of Action

3 (“NOA”) on January 9, 2014 reducing his in-home LVN nursing authorization to

4 430 hours per month. The NOA provided that the decrease in services was solely

5 due to the cost-cap under the NF/AH waiver, not a change or improvement in Mr.

6 Thomas’ condition.

7

76. On February 10, 2014, Mrs. Thomas, on behalf of her husband, timely

8 appealed DHCS’ 20-hour per month nursing reduction by mail and requested aid-

9 paid-pending. At Plaintiffs' request, DHCS reassessed Mr. Thomas in August 2014

10 but refused to authorize increased nursing hours for him.

11

77. On September 23, 2014, a Medi-Cal fair hearing was held, where Mr.

12 Thomas presented his medical need for 24 hour nursing care, consistent with his

13 doctor’s July 2014 orders. On February 4, 2015, the Administrative Law Judge

14 ordered DHCS to reassess Mr. Thomas’ level of care in order to determine whether

15 his health condition qualified him for the Acute Hospital level of care. DHCS has

16 not yet performed a reassessment of Mr. Thomas and thus Mr. Thomas has not

17 experienced a reduction or increase in his nursing care.

18

78. Because DHCS has the ability to “alternate”, or overturn, the decision,

19 or reassess him at a lower level of care at any time, even a favorable decision does

20 not provide Mr. Thomas with permanent or adequate relief.

21 SEAN BENISON

22

79. Mr. Benison was diagnosed with progressive hereditary Becker

23 Muscular Dystrophy when he was nine years old. Mr. Benison started using a

24 manual wheelchair when he was 13 years old and a power wheel chair at age 21.

25 Mr. Benison is quadriplegic. In addition to Muscular Dystrophy, Mr. Benison has

26 chronic respiratory failure, chronic pain disorder, anxiety disorder, DVT

27 (thromboembolism) prophylaxis and reflux esophagitis. Mr. Benison takes 19

28 different medications.

20
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 22 of 40 Page ID #:747

1

80. Mr. Benison is working towards a Ph.D. in Geography at the University

2 of California, Santa Barbara (“UCSB”). He has a B.A. from California State

3 University Northridge. He has a Master’s degree in Geography from UCSB.

4

81. Mr. Benison lives in an apartment in Ventura, California with a live-in

5 IHSS personal care worker. Mr. Benison’s father, Edward Benison, does not

6 provide any daily care but is involved in planning for and providing his care.

7

82. Mr. Benison and his family desire that he continue living at home with

8 appropriate nursing services.

9

83. Mr. Benison’s nursing care has been funded entirely by Medi-Cal.

10

84. While a student at UCSB, Mr. Benison was living in campus housing

11 and had an IHSS care worker assisting with his needs. Mr. Benison also had close

12 friends who helped with his care needs, which enabled Mr. Benison to enroll in and

13 pursue graduate studies.

14

85. In November 2011, while a student at UCSB, Mr. Benison’s health

15 took a turn for the worse. Mr. Benison had a severe attack of pneumonia and was

16 hospitalized at the Goleta Valley Cottage Hospital in Santa Barbara. He remained in

17 the Subacute unit of the acute care hospital for two years before he moved out to his

18 current apartment. While in the hospital, Mr. Benison could no longer breathe on

19 his own. Mr. Benison had to undergo a tracheostomy due to the pneumonia and

20 neuromuscular and lung weakness caused by the Muscular Dystrophy. Mr. Benison

21 is now dependent on a ventilator 24 hours a day.

22

86. Mr. Benison is medically fragile and technology dependent. Until a

23 few months ago, he had a G-tube for feeding and medication. Mr. Benison cannot

24 walk, cannot move himself or even turn over in bed. Mr. Benison is non-

25 ambulatory and cannot bear weight. He uses a wheelchair for mobility. He cannot

26 feed himself and has limited use of his hands. He requires assistance with all

27 activities of daily living.

28

21
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 23 of 40 Page ID #:748

1

87. Mr. Benison has been on the NF/AH Waiver since October 2013 when

2 he moved out of the Subacute facility and into his own apartment in the community.

3 At that time, DHCS authorized 416 hours per month of Medi-Cal funded one-to-one

4 in-home, private duty nursing care through the NF/AH Waiver, based on its

5 determination that Mr. Benison met the Subacute level of care. In order to remain

6 within the cost-cap limitation at the Subacute level of care, he is authorized for 16

7 hours nursing coverage daily from Monday through Friday, and 8 hours of nursing

8 coverage each on Saturdays and Sundays. Mr. Benison requires 24-hour care, and

9 because he lives alone, Mr. Benison supplements his nursing care with 283 hours of

10 unlicensed IHSS personal care aide hours per month. However, on weekends he

11 does not have any nursing coverage for 16 hours each day, which leaves him at risk.

12 Hence, a minimum of 8 hours more of private duty nursing each on Saturday and

13 Sunday is necessary to keep Mr. Benison safely in his home.

14 Mr. Benison’s Nursing Care Needs

15

88. As set forth in his Plan of Treatment approved by his physician, Mr.

16 Benison has frequent, ongoing, and unpredictable skilled care needs that must be

17 addressed by a licensed nurse. These include: monitoring Mr. Benison’s vital signs

18 to ensure they remain within parameters listed in the physician’s orders, and

19 instructing caregivers in proper vital sign monitoring; monitoring cardiac status and

20 assessing for signs and symptoms of tachycardia (resting heart rate faster than

21 normal); assessing Mr. Benison for signs and symptoms of pain; assessing for signs

22 and symptoms of skin breakdown, rash and perfusion; instructing caregivers in

23 measures to protect skin integrity; assessing for medication compliance,

24 effectiveness and complications and instructing caregivers in medication dosages,

25 schedules, effects and side effects, and any food and drug interactions; assessing

26 Mr. Benison’s level of consciousness, motor and sensory reflexes, and for

27 progression of his muscular dystrophy; ensuring adequate respiratory function

28 through trach care including mobilization of lung secretions; monitoring and

22
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 24 of 40 Page ID #:749

1 providing ventilator support and responding to signs and symptoms of respiratory

2 distress; checking ventilator settings as per the physician orders; assessing Mr.

3 Benison’s lung fields for clear, crackles, wheezing or the absence of these in his

4 breathing patterns; monitoring Mr. Benison’s trach stoma for signs and symptoms of

5 infection; monitoring Mr. Benison’s abdomen for signs and symptoms of abdomen

6 distention and constipation; monitoring Mr. Benison for signs and symptoms of

7 urinary tract infections; and reporting significant findings and changes in Mr.

8 Benison’s condition as appropriate.

9 In-Home Nursing Authorization; Case Management and Habilitation Services

10

89. Currently, the cost to the Medi-Cal program for Mr. Benison’s home

11 care, including 416 hours per month of private duty nursing, 283 hours of

12 unlicensed IHSS aides and his medical equipment and supplies, was approximately

13 $180,219.00 per year. This is his maximum budget for NF/AH Waiver services

14 because of the cost-cap imposed by DHCS.

15

90. Since January 2014, Mr. Benison’s physician has ordered one-to-one

16 private duty nursing care for him so that he can receive the 24-hour care that he

17 needs to remain safely at home. Mr. Benison requested 24-hour nursing from

18 Defendants in February 2014. Defendants deferred his request for 24-hour nursing

19 and have not provided him with a written notice of action as to their decision.

20 However, because Mr. Benison lives on his own, he relies on an unlicensed live-in

21 IHSS aide as a backup care provider. In addition to the NF/AH Waiver cost-cap

22 which would prevent Mr. Benison from receiving authorization for 24-hour nursing,

23 DHCS will also not authorize direct care services, or any combination of direct care

24 services, exceeding 24 hours of care per day under the NF/AH Waiver. NF/AH

25 Waiver at 196. Therefore, Plaintiff Benison needs 24 hours of nursing care per day,

26 but he also cannot give up his live-in backup caregiver. Thus, given the limitations

27 of the existing NF/AH Waiver rules, he is requesting additional hours per month of

28 nursing care to ensure that he can receive round-the-clock care.

23
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 25 of 40 Page ID #:750

1

91. Additionally, Mr. Benison needs Case Management Services and

2 Habilitation services to help him organize his nurses and IHSS workers’ schedules,

3 enroll back in graduate studies, enable him to avail of social activities and

4 community services, and gain an overall better quality of life. These services are

5 available through the NF/AH Waiver, but are not available to Mr. Benison because

6 of the Subacute Waiver cost-cap.

7 JUAN PALOMARES

8

92. Juan Palomares had a complete C-4 spinal cord injury in 2005 at age 28

9 due to a motor vehicle accident in which he was a passenger. As a result of the

10 injury, he has quadriplegia and uses a power wheelchair. He is in constant pain,

11 uses a suprapubic catheter, and is prone to autonomic dysreflexia episodes which is

12 imbalanced reflex sympathetic discharge and leads to potentially life-threatening

13 hypertension. Mr. Palomares experiences autonomic dysreflexia episodes

14 approximately 5-6 times per week.

15

93. Mr. Palomares lives at home with his father, Manuel Palomares, who is

16 also his primary caregiver.

17

94. Mr. Palomares’ home care is provided through In-Home Supportive

18 Services and Waiver Personal Care Services. Mr. Palomares’ in-home services are

19 funded entirely by Medi-Cal.

20

95. Mr. Palomares and his father desire that he continue living at home

21 with appropriate in-home services.

22

96. Prior to Mr. Palomares’ accident, Mr. Palomares had recently obtained

23 his certification as a laboratory technician. His injury occurred when he was

24 returning from a family funeral in San Diego to interview for a job as a lab

25 technician.

26

97. Following Mr. Palomares’ accident, he received care at the University

27 of California San Diego hospital, where he was placed on a ventilator and had a

28 tracheostomy. After approximately two months, he was taken off the ventilator, his

24
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 26 of 40 Page ID #:751

1 tracheostomy was closed, and he was transferred to the Rancho Los Amigos

2 Rehabilitation Center in Los Angeles for acute rehabilitation.

3

98. After his discharge from Rancho Los Amigos, Mr. Palomares moved in

4 with his sister for approximately two and a half months, where he received support

5 only from In-Home Supportive Services. He then moved to the Palomares

6 Rehabilitation and Nursing Center3 in Pomona.

7

99. At the Pomona nursing facility, Mr. Palomares was admitted into the

8 Subacute unit but was soon discharged to the Nursing Facility unit. During that

9 time, he was experiencing episodes of autonomic dysreflexia 9-10 times per week.

10 While at the Nursing Facility unit, Mr. Palomares also experienced recurring urinary

11 tract infections, requiring intravenous (“IV”) antibiotics. However, due to the high

12 ratio of patients to nurses, the nurses were not able to quickly attend to his needs,

13 and he had no method or alarm to alert them when he was having an emergency. As

14 a result, Mr. Palomares was consistently in fear for his life while at the facility. Mr.

15 Palomares stayed at the nursing facility for approximately one year.

16

100. In 2006, because of the difficulty the Pomona nursing facility had in

17 meeting Mr. Palomares’ intensive care needs, Mr. Palomares’ father moved into an

18 apartment that had room for Juan Palomares. Although Mr. Palomares’ father had

19 been in training to become a licensed contractor, he abandoned this career path in

20 order to care for his son Juan around-the-clock. Plaintiff Palomares was not offered

21 NF/AH Waiver services when he first came home. He applied for and began to

22 receive NF/AH Waiver services in 2007.

23

101. Since moving home in 2006, Mr. Palomares has been hospitalized

24 several times. In 2014, he went to the emergency room approximately 9-10 times

25 when he was experiencing side effects from his pain medications or autonomic

26

27
28 3 Although the nursing facility’s name was the same as Mr. Palomares’ last name, there is no
relationship. The nursing facility is now called the Inland Valley Care Rehabilitation Center. 25
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 27 of 40 Page ID #:752

1 dysreflexia episodes. Mr. Palomares is regularly seen by a primary care physician,

2 urologist, a podiatrist and a pulmonologist.

3 Mr. Palomares’ In-Home Care Needs

4

102. As a result of his C-4 spinal cord injury, Mr. Palomares is quadriplegic,

5 incontinent of bowel and bladder, unable to feed himself, and dependent for all of

6 his Activities of Daily Living. He uses a power wheelchair for ambulation, which

7 he operates by his chin and head and which has a recline feature that he uses every

8 hour. He requires assistance to administer his medications. He also requires

9 frequent repositioning due to his physical limitations, in order to assist with

10 circulation and to prevent skin ulcers. Because of his health conditions and severe

11 pain, Mr. Palomares takes numerous medications, including narcotics administered

12 as needed due to his constant pain in his neck and shoulder.

13

103. The spinal cord injury has resulted in impairment of Mr. Palomares’

14 sympathetic nervous system (autonomic dysreflexia), which has caused problems

15 modulating body temperature and therefore hypothermia and hyperthermia episodes.

16

104. Mr. Palomares currently experiences about five to six autonomic

17 dysreflexia episodes a week. A majority of the episodes happen at night or in the

18 early morning hours. Such episodes may be triggered by, e.g., a need for

19 repositioning, excessive heat or cold, having something tight on his body (e.g., shoe

20 laces, a shirt), the position of his catheter tube, urinary or bowel obstruction, and

21 inflammation of the stomach. He is at constant risk of having an autonomic

22 dysreflexia episode. During an episode, his heart rate and blood pressure elevate to

23 dangerous levels. If not treated immediately, by removing the triggering stimuli

24 and (when necessary) administering anti-hypertensive medication, autonomic

25 dysreflexia can lead to death.

26

105. Mr. Palomares undergoes treatments through an oscillating vest twice a

27 day to keep fluids and mucus from pooling in his lungs including mobilization of

28

26
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 28 of 40 Page ID #:753

1 mucus. This treatment helps to prevent lung infections such as pneumonia and

2 prevent the need for a ventilator.

3

106. Mr. Palomares has a system in place where he can voice activate 911 so

4 he can be brought to an emergency room. He had approximately ten such

5 emergency room visits last year, many because of difficult-to-control autonomic

6 dysreflexia episodes.

7

107. Mr. Palomares sleeps on a special mattress with air chambers that

8 fluctuate to reduce the risk of decubiti ulcers. His father wakes up every two hours

9 at night to reposition him. During the evening when he is in his wheelchair which

10 he operates with his chin and head, he reclines with his legs brought up at least once

11 an hour to prevent pressure sores and autonomic dysreflexia episodes.

12

108. Mr. Palomares needs to be repositioned and cared for more frequently

13 than he is currently, in order to reduce the incidence of autonomic dysreflexia

14 episodes and prevent decubitus ulcers, but that is not possible without an increase in

15 his NF/AH Waiver budget.

16

109. This past year Mr. Palomares was switched from a Foley catheter to a

17 suprapubic catheter (which is inserted directly into his bladder) in order to reduce

18 the incidence of urinary tract infections (UTIs) and the incidence of autonomic

19 dysreflexia episodes related to Foley catheter erosion and UTIs. However, he has

20 had chronic problems with the suprapubic catheter because the tubing clogs,

21 triggering his autonomic dysreflexia episodes. In addition, the suprapubic catheter

22 must be changed monthly, by a trained provider with experience in order to avoid

23 obstructing.

24 In-Home Services Authorization; IHSS and Waiver Personal Care Services

25

110. As of January 1, 2015, the cost to the Medi-Cal program for Mr.

26 Palomares’ home care, including In-Home Supportive Services and Waiver Personal

27 Care Services per month, and his medical equipment and supplies, was

28

27
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 29 of 40 Page ID #:754

1 approximately $48,180 per year. This is his maximum budget for NF/AH Waiver

2 services because of the cost-cap imposed by DHCS.

3

111. Mr. Palomares receives daytime care from a paid attendant six days per

4 week. His father provides all of his nighttime care, seven nights per week, and all

5 day on Sundays.

6

112. Between 2007 and present, Mr. Palomares’ medically necessary

7 NF/AH Waiver in-home care services have been reduced at least twice, including

8 once in 2013. This reduction was not because Mr. Palomares’ care needs decreased.

9 The Nursing Facility-B level of care cost-cap has remained at $48,180.00, but the

10 hourly rate for attendant care services in his county has increased twice. Therefore,

11 to maintain cost neutrality, DHCS reduced the number of in-home care service

12 hours authorized under the Waiver. Mr. Palomares no longer receives any nursing

13 services because of the last reduction in his Waiver budget, which forced him to

14 accept only unlicensed attendant care in order to have as many hours of coverage

15 each day that his Waiver budget would allow.

16

113. To address one of the reductions in NF/AH Waiver services, Mr.

17 Palomares appealed DHCS’ reduction of his Waiver Personal Care Services from

18 207 hours to 143 hours, which was effective March 22, 2013. The final

19 administrative decision issued by DHCS concluded that DHCS correctly determined

20 that Mr. Palomares’ skilled care needs are consistent with the HCBS NF/AH Waiver

21 Nursing Facility-B level of care and that the reduction of hours was proper in order

22 to adhere to the annual Nursing Facility-B cost-cap of $48,180.

23

114. However, Mr. Palomares needs additional in-home care services in

24 order to meet his round-the-clock needs, which include nursing care and nursing

25 case management, and to enable him to hire additional care providers. Mr.

26 Palomares needs a care provider to monitor him throughout the night and reposition

27 him more frequently in order to reduce his recurrent episodes of autonomic

28 dysreflexia. Additional attendant care would also enable him to bathe more

28
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 30 of 40 Page ID #:755

1 frequently, as this is a task that is very taxing to do as frequently as needed, given

2 Mr. Palomares height of 6 feet and weight of 180 pounds.

3

115. With more attendant care hours, his father could have some additional

4 relief, as he is providing paid and unpaid care and has difficulty managing both day

5 and night care with the limited hours of in-home care covered under the Waiver.

6

116. In addition, Plaintiff Palomares requires reinstatement of case

7 management by a Registered Nurse to supervise and assess his care. Mr. Palomares

8 also requires a Licensed Vocational Nurse with experience in urology to change his

9 suprapubic catheter, flush his port, and assess and monitor any changes to his

10 condition, among other things.

11

117. In-home care services, including IHSS, skilled nursing, and Waiver

12 Personal Care Services are available through the NF/AH Waiver, but are not

13 available to Mr. Palomares because of the Nursing Facility-B Waiver cost-cap.

14 DEFENDANTS’ ACTIONS PLACE INDIVIDUALS WITH DISABILITIES

15 LIKE PLAINTIFFS AT RISK OF INSTITUTIONALIZATION AND

16 VIOLATE THE LAW

17

118. Defendants have placed arbitrary cost-caps on home and community-

18 based services provided under the NF/AH Waiver, which are far less than the actual

19 rates for institutional facilities.

20

119. Defendants have great flexibility and discretion in their administration

21 of the NF/AH waiver. They have the authority to make modifications to ensure that

22 Medi-Cal recipients such as individual Plaintiffs receive sufficient and medically

23 necessary NF/AH Waiver services to avoid institutional placement and receive the

24 necessary services as their medical conditions require.

25

120. According to Plaintiffs Thomas, Benison, and Palomares’ medical

26 professionals, home is the safest place for them to maximize their health condition

27 and prolong their lives. Placement in an institution, however, will almost certainly

28 cause health deterioration and possible death within a short period of time.

29
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 31 of 40 Page ID #:756

1

121. Defendants are refusing to provide additional NF/AH Waiver services

2 for individual Plaintiffs solely due to the fact that DHCS has imposed cost-caps on

3 NF/AH Waiver services, which are lower than the equivalent institutional rates, and

4 which are without medical justification, nor are they required by federal law.

5

122. Defendants’ administration and imposition of the NF/AH Waiver cost-

6 caps directly injures organizational Plaintiff IN SPIRIT. As a result of Defendants’

7 illegal administration of the NF/AH waiver, IN SPIRIT’s mission to enable clients

8 to live safely at home is frustrated and its limited resources are diverted from other

9 clients in order to serve NF/AH Waiver recipients whose at-home care needs would

10 be met, but for the NF/AH Waiver cost-caps.

11

123. Without the appropriate level of NF/AH Waiver services to remain in

12 their homes, qualified individuals with disabilities such as Plaintiffs will have no

13 choice but institutional placement, which will separate them from their families and

14 communities and also poses significant risks to their health.

15 VII. LEGAL CLAIMS

16

FIRST CLAIM FOR RELIEF

17

(Defendant Director Jennifer Kent)

18

Americans with Disabilities Act, 42 U.S.C. § 12131 et seq.

19

124. Plaintiffs reallege and incorporate herein by reference each and every

20 allegation and paragraph set forth previously.

21

125. Individual Plaintiffs are “qualified individuals with a disability” within

22 the meaning of the ADA in that they have physical and/or mental impairments that

23 substantially limit one or more major life activities, including their ability to live

24 independently without support.

25

126. Individual Plaintiffs meet the essential eligibility requirements for

26 Medi-Cal services, including services necessary to maintain them in their homes in

27 the community.

28

30
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 32 of 40 Page ID #:757

1

127. Organizational Plaintiff IN SPIRIT represents the interests of

2 individual Plaintiffs in that it provides assistance to individuals with disabilities to

3 enable them to live in their own homes. IN SPIRIT’s mission is thwarted by

4 Defendant’s actions, which hinder its ability to provide assistance and divert its

5 resources from serving clients who would otherwise be served by the organization.

6

128. Defendant Jennifer Kent is the Director of Defendant DHCS, which has

7 responsibility for providing Medi-Cal and state-funded home and community-based

8 and institutional services, and is therefore a government entity subject to Title II of

9 the ADA. 42 USC §§ 12131(1)(A) and (B) (1990).

10

129. Defendant is obligated under the ADA to administer its programs in a

11 manner that enables qualified individuals with disabilities to live in the most

12 integrated setting appropriate to their needs. Defendant’s denial and reduction of

13 adequate and medically necessary in-home services, and failure to provide qualified

14 individuals with disabilities such as Plaintiffs with medically necessary NF/AH

15 Waiver services, has denied them the services they need to remain safely in the

16 community, thereby placing them at risk of institutionalization in violation of the

17 ADA’s integration mandate.

18

130. Defendant has discriminated against qualified individuals with

19 disabilities such as Plaintiffs in ways that include arbitrarily setting cost-caps for the

20 NF/AH Waiver far below the actual rate paid for institutional services in equivalent

21 facilities, thus denying them funds for home and community-based services that

22 would otherwise be available for institutional services.

23

131. Defendant has discriminated against qualified individuals with

24 disabilities such as Plaintiffs by failing to provide reasonable modifications to

25 programs and services in ways that include: failing to increase or eliminate the

26 individual NF/AH Waiver cost-caps within federal cost neutrality limitations to

27 enable them to receive adequate and medically necessary NF/AH Waiver services;

28 and failing to create and implement an exception process for the NF/AH Waiver

31
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 33 of 40 Page ID #:758

1 cost-caps by which they could receive NF/AH Waiver services at a level adequate to

2 meet their needs.

3

132. By denying Plaintiffs and other qualified individuals with disabilities

4 adequate and necessary NF/AH Waiver services commensurate with their actual

5 need, as opposed to arbitrary service limitations, Defendant has imposed eligibility

6 requirements which unlawfully screen Plaintiffs out from fully and equally enjoying

7 NF/AH Waiver services, and from receiving adequate care to remain safely at home.

8

133. Defendant has utilized criteria and methods of administration that

9 subject Plaintiffs and other qualified individuals with disabilities to discrimination

10 on the basis of disability, including risk of unnecessary institutionalization, in ways

11 that include: (1) designing and implementing Home and Community-Based

12 Services Waivers which set arbitrarily low cost-caps for NF/AH Waiver services,

13 while paying significantly higher rates for the institutional alternative; and

14 (2) imposing eligibility criteria, cost limitations and other criteria not required by

15 federal limitations, which restrict in-home care in favor of institutional care.

16

134. Defendant’s actions are in violation of Title II of the ADA.

17

135. Pursuant to 42 U.S.C. § 12133 (1990), Plaintiffs are entitled to

18 declaratory and injunctive relief, as well as reasonable attorneys’ fees and costs

19 incurred in bringing this action.

20

SECOND CLAIM FOR RELIEF

21

(Defendant DHCS)

22

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

23

136. Plaintiffs reallege and incorporate herein by reference each and every

24 allegation and paragraph set forth previously.

25

137. Individual Plaintiffs are “qualified individuals with a disability” under

26 Section 504 of the Rehabilitation Act of 1973, as amended – 29 U.S.C. § 794 and

27 implementing regulations – in that they have physical and/or mental impairments

28

32
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 34 of 40 Page ID #:759

1 that substantially limit one or more major life activities, including their ability to

2 live independently without support.

3

138. Individual Plaintiffs meet the essential eligibility requirements for

4 Medi-Cal services, including services necessary to maintain them in their homes in

5 the community.

6

139. Organizational Plaintiff IN SPIRIT represents the interests of

7 individual Plaintiffs in that it provides assistance to individuals with disabilities to

8 enable them to live in their own homes. IN SPIRIT’s mission is thwarted by

9 Defendant’s actions, which hinder its ability to provide assistance and divert its

10 resources from serving clients who would otherwise be served by the organization.

11

140. Defendant DHCS is a recipient of federal monies that provides Medi-

12 Cal home and community-based and institutional services and other Medi-Cal

13 services and is therefore a government entity subject to Section 504. 29 U.S.C.

14 § 794(b) (2014).

15

141. Defendant’s denial and reduction of adequate and necessary in-home

16 nursing and refusal to provide NF/AH Waiver services has barred individual

17 Plaintiffs from receiving the services they need to continue to live in the community,

18 thereby placing them at imminent risk of institutionalization in violation of Section

19 504’s integration mandate.

20

142. Defendant has discriminated against Plaintiffs in ways that include

21 arbitrarily setting cost-caps for the NF/AH Waiver far below the actual rate paid for

22 institutional services in equivalent nursing facilities, thus denying qualified

23 individuals with disabilities such as Plaintiffs funds for home and community-based

24 services that would otherwise be available for institutional services.

25

143. By denying qualified individuals with disabilities such as Plaintiffs

26 adequate and necessary NF/AH Waiver services commensurate with their actual

27 need, as opposed to arbitrary service limitations, Defendant has imposed eligibility

28

33
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 35 of 40 Page ID #:760

1 requirements which unlawfully screen them out from fully and equally enjoying

2 NF/AH Waiver services, and from receiving adequate care to remain safely at home.

3

144. Defendant has utilized criteria and methods of administration that

4 subject qualified individuals with disabilities such as Plaintiffs to discrimination on

5 the basis of disability, including risk of unnecessary institutionalization, by,

6 including but not limited to the following: (1) designing and implementing Home

7 and Community-Based Services Waivers which set arbitrarily low cost-caps for

8 NF/AH Waiver services, while paying significantly higher rates for the institutional

9 alternative; and (2) imposing eligibility criteria, cost limitations and other criteria

10 not required by federal limitations, which restrict in-home care in favor of

11 institutional care.

12

145. Defendant’s actions violate Section 504.

13

THIRD CLAIM FOR RELIEF

14

(Defendants DHCS and Director Kent)

15

Violation of Government Code Sections 11135 and 11139

16

146. Plaintiffs reallege and incorporate herein by reference each and every

17 allegation and paragraph set forth previously.

18

147. Individual Plaintiffs are persons with disabilities within the meaning of

19 California Government Code section 11135(c) et seq. (2011) and its implementing

20 regulations.

21

148. Individual Plaintiffs meet the essential eligibility requirements for

22 Medi-Cal services, including services necessary to maintain them in their homes in

23 the community.

24

149. Organizational Plaintiff IN SPIRIT represents the interests of

25 individual Plaintiffs in that it provides assistance to individuals with disabilities to

26 enable them to live in their own homes. IN SPIRIT’s mission is thwarted by

27 Defendants’ actions, which hinder its ability to provide assistance and divert its

28 resources from serving clients who would otherwise be served by the organization.

34
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 36 of 40 Page ID #:761

1

150. Defendants DHCS and Director Kent conduct, operate or administer

2 the state Medicaid program, entitled Medi-Cal, which is directly funded, in part, by

3 state financial assistance within the meaning of California Government Code section

4 11135(a) and implementing regulations.

5

151. Defendants are obligated to administer their programs in a manner that

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

7 appropriate to their needs. Defendants’ denial and reduction of adequate and

8 medically necessary in-home nursing, and failure to provide qualified individuals

9 with disabilities such as Plaintiffs with medically necessary NF/AH Waiver

10 services, has denied them the services they need to remain safely in the community,

11 thereby placing them at risk of institutionalization in violation of the integration

12 mandate of California Government Code section 11135.

13

152. By administering its programs in ways that deny qualified individuals

14 with disabilities such as Plaintiffs NF/AH Waiver services commensurate with their

15 actual need, and instead imposing arbitrary cost limitations on the services they may

16 receive, Defendants have discriminated against them , thereby excluding them from

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

18 discrimination in violation of California Government Code section 11135 et seq. and

19 implementing regulations.

20

153. Plaintiffs further allege that violations of their rights under the

21 Americans with Disabilities Act and implementing regulations contained in the First

22 Claim for Relief are incorporated herein and constitute a violation of California

23 Government Code section 11135 et seq. as well, as set forth in section 11135(b).

24 VIII. ALLEGATIONS CONCERNING INJUNCTIVE AND DECLARATORY

25

RELIEF

26

154. Defendants’ actions, as alleged herein, have resulted in and will

27 continue to result in irreparable injury to Plaintiffs and other qualified individuals

28 with disabilities caused by the refusal to cover medically necessary services under

35
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 37 of 40 Page ID #:762

1 the NF/AH waiver, which they need to remain in their homes and avoid unnecessary

2 institutional placement. Plaintiffs have no plain, speedy or adequate remedy at law.

3

155. IN SPIRIT is also subject to irreparable injury as a result of the NF/AH

4 Waiver cost-caps, for it provides financial aid to NF/AH Waiver recipients to

5 supplement at-home care which would otherwise be covered by the NF/AH Waiver,

6 but for imposition of the cost-caps. IN SPIRIT’s mission is thereby impeded, where

7 funds are put toward assisting NF/AH Waiver recipients with home care needs,

8 rather than funding non-Waiver recipients.

9

156. An actual controversy exists between Plaintiffs and Defendants, in that

10 Plaintiffs claim that Defendants have failed to provide services in the most

11 integrated setting appropriate to meet the needs of qualified individuals with

12 disabilities such as Plaintiffs in violation of federal and state law and Defendants

13 deny all such contentions.

14

157. Defendant Kent can either adopt or “alternate” (reject in whole or part)

15 any administrative decision arising out of claims against DHCS. California Manual

16 of Policies and Procedures, Sections 22-061 and 22-062. Therefore, the

17 administrative appeal process offers no remedy or protection to Plaintiffs, as the

18 Defendants in this action are the very entity which will make a determination of

19 what NF/AH Waiver services will be provided to Plaintiffs.

20

158. The needs of qualified individuals with disabilities such as Plaintiffs

21 can be reasonably accommodated by Defendants in a number of ways such as:

22 increasing the individual NF/AH Waiver cost-caps commensurate with institutional

23 costs; replacing individual NF/AH Waiver cost-caps with an aggregate cost-cap;

24 establishing an exception process for requesting additional services and/or

25 preventing reductions in service; and/or modifying any of their Home and

26 Community-Based Services Waivers to permit these individuals to receive the

27 services that they require and that their physicians have ordered.

28

36
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 38 of 40 Page ID #:763

1

159. Defendants have the option to administer the NF/AH Waiver so as not

2 to create a bias towards institutional placement. Instead, Defendants have chosen to

3 administer the NF/AH Waiver in such a way as to discriminate against qualified

4 individuals with disabilities such as Plaintiffs, and to place them at risk of

5 institutional placement, with life threatening consequences.

6 IX. REQUEST FOR RELIEF

7

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

8 remedies on behalf of themselves and all others similarly situated:

9

A. Assume jurisdiction over this action and maintain continuing

10 jurisdiction until Defendants are in full compliance with every order of this Court;

11

B. Declare that Defendants’ imposition of arbitrary NF/AH Waiver cost-

12 caps, which deny qualified individuals with disabilities such as Plaintiffs sufficient

13 NF/AH Waiver services to meet their undisputed needs, and Defendants’ policies,

14 practices, acts and omissions as set forth above violate:

15

i.

The Americans with Disabilities Act (“ADA”), (42 U.S.C.

16

§§ 12101-12213 (2008)) and implementing regulations.

17

ii.

Section 504 of the Rehabilitation Act (“Section 504”),

18

(29 U.S.C. §§ 794-794a (2014)) and implementing regulations;

19

and,

20

iii.

California Government Code section 11135. (Cal. Gov’t. Code

21

§ 11135 (2011)) and implementing regulations.

22

C. Grant a temporary restraining order and preliminary injunction

23 enjoining Defendants, their officers, agents, employees, attorneys, successors, and

24 all persons who are in active concert or participation with them from reducing

25 medically necessary Medi-Cal funded in-home care below Mr. Thomas’ current

26 level of 450 hours per month of licensed vocational nursing care, two hours per

27 month of RN care and 240.04 hours per month of IHSS personal care services until

28 such time as the matter before this Court may be finally decided.

37
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 39 of 40 Page ID #:764

1

D. Grant a permanent injunction enjoining Defendants, their officers,

2 agents, employees, attorneys, successors, and all persons who are in active concert

3 or participation with them from discriminating against qualified individuals with

4 disabilities such as Plaintiffs including placing them at risk of unnecessary

5 institutionalization, by:

6

i. Failing to offer reasonable modifications to their programs and

7

policies to enable them to receive medically necessary in-home

8

nursing as ordered by their physicians;

9

ii. Failing to offer reasonable modifications to their programs and

10

policies to enable them to receive other NF/AH Waiver services

11

like Case Management, Habilitation services, and Waiver

12

Personal Care Services;

13

iii. Imposing eligibility requirements which unlawfully screen them

14

out of the NF/AH Waiver program and prevent them from fully

15

and equally enjoying NF/AH Waiver services, and from

16

receiving adequate care to remain safely at home;

17

iv. Utilizing criteria and methods of administration that subject them

18

to discrimination on the basis of disability, including placing

19

them at risk of unnecessary institutionalization.

20

E. Issue an order requiring Defendants to:

21

i.

Authorize Medi-Cal funded services for Plaintiffs through the

22

Nursing Facility/Acute Hospital Waiver or other appropriate

23

Home and Community-Based Services Waivers, subject to

24

federal cost neutrality requirements, to enable them to receive

25

medically necessary services commensurate with their needs;

26

ii. Amend their policies and procedures consistent with the

27

injunction above, and to require that Nursing Facility/Acute

28

Hospital Waiver participants be provided with medically

38
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 70 Filed 07/07/15 Page 40 of 40 Page ID #:765

1

necessary Medi-Cal in-home services, commensurate with their

2

assessed needs, and as identified by their treating physicians,

3

consistent with federal cost neutrality requirements.

4

F. Retain jurisdiction over the Defendants until such time as the Court is

5 satisfied that Defendants’ unlawful policies, practices, and acts complained of herein

6 cannot recur.

7

G. Award Plaintiffs the costs of this action and reasonable attorneys’ fees

8 pursuant to 20 U.S.C. § 794a (2014); 42 U.S.C. §§ 12133 (1990), 12205 (1990);

9 California Code of Civil Procedure section 1021.5 (1993); and as otherwise may be

10 allowed by law.

11

H. Grant such other and further relief as the Court deems to be just and

12 equitable.

13 14 Respectfully submitted:

DISABILITY RIGHTS CALIFORNIA

15 16 Date: July 7, 2015 17 18

/s/ Elissa Gershon Attorneys for Plaintiffs

19

20

21

22

23

24

25

26

27

28

39
Thomas v. Kent; No. 2:14-cv-08013 FMO (AGRx) Second Amended Complaint for Injunctive and Declaratory Relief

 </s> Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 1 of 35 Page ID #:249

1

Elissa Gershon, State Bar No. 169741 Elissa.Gershon@disabilityrightsca.org

2 Betsy Havens, State Bar No. 296842 Betsy.Havens@disabilityrightsca.org

3 Monisha A. Coelho, State Bar No. 219233

Monisha.Coelho@disabilityrightsca.org 4 Marilyn Holle, State Bar No. 61530

5

Marilyn.Holle@disabilityrightsca.org DISABILITY RIGHTS CALIFORNIA

6 350 South Bixel Street, Suite 290

Los Angeles, California 90017 7 Telephone: (213) 213-8000

8 Fax: (213) 213-8001

9 Attorneys for Plaintiffs JERRY THOMAS, ARTHUR CONGDON, SEAN BENISON, and IN SPIRIT
10

11

UNITED STATES DISTRICT COURT

12

CENTRAL DISTRICT OF CALIFORNIA

13

14

15 JERRY THOMAS, by and through his ) CASE NO. 14-CV-08013-FMO(AGRx)

16

guardian ad litem BEVERLY THOMAS, ARTHUR CONGDON,

) ) FIRST AMENDED COMPLAINT

17 SEAN BENISON, and IN SPIRIT

) FOR INJUNCTIVE AND ) DECLARATORY RELIEF

18

Plaintiffs,

)

v.

)

19

)

20

JENNIFER KENT, Director of the Department of Health Care Services,

) )

21 State of California DEPARTMENT OF )

HEALTH CARE SERVICES,

)

22

)

23

Defendants.

)

24

25

26

27

28

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 2 of 35 Page ID #:250

1 I. INTRODUCTION

2

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

3 Defendants Department of Health Care Services and its Director, Jennifer Kent

4 ("DHCS" or "Defendants") from continuing their illegal practices which result in

5 denial of critically needed Medi-Cal funded in-home services to individuals such as

6 Plaintiffs Jerry Thomas, Arthur Congdon and Sean Benison. Failure to receive these

7 services will result in severe harm and potential institutionalization of these

8 individuals with disabilities. Due to their fragile medical conditions, placement in

9 an institution is likely to result in dire health consequences and even death.

10 Institutional care for Plaintiffs would also cost the State significantly more than it

11 would to keep them safely in their own homes.

12

2. Plaintiffs have severe disabilities and chronic medical conditions:

13 Plaintiff Jerry Thomas is diagnosed with Progressive Supranuclear Palsy and Post-

14 Polio Syndrome. Plaintiffs Arthur Congdon and Sean Benison have advanced

15 hereditary progressive Muscular Dystrophy. Due to their illnesses, Plaintiffs are

16 quadriplegic and cannot breathe or move on their own. They have tracheal tubes

17 connected to ventilators to help them breathe. Plaintiffs Thomas and Congdon

18 receive nutrition and hydration via Gastrostomy feeding tubes.

19

3. All three Plaintiffs live in their own homes, with round-the-clock care

20 provided by a combination of licensed nurses, and unlicensed paid and unpaid

21 attendants. However, pursuant to their doctors’ orders, Plaintiffs Thomas and

22 Congdon need 24 hour nursing care, and Plaintiff Benison needs additional nursing

23 care, to assess and address their complex and unpredictable needs, including

24 monitoring their ventilators and oxygen levels, preparing and administering

25 medications, and clearing fluids from their lungs and tracheotomy tubes.

26

4. While this kind of intensive nursing care is often provided in a hospital

27 or Subacute medical care facility, Plaintiffs have been able to remain in their

28 communities and close to their families because of nursing care available to them in

1
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 3 of 35 Page ID #:251

1 their homes under the Medi-Cal Home and Community-Based Services Nursing

2 Facility/Acute Hospital Waiver (“NF/AH Waiver”), administered by Defendants.

3

5. Plaintiffs have all requested additional licensed nursing care services

4 from Defendants, so that they can continue living safely in their homes and

5 communities. Defendants have denied these requests.

6

6. Plaintiff Benison, who lives alone, also requires Case Management and

7 Habilitation services, which are available under the NF/AH Waiver. However, Mr.

8 Benison is not able to access these needed NF/AH Waiver services that would help

9 him live more independently and successfully in his home and community.

10

7. The sole reason Plaintiffs are not able to get these critically needed

11 services is because Defendants have placed arbitrary cost limitations on services

12 available under the NF/AH Waiver. For individuals like Plaintiffs who have been

13 determined to meet the Subacute level of care, Medi-Cal would pay $271,697 per

14 year for institutional placement in a Subacute facility; however, Defendants have

15 capped the budget for comparable in-home services funded through the NF/AH

16 Waiver at $180,219 per year, which is at least $90,000 below the actual cost of

17 equivalent care in a Subacute facility. The cost of the additional nursing and other

18 NF/AH Waiver services requested by Plaintiffs would still cost less than placement

19 in a Subacute facility.

20

8. The NF/AH Waiver cost-caps at all levels of care are significantly

21 below the rate Medi-Cal pays to institutions at the equivalent level of care.

22

9. Defendants have the discretion and the ability to modify the NF/AH

23 Waiver to enable Plaintiffs to receive the skilled nursing care and other services they

24 need to remain safely at home. But, they have refused to provide these essential

25 services on the grounds that it exceeds their arbitrary cost-cap.

26

10. Defendants’ actions violate the Americans with Disabilities Act of

27 1990 (“ADA”), (42 U.S.C. §§ 12101-12213 (2008)), Section 504 of the

28 Rehabilitation Act of 1973 (“Section 504”), (29 U.S.C. §§ 794-794a (2014)), and

2
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 4 of 35 Page ID #:252

1 California Government Code section 11135 (Cal. Gov’t. Code § 11135 (2011)).

2

11. Under the ADA and Section 504, a public agency such as DHCS has a

3 duty to provide services to people with disabilities in the “most integrated setting

4 appropriate to their needs” and to prevent unnecessary institutionalization. The

5 most integrated setting for the individual Plaintiffs is to continue living in their

6 homes in the community, with adequate NF/AH Waiver services to meet their

7 significant needs. Placing Plaintiffs at risk of unnecessary institutionalization in

8 order to receive the care they need violates the ADA.

9

12. Under the ADA, Defendants also have an obligation to use methods of

10 administration that do not discriminate against individuals with disabilities such as

11 Plaintiffs. Defendants’ failure to ensure that Plaintiffs are provided with adequate

12 NF/AH Waiver services to continue living safely in their homes, and their decision

13 to set funding levels for services that are biased in favor of institutional care results

14 in discrimination against Plaintiffs in the administration of the Medi-Cal program.

15 II. JURISDICTION

16

13. This is an action for declaratory and injunctive relief for violations of

17 Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 (2008) and

18 Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (2014).

19

14. Jurisdiction is based on 28 U.S.C. §§ 1331 (1980) and 1343 (1979).

20 Plaintiffs’ claims for declaratory and injunctive relief are authorized under 28

21 U.S.C. §§ 2201 (2010) and 2202 (1948). At all times relevant to this action,

22 Defendants have acted under color of state law.

23

15. The Court has Supplemental Jurisdiction over Plaintiffs’ state claim

24 pursuant to 28 U.S.C. § 1367 (1990) and California Government Code section

25 11139 (2001).

26 III. VENUE

27

16. Venue is proper in the Central District of California pursuant to 28

28 U.S.C. § 1391(b) (2011), because the Defendants operate and perform their official

3
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 5 of 35 Page ID #:253

1 duties therein and thus reside therein for purposes of venue, and because a

2 substantial part of the events or omissions giving rise to the claims herein occurred

3 in the Central District of California. Plaintiff Jerry Thomas lives and receives Medi-

4 Cal services in Orange County, which is in the Central District of California.

5 Plaintiff Arthur Congdon lives and receives Medi-Cal services in Los Angeles

6 County, which is in the Central District of California. Plaintiff Sean Benison lives

7 and receives Medi-Cal services in Ventura County, which is in the Central District

8 of California. Defendant DHCS operates the Medi-Cal program, conducts business

9 and provides Medi-Cal services to Plaintiffs in Orange County, Los County and

10 Ventura County, all in the Central District of California.

11 IV. PARTIES

12 Organizational Plaintiff

13

17. Organizational Plaintiff IN SPIRIT is a non-profit organization which

14 provides financial aid to people with disabilities to help them pay for personal care

15 attendants to enable them to live in their own homes. IN SPIRIT’s mission is to

16 empower individuals with disabilities to sustain their health, continue their

17 participation in their families and communities, and avoid nursing facility

18 placement. IN SPIRIT has been directly injured by Defendants’ actions, which

19 impede its ability to carry out its mission to assist people with disabilities in

20 accessing community support services. IN SPIRIT has provided and currently

21 provides financial assistance to individuals on the NF/AH Waiver, in order to

22 supplement their limited at-home care services covered by the Waiver. Because of

23 its commitment to provide financial support for attendant care for needy, high-level

24 quadriplegics, IN SPIRIT will serve clients on the NF/AH Waiver in the future. IN

25 SPIRIT has had to divert scarce resources from other potential clients to NF/AH

26 Waiver recipients to pay for services that, but for the cost-cap, would be funded by

27 the NF/AH waiver.

28 //

4
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 6 of 35 Page ID #:254

1 Individual Plaintiffs

2

18. Each individual Plaintiff is a “qualified person with a disability” within

3 the meaning of all applicable statutes, including 42 U.S.C. §12131(2) (1990) and 29

4 U.S.C. §705(20)(B) (2014). Plaintiffs have been and continue to be Medi-Cal

5 beneficiaries and are on the NF/AH Waiver.

6

19. Plaintiff Jerry Thomas is 73 years old and has Progressive Supranuclear

7 Palsy (“PSP”), a degenerative brain disorder that causes serious and progressive

8 problems with gait and balance, eye movement, cognitive difficulties, and muscle

9 weakness. His disease is progressive and thus symptoms will worsen over time. In

10 addition to PSP, Mr. Thomas has Post-Polio Syndrome, quadriplegia, chronic pain

11 syndrome, dysphagia (difficulty swallowing), chronic respiratory failure, recurrent

12 pneumonia and/or bronchitis, chronic constipation, chronic atelectasis (a complete

13 or partial collapse of the lung), recurrent episodes of urinary tract infections

14 (“UTIs”), and hypothyroidism, among other conditions. After 14 years of

15 institutional placement, Mr. Thomas now resides at home with his wife of over 30

16 years, Beverly Thomas, who brought him home from a Subacute facility in 2013.

17 She serves as his Guardian ad Litem in this litigation.

18

20. Plaintiff Arthur Congdon is 36 years old and has advanced hereditary

19 progressive Duchenne Muscular Dystrophy, chronic respiratory failure, congestive

20 heart failure, cardiomyopathy, is quadriplegic and legally blind. Mr. Congdon also

21 suffers from insomnia, chronic back pain, gastric problems and severe contracture of

22 his joints. He resides at home with his mother, who is his primary caregiver.

23

21. Plaintiff Sean Benison is 43 years old and has advanced hereditary

24 progressive Becker Muscular Dystrophy; is quadriplegic; and has chronic

25 respiratory failure, chronic obstructive pulmonary disease, chronic pain disorder,

26 anxiety disorder, DVT (thromboembolism) prophylaxis and reflux esophagitis. He

27 lives on his own in his apartment, where he moved in October 2013 after living for

28 two years in a Subacute facility.

5
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 7 of 35 Page ID #:255

1

22. All three individual Plaintiffs have a tracheal tube that is connected to

2 a ventilator to help them breathe. Due to Plaintiffs’ mucous secretions and their

3 inability to swallow due to the tracheotomy and loss of muscle function, Plaintiffs

4 must be suctioned as needed, sometimes as frequently as four to five times an hour,

5 when saliva builds up in the mouth, nose, and throat to avoid pooling of mucous or

6 any fluid in the lungs. If fluid does go into the lungs, it could impair oxygen

7 exchange, resulting in lack of oxygen and permanent damage to organs (including

8 brain injury), pneumonia, and infection. Plaintiffs Congdon and Benison use a

9 cuffed tracheotomy which is uncuffed during the day and allows for the possibility

10 of communication/speech, but also allows fluid to go into the lungs if not timely

11 suctioned. Plaintiff Thomas uses a cuffed trach at all times. During the night,

12 Plaintiffs Congdon and Benison also use a cuffed tracheotomy so they are not able

13 to speak – which can be more dangerous since they are not able to communicate if

14 they are in distress. Further, air leaks out of the cuff, and a nurse is required to keep

15 adding air to the cuff and to monitor the ventilator settings to ensure Plaintiffs are

16 properly ventilated: too much air puts pressure on the lungs and too little air can

17 make them unconscious.

18

23. Plaintiffs are completely dependent on medical technologies for

19 survival. Plaintiffs Thomas and Congdon have Gastrostomy tubes (“G-tubes”) for

20 feeding and medication administration. Plaintiffs are dependent on wheelchairs for

21 mobility at all times. Plaintiffs cannot move, turn, feed, dress, bathe or take care of

22 themselves. They need total care for every daily activity.

23

24. Plaintiffs' in-home nursing care is provided by licensed vocational

24 nurses (“LVNs” or “nurses”). LVNs are licensed to provide skilled nursing care in

25 many settings including hospitals. 42 C.F.R. § 409.31 (a) (2005); 22 Cal. Code

26 Regs. §§ 70055(a)(16), §70055(a)(16) & 70217 (a) (2013). These one-on-one

27 skilled nursing services have been ordered by Plaintiffs’ physicians because their

28 care requires the exercise of judgment informed by experience and expertise in

6
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 8 of 35 Page ID #:256

1 addressing the care needs of persons with severe disabilities and chronic illnesses.

2 The services Plaintiffs require cannot safely be provided by untrained or unskilled

3 individuals and are medically necessary.

4 Defendant Department of Health Care Services

5

25. Defendant California Department of Health Care Services (“DHCS”)

6 administers the California Medicaid program, called “Medi-Cal.” DHCS is the

7 single state agency responsible for the administration of the Medi-Cal program.

8

26. Defendant Jennifer Kent is DHCS’ current Director and is sued only in

9 her official capacity. Director Kent is responsible for directing, organizing, and

10 administering the Medi-Cal program, including Medi-Cal Home and Community-

11 Based Services Waivers, in accordance with all applicable laws and regulations. As

12 such, she is responsible for DHCS’ compliance with state and federal laws

13 governing the Medi-Cal program.

14 V. STATUTORY AND REGULATORY FRAMEWORK

15

A. THE MEDICAID PROGRAM

16

27. Medicaid is a joint federal and state medical assistance program for

17 certain groups of low-income people, including children. 42 U.S.C. §§ 1396-1396v

18 (2014). California has elected to participate in the Medicaid program, and so must

19 comply with the requirements of the federal Medicaid Act and its implementing

20 regulations.

21

28. The purpose of Medicaid is to furnish, as far as practicable, “medical

22 assistance on behalf of . . . aged, blind or disabled individuals, whose income and

23 resources are insufficient to meet the costs of necessary medical services” and “to

24 help such families and individuals to attain or retain capability for independence or

25 self-care . . . .” 42 U.S.C. § 1396 (2014).

26

29. Participating States are reimbursed by the federal government for a

27 portion of the cost of providing Medicaid benefits. See 42 U.S.C. § 1396b (2010).

28 The remaining funding for the Medi-Cal program comes from the State and from

7
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 9 of 35 Page ID #:257

1 counties.

2

30. States participating in Medicaid must designate a “single state agency”

3 to administer or supervise the administration of the Medicaid program. 42 U.S.C. §

4 1396a(a)(5) (2014). DHCS is the single state agency so designated in California.

5

31. The California Medi-Cal program provides an array of medical

6 services, treatments, and therapies that are authorized based on individuals’ meeting

7 “medical necessity” criteria. Welf. & Inst. Code §§ 14059 (1969), 14059.5 (1985),

8 14133.3 (2004); 22 Cal. Code Regs. § 51303(a) (2013).

9 Medi-Cal Home and Community-Based Services Waivers

10

32. The Centers for Medicare and Medicaid (“CMS”) is the federal agency

11 that oversees the administration of the Medicaid programs offered by each state.

12 CMS has the authority to waive certain provisions of federal Medicaid law to allow

13 states to provide home and community-based services (“HCBS”) in lieu of

14 institutional care, for targeted groups of individuals who otherwise would require

15 care in a medical facility. 42 U.S.C. § 1396n(c)(1) (2010).

16

33. DHCS has been mandated by the Legislature to “seek all necessary

17 waivers . . . in order to provide in-home and community-based care.” Welf. & Inst.

18 Code §§ 14132(t) (2014), 14137 (1986). DHCS routinely seeks and secures federal

19 approval to renew and amend HCBS Waivers within permissible federal limitations.

20

34. HCBS Waivers in California include the Nursing Facility/Acute

21 Hospital (“NF/AH”) Waiver. The purpose of the NF/AH Waiver is to provide

22 Medi-Cal beneficiaries with long-term medical conditions who meet one of the

23 designated "levels of care" described below, the option of returning to and/or

24 remaining in their homes or home-like community settings in lieu of

25 institutionalization. State of California Dep’t of Health Care Servs., Application for

26 § 1915(c) HCBS Waiver Nursing Facility/Acute Hospital (NF/AH) Waiver,

27 (12/1/2012-12/31/2016)

28 http://www.dhcs.ca.gov/services/ltc/Documents/NFAH%20Transition%20and%20D

8
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 10 of 35 Page ID #:258

1 iversion%20Waiver%2012-1-2012.pdf ("NF/AH Waiver") at 7-8.

2

35. In seeking federal approval for the NF/AH Waiver, DHCS gave

3 assurances to CMS, including that: (a) Necessary safeguards have been taken to

4 protect the health and welfare of participants receiving services under the NF/AH

5 Waiver; and, (b) Plans of Care are responsive to NF/AH Waiver participants’ needs.

6 NF/AH Waiver at 9-10.

7

36. Under the umbrella of the NF/AH HCBS Waiver, DHCS administers

8 several HCBS waivers which each correspond to an institutional level of care. The

9 relevant levels of care are: Nursing Facility Level A or B (“NF-A/B”), Nursing

10 Facility Subacute (“Subacute”), and Acute Hospital. Each of the three HCBS

11 Waivers contained in the NF/AH Waiver offers an array of home and community-

12 based services, discussed below.

13

37. The level of care criteria for the NF/AH Home and Community-Based

14 Services Waivers explicitly describe the type and level (or severity) of functional

15 limitations and/or skilled nursing needs an individual must have to be admitted to an

16 institutional setting. Upon meeting those eligibility criteria, or level of care, an

17 individual may qualify for corresponding NF/AH HCBS Waiver services.

18

38. California offers various services under the NH/AH Waiver, including

19 Private Duty Nursing, Case Management and Habilitation services, that Plaintiffs

20 are seeking. NF/AH Waiver at 59.

21

39. “Private duty nursing” services means individual and continuous care

22 (in contrast to part-time or intermittent care) provided by a licensed nurse or a

23 certified home health aide employed by a home health agency within the scope of

24 state law. Private duty nursing services are provided in a recipient’s home, home-

25 like environment or an approved out-of-home setting. 42 U.S.C. § 1396d(a)(9)

26 (2012); 42 C.F.R. § 440.80 (1987); NF/AH Waiver at 196.

27

40. “Case Management” services are designed to assess the participant and

28 determine the need for medical, psycho-social, social and other services and to assist

9
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 11 of 35 Page ID #:259

1 participants in gaining access to those needed services, regardless of the funding

2 source, to ensure the participant’s health and safety and support of his/her home and

3 community-based program. Case Managers also assist in securing personal care

4 providers, work with the participant and his/her physician in developing goals and

5 identifying a course of action to respond to the assessed needs of the individual, as

6 well as oversee the implementation of the services described in the Plan of

7 Treatment. Case Management responsibilities include assessing, care planning,

8 locating, coordinating, and monitoring services for community-based participants on

9 the waiver. Case Management may be provided by an array of provider types.

10 NF/AH Waiver at 59-72.

11

41. “Habilitation Services” are provided in a participant’s home or an out-

12 of-home non-facility setting and are designed to assist the participant in acquiring,

13 retaining, and improving self-help, socialization, and adaptive skills necessary to

14 reside successfully in the person’s natural environment. Habilitation services

15 include training on: the use of public transportation; personal skills development in

16 conflict resolution; community participation; developing and maintaining

17 interpersonal relationships; personal habits; daily living skills (cooking, cleaning,

18 shopping, money management) and community resource awareness to support

19 independence in the community. It also includes assistance with: selecting and

20 moving into a home; locating and choosing suitable housemates; locating household

21 furnishings; settling disputes with landlords; managing personal financial affairs;

22 recruiting, screening, hiring, training, supervising, and dismissing personal

23 attendants; dealing with and responding appropriately to governmental agencies and

24 personnel; asserting civil and statutory rights through self-advocacy, and building

25 and maintaining interpersonal relationships. NF/AH Waiver at 72-84.

26

42. In order to meet federal cost-neutrality requirements, the NF/AH

27 Waiver contains assurances that, in the aggregate for the entire NF/AH Waiver

28 population, services provided in the community pursuant to the NF/AH Waiver will

10
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 12 of 35 Page ID #:260

1 not exceed the cost of services in the institution designated for comparable care.

2 NF/AH Waiver at 10. Defendants, however, have chosen to use an individual

3 maximum benefit level, rather than an aggregate cost-cap. Id. at 26-27. Thus, the

4 three Waivers within the NF/AH HCBS Waiver correspond to an institutional level

5 of care and have individual “cost-caps” depending on the Medi-Cal rate for their

6 corresponding facility. These cost-caps allow a qualifying individual to choose

7 from a menu of available home and community-based services but only up to the

8 cost-cap for his or her level of care set by DHCS in the applicable HCBS Waiver.

9 NF/AH Waiver at 26-27.

10

43. Defendants have set NF/AH Waiver cost-caps at all levels of care

11 significantly below the annual rate Medi-Cal pays to institutions of the same level of

12 care, as set forth below1:

13 Institutional Level of Care Annual Institutional Rate

14

(Based on 2007 NF/AH

Waiver)

15 Nursing Facility (NF)-A

$34,388

Annual Waiver Cost-Cap (Current in 2012 NF/AH Waiver) $29,548

16 Nursing Facility (NF)-B
17 NF-B Pediatric 18
NF-Distinct Part
19
NF-Subacute, Adult
20
21 NF-Subacute, Pediatric

$56,074 $110,280 $124,342 $271,697 $282,574

$48,180 $101,882 $77,600 $180,219 $240,211

22 Acute Hospital

$437,757

$305,283

23 44. For individuals such as Mr. Thomas, Mr. Congdon and Mr. Benison
24 who meet the institutional criteria and would otherwise be placed in a Subacute
25

26 1 The current NF/AH Waiver contains only the Waiver cost-cap, but not the
27 corresponding institutional rate. NF/AH Waiver at 27-28. The annual institutional
28 rate is contained in the previous version of the NF/AH Waiver and is calculated using the weighted daily average rate for each facility type for 365 days a year.
11
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 13 of 35 Page ID #:261

1 nursing facility, Defendants have arbitrarily set the cost-cap for NF/AH Waiver

2 services at the adult Subacute level of care at $180,219, which is more than $90,000

3 below the rate for a Subacute facility. NF/AH Waiver at 27.

4

45. Defendants will not authorize a level of HCBS waiver funding for

5 home-based services which is comparable to the level of funding Medi-Cal would

6 otherwise pay for institutional care. However, federal cost-neutrality requirements

7 do not prohibit Defendants from using an aggregate cost-cap, setting the Waiver

8 cost-caps at or just below the rate paid to equivalent level of care facilities, or even

9 exceeding the amount paid to those facilities so long as in the aggregate, the State’s

10 overall Medi-Cal spending remains cost-neutral.

11 In-Home Supportive Services

12

46. The In-Home Supportive Services (“IHSS”) program is the State’s

13 personal attendant care program pursuant to Cal. Welf. & Inst. Code §§ 12300 et

14 seq. (2004) and Welf. & Inst. Code §§ 14132.95 (2004), 14132.951 (2009),

15 14132.952 (2009). The IHSS program pays for certain services so eligible

16 recipients can remain safely in their homes. To be eligible, an individual must be

17 over 65 years of age, or disabled, or blind. IHSS services include: housecleaning,

18 meal preparation, laundry, grocery shopping, personal care services (such as bowel

19 and bladder care, bathing, grooming and paramedical services), accompaniment to

20 medical appointments, and protective supervision for the mentally impaired.

21 Recipients may choose their IHSS workers, who must meet minimal requirements

22 for approval, such as a background check, but who are not required to be licensed or

23 skilled medical practitioners.

24

B. ANTI-DISCRIMINATION LAWS

25

47. Qualifying individuals with disabilities are protected from disability

26 discrimination, including segregation in institutions, by the ADA and Section 504.

27

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

28 disabilities continually encounter various forms of discrimination,

12
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 14 of 35 Page ID #:262

1 including…segregation…” 42 U.S.C. § 12101(a) (5) (2008). Title II of the ADA

2 provides that “no qualified individual with a disability shall, by reason of disability,

3 be excluded from participation in or be denied the benefits of services, programs, or

4 activities of a public entity or be subjected to discrimination by such entity.” 42

5 U.S.C. § 12132 (1990).

6

49. Regulations implementing Title II of the ADA provide: “[a] public

7 entity shall administer services, programs, and activities in the most integrated

8 setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R.

9 § 35.130(d) (2010); see also Section 504, 29 U.S.C. §§ 794-794a (2014); 28 C.F.R.

10 § 41.51(d) (1982). Further, “[t]he most integrated setting appropriate to the needs of

11 a qualified individual with a disability means a setting that enables individuals with

12 disabilities to interact with non-disabled persons to the fullest extent possible.” 28

13 C.F.R. pt. 35, App. A, (2010).

14

50. The United States Supreme Court in Olmstead v. L.C. ex rel. Zimring,

15 527 U.S. 581 (1999) held that the unnecessary institutionalization of individuals

16 with disabilities is a form of discrimination under Title II of the ADA. In doing so,

17 the Court interpreted the ADA’s “integration mandate” as requiring persons with

18 disabilities to be served in the community when: (1) the state determines that

19 community-based treatment is appropriate; (2) the individual does not oppose

20 community placement; and (3) community placement can be reasonably

21 accommodated. Olmstead, 527 U.S. at 607.

22

51. Regulations implementing Title II of the ADA and Section 504 also

23 provide: “A public entity may not, directly or through contractual or other

24 arrangements, utilize criteria or other methods of administration: (i) that have the

25 effect of subjecting qualified individuals with disabilities to discrimination on the

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

27 substantially impairing accomplishment of the objectives of the entity’s program

28 with respect to individuals with disabilities…” 28 C.F.R. § 35.130(b)(3) (2010); 28

13
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 15 of 35 Page ID #:263

1 C.F.R. § 41.51(b)(3)(I) (1982); 45 C.F.R. § 84.4(b)(4) (2005).

2

52. ADA regulations further provide: “[a] public entity shall not impose or

3 apply eligibility criteria that screen out or tend to screen out an individual with a

4 disability or any class of individuals with disabilities from fully and equally

5 enjoying any service, program, or activity, unless such criteria can be shown to be

6 necessary for the provision of the service, program, or activity being offered.” 28

7 C.F.R. § 35.130(b)(8) (2010); see also parallel Section 504 regulations, 45 C.F.R.

8 § 84.4(b)(1)(iv) (2005).

9

53. As set forth in federal regulations: “[a] public entity shall make

10 reasonable modifications in policies, practices, or procedures when the

11 modifications are necessary to avoid discrimination on the basis of disability, unless

12 the public entity can demonstrate that making the modifications would

13 fundamentally alter the nature of the service, program, or activity.” 28 C.F.R.

14 § 35.130(b)(7) (2010).

15

54. Similar to the ADA, California’s anti-discrimination statute prohibits

16 discriminatory actions by the state and state-funded agencies or departments, and

17 provides civil enforcement rights for violations. Cal. Gov’t. Code §§ 11135-11139

18 (2011).

19 VI. FACTS RELATED TO INDIVIDUAL PLAINTIFFS

20 JERRY THOMAS

21

55. Jerry Thomas was diagnosed with Progressive Supranuclear Palsy in

22 2007 at 66 years of age. Progressive Supranuclear Palsy is a degenerative brain

23 disorder that involves a loss of muscle control impacting gait and balance, eye

24 movement, and thought processes.

25

56. Mr. Thomas’s in-home nursing services have been funded entirely by

26 Medi-Cal.

27

57. Mr. Thomas lives at home with wife of over thirty years, Beverly

28 Thomas. Mr. Thomas’s wife is his primary care giver and his Guardian ad Litem.

14
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 16 of 35 Page ID #:264

1

58. Before Mr. Thomas became ill, he worked as a road manager for his

2 brother, singer B.J. Thomas. When he was not spending time with his wife or

3 working, most weekends Mr. Thomas was hunting with his dogs and family

4 members.

5

59. Mr. and Mrs. Thomas desire that he continue living at home with

6 appropriate nursing services.

7

60. Mr. Thomas is medically fragile and technology dependent. Mr.

8 Thomas requires oxygen 24 hours a day and is connected to a ventilator at least 18

9 hours a day, and more when needed. He receives nutrition, hydration and

10 medication through his G-tube. Mr. Thomas is non-ambulatory and cannot bear

11 weight. He uses a wheelchair and requires assistance with all activities of daily

12 living (“ADLs”).

13

61. Mr. Thomas can no longer speak and is only able to communicate by

14 blinking his eyes. Individuals need training to understand his body language for

15 signs and symptoms of changes in his condition, need, and medical emergencies.

16

62. At age 66, when Mr. Thomas could no longer breathe on his own due

17 to muscle weakness, he had a tracheotomy.

18

63. In order to control his symptoms and severe pain, he takes over 40

19 medications, including several narcotics and 7 medications that are provided pro re

20 nata (“PRN” as needed).

21

64. In addition to PSP, Mr. Thomas has been diagnosed with Post Polio

22 Syndrome, among other conditions.

23

65. Mr. Thomas lived in a nursing facility for fourteen years, until his wife

24 was able to bring him home with services under the NF/AH Waiver. Since moving

25 home on April 1, 2013, Mr. Thomas has been in the hospital or hospitalized several

26 times including most recently in January 2015, as well as seen by his doctors on

27 numerous occasions. Mr. Thomas is regularly seen by his pulmonologist and

28 primary care physician, as well as a neurologist.

15
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 17 of 35 Page ID #:265

1

66. Since Mr. Thomas moved home, his condition has worsened due to the

2 natural progression of his diseases. He now requires more time connected to the

3 ventilator and takes additional medications to assist with his digestive and

4 tracheotomy suctioning needs. In July 2014, Dr. Kayaleh, Mr. Thomas’s treating

5 physician, ordered for him to be provided with 24 hour nursing care.

6

67. Mrs. Thomas is not a licensed vocational nurse and is not capable of

7 providing the additional nursing care that Mr. Thomas requires.

8 Mr. Thomas’ Nursing Care Needs

9

68. As set forth in his Plan of Treatment approved by his physician, Mr.

10 Thomas has frequent, ongoing, and unpredictable skilled care needs that must be

11 addressed by a licensed nurse. These include, e.g.,: monitoring Mr. Thomas’

12 oxygen saturation levels and providing skilled interventions when his oxygen levels

13 drop below 92%, including breathing with ambu-bag, CPR, and calling 911;

14 determining when Mr. Thomas must be placed on the ventilator during sprinting

15 hours; monitoring and administering his medications including over 40 daily

16 medications and 7 medications to be taken PRN as needed for proper dosage,

17 effectiveness, interactions, and side effects; monitoring the amount, sound, and color

18 of Mr. Thomas’ secretions for signs of infection; monitoring the sound of Mr.

19 Thomas’ lungs to assess for a respiratory infection or blockage; monitoring and

20 performing deep tracheal suctioning; monitoring the color, consistency, odor, and

21 frequency of Mr. Thomas’ urine and bowels for signs and symptoms of infections;

22 administering and checking all equipment to ensure proper functioning and replace

23 equipment or intervene as needed; monitoring feeding tolerance and knowing when

24 Mr. Thomas’ G-tube feeding should be stopped when he presents signs of

25 abdominal pain and discomfort; monitoring, caring for, and replacing his trach

26 stoma when necessary; taking and interpreting vital signs and knowing when they

27 indicate a possible infection or when CPR is required; monitoring Mr. Thomas’

28 entire system for signs of infection, change, or emergency; assessing and monitoring

16
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 18 of 35 Page ID #:266

1 Mr. Thomas’ skin for signs of infection, breakdown, or ulcers; and identifying and

2 responding to emergencies.

3 In-Home Nursing Authorization

4

69. Before moving home from Chapman Subacute facility on April 1,

5 2013, Mr. Thomas was approved to receive 450 LVN hours under the NF/AH

6 waiver at the Subacute level of care, along with 240.04 hours of IHSS, and 2 hours

7 of RN case management. He and his wife accepted this combination of skilled and

8 unskilled care because Mr. Thomas unquestionably required round-the-clock

9 coverage, and they understood that, due to the Subacute Waiver cost-cap, he would

10 not be able to receive the 24-hour nursing he needed.

11

70. On October 16, 2013, DHCS conducted a home visit to reassess Mr.

12 Thomas’ level of care. Based on the assessment, DHCS determined that Mr.

13 Thomas remained eligible for the NF/AH waiver at the Subacute level of care.

14 However, DHCS determined that the expenditures for the services he was receiving

15 exceeded the NF/AH waiver cost-cap at the Subacute level of care, which is

16 $180,219.00.

17

71. Even though Mr. Thomas’ needs had increased due to the progression

18 of his disease since his move home in 2013, DHCS issued a Notice of Action

19 (“NOA”) on January 9, 2014 reducing his in-home LVN nursing authorization to

20 430 hours per month. The NOA provided that the decrease in services was solely

21 due to the cost-cap under the NF/AH waiver, not a change or improvement in Mr.

22 Thomas’ condition.

23

72. On February 10, 2014, Mrs. Thomas, on behalf of her husband, timely

24 appealed DHCS’ 20-hour per month nursing reduction by mail and requested aid-

25 paid-pending. At Plaintiffs' request, DHCS reassessed Mr. Thomas in August 2014

26 but refused to authorize increased nursing hours for him.

27

73. On September 23, 2014, a Medi-Cal fair hearing was held, where Mr.

28 Thomas presented his medical need for 24 hour nursing care, consistent with his

17
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 19 of 35 Page ID #:267

1 doctor’s July 2014 orders. The administrative law judge has not yet issued a ruling;

2 thus Mr. Thomas has not yet experienced a reduction in his nursing care. However,

3 because DHCS has the ability to “alternate”, or overturn, the decision, even a

4 favorable ruling does not offer Mr. Thomas protection from this cut. Moreover, at

5 the hearing, Defendants argued that the hearing issues should be limited to the 20-

6 hour per month reduction, and not whether Mr. Thomas was entitled to receive 24-

7 hour per day nursing care. Thus, even a favorable decision may not provide Mr.

8 Thomas with permanent or adequate relief.

9 ARTHUR CONGDON

10

74. Arthur Congdon is 36 years old. He was diagnosed with Duchenne

11 Muscular Dystrophy as a child. Muscular Dystrophy is a degenerative disease

12 involving advancing muscle weakness, loss of muscle tissue, and atrophy. As a

13 result of Muscular Dystrophy, Mr. Congdon is quadriplegic and uses a wheelchair.

14 Mr. Congdon also has congestive heart failure, cardiomyopathy, chronic respiratory

15 failure and is legally blind. In addition, Mr. Congdon suffers from chronic

16 insomnia, chronic back pain, gastric problems, urinary incontinence and severe

17 contracture of his joints.

18

75. Mr. Congdon lives at home with his mother, Jennifer Knight. Ms.

19 Knight is also legally blind. Ms. Knight is Mr. Congdon’s primary caregiver, and is

20 involved in planning for and providing his care. Mr. Congdon’s father lives in

21 Pennsylvania.

22

76. Mr. Congdon has a Ph.D. in Astrophysics. In October 2008, he began

23 an assignment at the prestigious Jet Propulsion Laboratory (JPL) at the California

24 Institute of Technology in Pasadena, California. He was a participant in NASA’s

25 Postdoctoral Program administered by Oak Ridge Associated Universities.

26 However, due to his advancing Muscular Dystrophy, Mr. Congdon is no longer able

27 to work at JPL. Mr. Congdon now remains exclusively at home and is working on

28 an astrophysics textbook.

18
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 20 of 35 Page ID #:268

1

77. In March 2002, Mr. Congdon was named one of five winners nationally

2 of the Recording for the Blind and Dyslexic academic awards. To recognize his

3 accomplishment, Mr. Congdon was invited to the White House in Washington, DC,

4 where he met with then First Lady Laura Bush.

5

78. Mr. Congdon and his mother desire that he continue living at home

6 with appropriate nursing services.

7

79. Mr. Congdon’s in-home nursing care has been funded entirely by

8 Medi-Cal.

9

80. Mr. Congdon is medically fragile and technology dependent. Eleven

10 years ago, Mr. Congdon could no longer breathe on his own due to muscle

11 weakness, and he had a tracheotomy. Since that time, Mr. Congdon has been

12 dependent on a ventilator 24 hours a day.

13

81. Mr. Congdon receives nutrition, hydration and medication through his

14 G-tube. He is given water three times a day, and medicines four times a day, via his

15 G-tube. His G-tube needs to be cleaned every day and flushed every time he gets

16 hydration.

17

82. Mr. Congdon needs total care for every daily activity. Mr. Congdon is

18 non-ambulatory and cannot bear weight. He uses a wheelchair. He cannot walk,

19 cannot move himself or even turn over in bed. He cannot feed himself and has

20 limited use of his hands.

21

83. Mr. Congdon had spinal fusion surgery in 1993. He was hospitalized at

22 Cedars Sinai for aspiration pneumonia in May 2013.

23 Mr. Congdon’s Nursing Care Needs

24

84. As set forth in his Plan of Treatment approved by his physician, Mr.

25 Congdon has frequent, ongoing, and unpredictable skilled care needs that must be

26 addressed by a licensed nurse. These include: monitoring vital signs for signs or

27 symptoms of a change in condition and ensuring his vital signs remain within

28 parameters listed in the physician’s orders, with more frequent checks if he is

19
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 21 of 35 Page ID #:269

1 running a fever; monitoring Mr. Congdon’s respiratory function through regular

2 interventions of deep and oral suctioning; providing trach care including

3 mobilization of lung secretions; monitoring and providing ventilator support and

4 responding to signs and symptoms of respiratory distress; ensuring adequate

5 nutrition, hydration and medication is provided for Mr. Congdon via his G-tube,

6 through close monitoring; assessing the G-tube site for any problems or infection;

7 monitoring for signs and symptoms of weight change, altered bowel function and

8 dehydration; assessing and changing Mr. Congdon’s tracheotomy and addressing

9 problems or infections; preparing and administering medications as prescribed;

10 monitoring Mr. Congdon’s pain level and re-positioning him and administering

11 analgesics as needed; ensuring Mr. Congdon remains infection free at his trach and

12 G-tube sites and keeping sites clean and dry at all times; ensuring no skin

13 impairment develops by repositioning Mr. Congdon frequently and by providing

14 skin care every shift to ensure no skin breakdown; reporting any change in Mr.

15 Congdon’s condition to the physician, the RN, or others as appropriate.

16 In-Home Nursing Authorization

17

85. Mr. Congdon has been receiving NF/AH Waiver services since October

18 2008. He is authorized for up to 500 hours per month of licensed vocational

19 nursing, and two hours per month of RN case management. This provides him with

20 16 hours nursing coverage daily. He does not receive any IHSS attendant care.

21

86. Mr. Congdon’s mother, Ms. Knight, has been trained in his care needs

22 and provides the remainder of his care each day. She also provides backup care

23 during times when Mr. Congdon’s needs are so intense that two caregivers are

24 required or when the home health agency fails to staff a shift and a nurse is not

25 available.

26

87. However, Ms. Knight is unable to provide additional care for Mr.

27 Congdon. Mr. Congdon’s father lives on the East Coast and is unavailable to

28 provide any caregiver duties. Moreover, since Mr. Congdon is over the age of 18,

20
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 22 of 35 Page ID #:270

1 neither parent has a legal obligation to provide for his care.

2

88. In June 2013, Mr. Congdon’s physician ordered one-to-one nursing

3 care for him for twenty four hours per day. Accordingly, Mr. Congdon asked

4 Defendants for an additional 240 hours per month of private duty nursing to be

5 provided by a licensed vocational nurse. Defendants denied the request and, in lieu

6 of the 240 hours per month, only authorized Mr. Congdon an additional 20 hours per

7 month of nursing care, up to the Subacute Waiver cost-cap. Mr. Congdon did not

8 appeal the denial because he believed that doing so would be futile.

9 SEAN BENISON

10

89. Mr. Benison was diagnosed with progressive hereditary Becker

11 Muscular Dystrophy when he was 9 years old. Mr. Benison started using a manual

12 wheelchair when he was 13 year old and a power wheel chair at age 21. Mr.

13 Benison is quadriplegic. In addition to Muscular Dystrophy, Mr. Benison has

14 chronic respiratory failure, chronic obstructive pulmonary disease, chronic pain

15 disorder, anxiety disorder, DVT (thromboembolism) prophylaxis and reflux

16 esophagitis. Mr. Benison takes 19 different medications.

17

90. Mr. Benison is working towards a Ph.D. in Geography at the University

18 of California, Santa Barbara (“UCSB”). He has a B.A. from California State

19 University Northridge. He has a Master’s degree in Geography from UCSB.

20

91. Mr. Benison lives in an apartment in Ventura, California with a live-in

21 IHSS personal care worker. Mr. Benison’s father, Edward Benison, does not

22 provide any daily care but is involved in planning for and providing his care.

23

92. Mr. Benison and his family desire that he continue living at home with

24 appropriate nursing services.

25

93. Mr. Benison’s nursing care has been funded entirely by Medi-Cal.

26

94. While a student at UCSB, Mr. Benison was living in campus housing

27 and had an IHSS care worker assisting with his needs. Mr. Benison also had close

28 friends who helped with his care needs, which enabled Mr. Benison to enroll in and

21
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 23 of 35 Page ID #:271

1 pursue graduate studies.

2

95. In November 2011, while a student at UCSB, Mr. Benison’s health

3 took a turn for the worse. Mr. Benison had a severe attack of pneumonia and was

4 hospitalized at the Goleta Valley Cottage Hospital in Santa Barbara. He remained in

5 the Subacute unit of the acute care hospital for two years before he moved out to his

6 current apartment. While in the hospital, Mr. Benison could no longer breathe on

7 his own. Mr. Benison had to undergo a tracheostomy due to the pneumonia and

8 neuromuscular and lung weakness caused by the Muscular Dystrophy. Mr. Benison

9 is now dependent on a ventilator 24 hours a day.

10

96. Mr. Benison is medically fragile and technology dependent. Until a

11 few months ago, he had a G-tube for feeding and medication. Mr. Benison cannot

12 walk, cannot move himself or even turn over in bed. Mr. Benison is non-

13 ambulatory and cannot bear weight. He uses a wheelchair for mobility. He cannot

14 feed himself and has limited use of his hands. He requires assistance with all

15 activities of daily living.

16

97. Mr. Benison has been on the NF/AH Waiver since October 2013 when

17 he moved out of the Subacute facility and into his own apartment in the community.

18 At that time, DHCS authorized 416 hours per month of Medi-Cal funded one-to-one

19 in-home, private duty nursing care through the NF/AH Waiver, based on its

20 determination that Mr. Benison met the Subacute level of care. In order to remain

21 within the cost-cap limitation at the Subacute level of care, he is authorized for 16

22 hours nursing coverage daily from Monday through Friday, and 8 hours of nursing

23 coverage each on Saturdays and Sundays. Mr. Benison requires 24-hour care, and

24 because he lives alone, Mr. Benison supplements his nursing care with 260 hours of

25 unlicensed IHSS personal care aide hours per month. However, on weekends he

26 does not have any nursing coverage for 16 hours each day, which leaves him at risk.

27 Hence, a minimum of 8 hours more of private duty nursing each on Saturday and

28 Sunday is necessary to keep Mr. Benison safely in his home.

22
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 24 of 35 Page ID #:272

1 Mr. Benison’s Nursing Care Needs

2

98. As set forth in his Plan of Treatment approved by his physician, Mr.

3 Benison has frequent, ongoing, and unpredictable skilled care needs that must be

4 addressed by a licensed nurse. These include: monitoring Mr. Benison’s vital signs

5 to ensure they remain within parameters listed in the physician’s orders, and

6 instructing caregivers in proper vital sign monitoring; monitoring cardiac status and

7 assessing for signs and symptoms of tachycardia (resting heart rate faster than

8 normal); assessing Mr. Benison for signs and symptoms of pain; assessing for signs

9 and symptoms of skin breakdown, rash and perfusion; instructing caregivers in

10 measures to protect skin integrity; assessing for medication compliance,

11 effectiveness and complications and instructing caregivers in medication dosages,

12 schedules, effects and side effects, and any food and drug interactions; assessing

13 Mr. Benison’s level of consciousness, motor and sensory reflexes, and for

14 progression of his muscular dystrophy; ensuring adequate respiratory function

15 through trach care including mobilization of lung secretions; monitoring and

16 providing ventilator support and responding to signs and symptoms of respiratory

17 distress; checking ventilator settings as per the physician orders; assessing Mr.

18 Benison’s lung fields for clear, crackles, wheezing or the absence of these in his

19 breathing patterns; monitoring Mr. Benison’s trach stoma for signs and symptoms of

20 infection; monitoring Mr. Benison’s abdomen for signs and symptoms of abdomen

21 distention and constipation; monitoring Mr. Benison for signs and symptoms of

22 urinary tract infections; and reporting significant findings and changes in Mr.

23 Benison’s condition as appropriate.

24 In-Home Nursing Authorization; Case Management and Habilitation Services

25

99. As of September 2014, the cost to the Medi-Cal program for Mr.

26 Benison’s home care, including 416 hours per month of private duty nursing, 260

27 hours of unlicensed IHSS aides and his medical equipment and supplies, was

28 approximately $180,219.00 per year. This is his maximum budget for NF/AH

23
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 25 of 35 Page ID #:273

1 Waiver services because of the cost-cap imposed by DHCS.

2

100. Since January 2014, Mr. Benison’s physician has ordered one-to-one

3 private duty nursing care for him so that he can receive the 24-hour care that he

4 needs to remain safely at home. Mr. Benison requested 24-hour nursing from

5 Defendants in February 2014. Defendants deferred his request for 24-hour nursing

6 and have not provided him with a written notice of action as to their decision.

7 However, because Mr. Benison lives on his own, he relies on an unlicensed live-in

8 IHSS aide as a backup care provider. In addition to the NF/AH Waiver cost-cap

9 which would prevent Mr. Benison from receiving authorization for 24-hour nursing,

10 DHCS will also not authorize direct care services, or any combination of direct care

11 services, exceeding 24 hours of care per day under the NF/AH Waiver. NF/AH

12 Waiver at 196. Therefore, Plaintiff Benison needs 24 hours of nursing care per day,

13 but he also cannot give up his live-in backup caregiver. Thus, given the limitations

14 of the existing NF/AH Waiver rules, he is requesting additional hours per month of

15 nursing care to ensure that he can receive round-the-clock care.

16

101. Additionally, Mr. Benison needs Case Management Services and

17 Habilitation services to help him organize his nurses and IHSS workers’ schedules,

18 enroll back in graduate studies, enable him to avail of social activities and

19 community services, and gain an overall better quality of life. These services are

20 available through the NF/AH Waiver, but are not available to Mr. Benison because

21 of the Subacute Waiver cost-cap.

22 DEFENDANTS’ ACTIONS PLACE INDIVIDUAL PLAINTIFFS AT RISK

23 OF INSTITUTIONALIZATION AND VIOLATE THE LAW

24

102. Defendants have placed an arbitrary cost-cap on home and community-

25 based services provided under the NF/AH Waiver, which is far less than the actual

26 rate for institutional facilities.

27

103. Defendants have great flexibility and discretion in their administration

28 of the NF/AH waiver. They have the authority to make modifications to ensure that

24
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 26 of 35 Page ID #:274

1 Medi-Cal recipients such as individual Plaintiffs receive sufficient and medically

2 necessary NF/AH Waiver services to avoid institutional placement and receive the

3 necessary services as their medical conditions require.

4

104. According to Plaintiffs Thomas, Congdon, and Benison’s medical

5 professionals, home is the safest place for them to maximize their health condition

6 and prolong their lives. Placement in an institution, however, will almost certainly

7 cause health deterioration and possible death within a short period of time.

8

105. Defendants are refusing to provide additional NF/AH Waiver services

9 for individual Plaintiffs solely due to the fact that DHCS has imposed a cost-cap on

10 NF/AH Waiver services, which is lower than the equivalent institutional rate, and

11 which is without medical justification, nor is it required by federal law.

12

106. Defendants’ administration and imposition of the NF/AH Waiver cost-

13 cap directly injures organizational Plaintiff IN SPIRIT. As a result of Defendants’

14 illegal administration of the NF/AH waiver, IN SPIRIT’s mission to enable clients

15 to live safely at home is frustrated and its limited resources are diverted from other

16 clients in order to serve NF/AH Waiver recipients whose at-home care needs would

17 be met, but for the NF/AH Waiver cost-cap.

18

107. Plaintiffs’ needs can be reasonably accommodated by Defendants

19 providing NF/AH Waiver services up to the rate that Defendants would actually pay

20 if Plaintiffs were to be admitted to an institutional facility; and/or modifying any of

21 their Home and Community-Based Services Waivers to permit Plaintiffs to receive

22 the NF/AH Waiver services that they require and that their physicians have ordered.

23

108. Defendants have the option to administer the NF/AH waiver so as not

24 to create a bias towards institutional placement. Defendants could increase the

25 NF/AH Waiver cost-caps to levels that are equal to the amount actually paid to

26 institutional facilities, or utilize an aggregate cost-cap. Instead, Defendants have

27 chosen to administer the NF/AH Waiver in such a way as to discriminate against

28 Plaintiffs and to place them at risk of institutional placement, with life threatening

25
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 27 of 35 Page ID #:275

1 consequences.

2

109. Without the appropriate level of NF/AH Waiver services to remain in

3 their homes, individual Plaintiffs will have no choice but institutional placement,

4 which will separate them from their families and communities and also poses

5 significant risks to their health.

6 VII. LEGAL CLAIMS

7

FIRST CLAIM FOR RELIEF

8

(Defendant Director Jennifer Kent)

9

Americans with Disabilities Act, 42 U.S.C. § 12131 et seq.

10

110. Plaintiffs reallege and incorporate herein by reference each and every

11 allegation and paragraph set forth previously.

12

111. Individual Plaintiffs are “qualified individuals with a disability”

13 within the meaning of the ADA in that they have physical and/or mental

14 impairments that substantially limit one or more major life activities, including their

15 ability to live independently without support.

16

112. Individual Plaintiffs meet the essential eligibility requirements for

17 Medi-Cal services, including services necessary to maintain them in their homes in

18 the community.

19

113. Organizational Plaintiff IN SPIRIT represents the interests of

20 individual Plaintiffs in that it provides assistance to individuals with disabilities to

21 enable them to live in their own homes. IN SPIRIT’s mission is thwarted by

22 Defendant’s actions, which hinder its ability to provide assistance and divert its

23 resources from serving clients who would otherwise be served by the organization.

24

114. Defendant Jennifer Kent is the Director of Defendant DHCS, which

25 has responsibility for providing Medi-Cal and state-funded home and community-

26 based and institutional services, and is therefore a government entity subject to Title

27 II of the ADA. 42 USC §12131(1)(A) and (B) (1990).

28

115. Defendant is obligated under the ADA to administer its programs in a

26
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 28 of 35 Page ID #:276

1 manner that enables qualified individuals with disabilities to live in the most

2 integrated setting appropriate to their needs. Defendant’s denial and reduction of

3 adequate and medically necessary in-home nursing, and failure to provide Plaintiffs

4 with medically necessary NF/AH Waiver services, has denied Plaintiffs the services

5 they need to remain safely in the community, thereby placing them at risk of

6 institutionalization in violation of the ADA’s integration mandate.

7

116. Defendant has discriminated against Plaintiffs in ways that include

8 arbitrarily setting cost-caps for the NF/AH Waiver far below the actual rate paid for

9 institutional services in equivalent facilities, thus denying Plaintiffs funds for home

10 and community-based services that would otherwise be available for institutional

11 services.

12

117. Defendant has discriminated against Plaintiffs by failing to provide

13 reasonable modifications to programs and services in ways that include: failing to

14 increase the NF/AH Waiver cost-caps within federal cost neutrality limitations to

15 enable Plaintiffs to receive adequate and medically necessary NF/AH Waiver

16 services; and failing to offer an exception to the NF/AH Waiver cost-cap that would

17 enable Plaintiffs to receive NF/AH Waiver services at a level adequate to meet their

18 needs.

19

118. By denying Plaintiffs adequate and necessary NF/AH Waiver services

20 commensurate with their actual need, as opposed to arbitrary service limitations,

21 Defendant has imposed eligibility requirements which unlawfully screen Plaintiffs

22 out from fully and equally enjoying NF/AH Waiver services, and from receiving

23 adequate care to remain safely at home.

24

119. Defendant has utilized criteria and methods of administration that

25 subject Plaintiffs to discrimination on the basis of disability, including risk of

26 unnecessary institutionalization, in ways that include: (1) designing and

27 implementing Home and Community-Based Services Waivers which set arbitrarily

28 low cost-caps for NF/AH Waiver services, while paying significantly higher rates

27
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 29 of 35 Page ID #:277

1 for the institutional alternative; and (2) imposing eligibility criteria, cost limitations

2 and other criteria not required by federal limitations, which restrict in-home care in

3 favor of institutional care.

4

120. Defendant’s actions are in violation of Title II of the ADA.

5

121. Pursuant to 42 U.S.C. § 12133 (1990), Plaintiffs are entitled to

6 declaratory and injunctive relief, as well as reasonable attorneys’ fees and costs

7 incurred in bringing this action.

8

SECOND CLAIM FOR RELIEF

9

(Defendant DHCS)

10

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

11

122. Plaintiffs reallege and incorporate herein by reference each and every

12 allegation and paragraph set forth previously.

13

123. Individual Plaintiffs are “qualified individuals with a disability” under

14 Section 504 of the Rehabilitation Act of 1973, as amended – 29 U.S.C. § 794 and

15 implementing regulations – in that they have physical and/or mental impairments

16 that substantially limit one or more major life activities, including their ability to

17 live independently without support.

18

124. Individual Plaintiffs meet the essential eligibility requirements for

19 Medi-Cal services, including services necessary to maintain them in their homes in

20 the community.

21

125. Organizational Plaintiff IN SPIRIT represents the interests of

22 individual Plaintiffs in that it provides assistance to individuals with disabilities to

23 enable them to live in their own homes. IN SPIRIT’s mission is thwarted by

24 Defendant’s actions, which hinder its ability to provide assistance and divert its

25 resources from serving clients who would otherwise be served by the organization.

26

126. Defendant DHCS is a recipient of federal monies that provides Medi-

27 Cal home and community-based and institutional services and other Medi-Cal

28 services and is therefore a government entity subject to Section 504. 29 U.S.C. §

28
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 30 of 35 Page ID #:278

1 794(b) (2014).

2

127. Defendant’s denial and reduction of adequate and necessary in-home

3 nursing and refusal to provide NF/AH Waiver services has barred individual

4 Plaintiffs from receiving the services they need to continue to live in the community,

5 thereby placing them at imminent risk of institutionalization in violation of Section

6 504’s integration mandate.

7

128. Defendant has discriminated against Plaintiffs in ways that include

8 arbitrarily setting cost-caps for the NF/AH Waiver far below the actual rate paid for

9 institutional services in equivalent nursing facilities, thus denying Plaintiffs funds

10 for home and community-based services that would otherwise be available for

11 institutional services.

12

129. By denying Plaintiffs adequate and necessary NF/AH Waiver services

13 commensurate with their actual need, as opposed to arbitrary service limitations,

14 Defendant has imposed eligibility requirements which unlawfully screen Plaintiffs

15 out from fully and equally enjoying NF/AH Waiver services, and from receiving

16 adequate care to remain safely at home.

17

130. Defendant has utilized criteria and methods of administration that

18 subject Plaintiffs to discrimination on the basis of disability, including risk of

19 unnecessary institutionalization, by, including but not limited to the following: (1)

20 designing and implementing Home and Community-Based Services Waivers which

21 set arbitrarily low cost-caps for NF/AH Waiver services, while paying significantly

22 higher rates for the institutional alternative; and (2) imposing eligibility criteria, cost

23 limitations and other criteria not required by federal limitations, which restrict in-

24 home care in favor of institutional care.

25

131. Defendant’s actions violate Section 504.

26 //

27 //

28 //

29
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 31 of 35 Page ID #:279

1

THIRD CLAIM FOR RELIEF

2

(Defendants DHCS and Director Kent)

3

Violation of Government Code Sections 11135 and 11139

4

132. Plaintiffs reallege and incorporate herein by reference each and every

5 allegation and paragraph set forth previously.

6

133. Individual Plaintiffs are persons with disabilities within the meaning

7 of California Government Code section 11135(c) et seq. (2011) and its

8 implementing regulations.

9

134. Individual Plaintiffs meet the essential eligibility requirements for

10 Medi-Cal services, including services necessary to maintain them in their homes in

11 the community.

12

135. Organizational Plaintiff IN SPIRIT represents the interests of

13 individual Plaintiffs in that it provides assistance to individuals with disabilities to

14 enable them to live in their own homes. IN SPIRIT’s mission is thwarted by

15 Defendants’ actions, which hinder its ability to provide assistance and divert its

16 resources from serving clients who would otherwise be served by the organization.

17

136. Defendants DHCS and Director Kent conduct, operate or administer

18 the state Medicaid program, entitled Medi-Cal, which is directly funded, in part, by

19 state financial assistance within the meaning of California Government Code section

20 11135(a) and implementing regulations.

21

137. Defendants are obligated to administer their programs in a manner

22 that enables qualified individuals with disabilities to live in the most integrated

23 setting appropriate to their needs. Defendants’ denial and reduction of adequate and

24 medically necessary in-home nursing, and failure to provide Plaintiffs with

25 medically necessary NF/AH Waiver services, has denied Plaintiffs the services they

26 need to remain safely in the community, thereby placing them at risk of

27 institutionalization in violation of the integration mandate of Government Code

28 section 11135.

30
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 32 of 35 Page ID #:280

1

138. By administering its programs in ways that deny Plaintiffs NF/AH

2 Waiver services commensurate with their actual need, and instead imposing

3 arbitrary cost limitations on the services they may receive, Defendants have

4 discriminated against Plaintiffs, thereby excluding them from participation in,

5 denying them the benefits of, and otherwise subjecting them to discrimination in

6 violation of California Government Code section 11135 et seq. and implementing

7 regulations.

8

139. Plaintiffs further allege that violations of their rights under the

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

10 Claim for Relief are incorporated herein and constitute a violation of California

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

12 VIII. ALLEGATIONS CONCERNING INJUNCTIVE AND DECLARATORY

13

RELIEF

14

140. Defendants’ actions, as alleged herein, have resulted in and will

15 continue to result in irreparable injury to Plaintiffs caused by the refusal to cover

16 medically necessary services under the NF/AH waiver, which they need to remain in

17 their homes and avoid unnecessary institutional placement. Plaintiffs have no plain,

18 speedy or adequate remedy at law.

19

141. IN SPIRIT is also subject to irreparable injury as a result of the

20 NF/AH Waiver cost-cap, for it provides financial aid to NF/AH Waiver recipients to

21 supplement at-home care which would otherwise be covered by the NF/AH Waiver,

22 but for imposition of the cost-cap. IN SPIRIT’s mission is thereby impeded, where

23 funds are put toward assisting NF/AH Waiver recipients with home care needs,

24 rather than funding non-Waiver recipients.

25

142. An actual controversy exists between Plaintiffs and Defendants, in

26 that Plaintiffs claim that Defendants have failed to provide services in the most

27 integrated setting appropriate to meet Plaintiffs’ needs, in violation of federal and

28 state law and Defendants deny all such contentions.

31
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 33 of 35 Page ID #:281

1

143. Defendant Kent can either adopt or “alternate” (reject in whole or

2 part) any administrative decision arising out of claims against DHCS. California

3 Manual of Policies and Procedures, Sections 22-061 and 22-062. Therefore, the

4 administrative appeal process offers no remedy or protection to Plaintiffs, as the

5 Defendants in this action are the very entity which will make a determination of

6 what NF/AH Waiver services will be provided to Plaintiffs.

7 IX. REQUEST FOR RELIEF

8

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

9 remedies on behalf of themselves and all others similarly situated:

10

A. Assume jurisdiction over this action and maintain continuing

11 jurisdiction until Defendants are in full compliance with every order of this Court;

12

B. Declare that Defendants’ imposition of arbitrary NF/AH Waiver cost-

13 caps, which deny Plaintiffs sufficient NF/AH Waiver services to meet their

14 undisputed needs, and Defendants’ policies, practices, acts and omissions as set

15 forth above violate:

16

i. The Americans with Disabilities Act (“ADA”), (42 U.S.C. §§

17

12101-12213 (2008)) and implementing regulations.

18

ii.

Section 504 of the Rehabilitation Act (“Section 504”), (29

19

U.S.C. §§ 794-794a (2014)) and implementing regulations; and

20

iii.

California Government Code section 11135. (Cal. Gov’t. Code

21

§ 11135 (2011)) and implementing regulations.

22

C. Grant a temporary restraining order and preliminary injunction

23 enjoining Defendants, their officers, agents, employees, attorneys, successors, and

24 all persons who are in active concert or participation with them from reducing

25 medically necessary Medi-Cal funded in-home care below Mr. Thomas’ current

26 level of 450 hours per month of licensed vocational nursing care, 2 hours per month

27 of RN care and 240.04 hours per month of IHSS personal care services until such

28 time as the matter before this Court may be finally decided.

32
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 34 of 35 Page ID #:282

1

144. Grant a permanent injunction enjoining Defendants, their officers,

2 agents, employees, attorneys, successors, and all persons who are in active concert

3 or participation with them from discriminating against Plaintiffs, including placing

4 them at risk of unnecessary institutionalization, by:

5

i. Failing to offer reasonable modifications to their programs and

6

policies to enable Plaintiffs to receive medically necessary in-

7

home nursing as ordered by their physicians;

8

ii. Failing to offer reasonable modifications to their programs and

9

policies to enable Plaintiffs to receive other NF/AH Waiver

10

services like Case Management and Habilitation services;

11

iii. Imposing eligibility requirements which unlawfully screen

12

Plaintiffs out of the NF/AH Waiver program and prevent them

13

from fully and equally enjoying NF/AH Waiver services, and

14

from receiving adequate care to remain safely at home;

15

iv. Utilizing criteria and methods of administration that subject

16

Plaintiffs to discrimination on the basis of disability, including

17

placing them at risk of unnecessary institutionalization.

18

145. Issue an order requiring Defendants to:

19

i.

Authorize Medi-Cal funded services for Plaintiffs through the

20

Nursing Facility/Acute Hospital Waiver or other appropriate

21

Home and Community-Based Services Waivers, subject to

22

federal cost neutrality requirements, to enable them to receive

23

services commensurate with their needs, and as authorized by

24

their treating physicians;

25

ii. Amend their policies and procedures consistent with the

26

injunction above, and to require that Nursing Facility/Acute

27

Hospital Waiver participants be provided with medically

28

necessary Medi-Cal in-home services, commensurate with their

33
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

Case 2:14-cv-08013-FMO-AGR Document 26 Filed 01/29/15 Page 35 of 35 Page ID #:283

1

assessed needs, and as identified by their treating physicians,

2

consistent with federal cost neutrality requirements.

3

146. Retain jurisdiction over the Defendants until such time as the Court is

4 satisfied that Defendants’ unlawful policies, practices, and acts complained of herein

5 cannot recur.

6

147. Award Plaintiffs the costs of this action and reasonable attorneys’

7 fees pursuant to 20 U.S.C. § 794a (2014); 42 U.S.C. §§ 12133 (1990), 12205

8 (1990); Cal. Civ. Proc. Code § 1021.5 (1993); and as otherwise may be allowed by

9 law.

10

148. Grant such other and further relief as the Court deems to be just and

11 equitable.

12

13

14

15 Respectfully submitted:

16

17 Date: January 29, 2015 18 19 20

/s/
Elissa Gershon Disability Rights California Attorneys for Plaintiffs

21

22

23

24

25

26

27

28

34
Jerry Thomas et al. v. Jennifer Kent, DHCS; 2:14-cv-08013 FMO (AGRx) First Amended Complaint for Injunctive and Declaratory Relief

 </s> Case 2:14-cv-08013-FMO-AGR Document 171 Filed 08/04/16 Page 1 of 4 Page ID #:20031

1 VANITA GUPTA

2

Principal Deputy Assistant Attorney General EVE L. HILL

3

Deputy Assistant Attorney General STEVEN H. ROSENBAUM

4

Chief, Special Litigation Section BENJAMIN “BO” TAYLOE

5

Deputy Chief MATHEW S. SCHUTZER (N.Y. Bar No. 5136007)

6

Trial Attorney United States Department of Justice, Civil Rights Division

7

Special Litigation Section 950 Pennsylvania Avenue, NW - PHB

8

Washington, DC 20530 Telephone: (202) 616-3179

9

Facsimile: (202) 514-4883 E-mail: Mathew.schutzer@usdoj.gov

10 EILEEN M. DECKER

11

United States Attorney DOROTHY A. SCHOUTEN

12

Assistant United States Attorney Chief, Civil Division

13

JOANNA HULL (CA State Bar No. 227153) Assistant United States Attorney

14

Chief, Civil Rights Section 300 North Los Angeles Street, Suite 7516

15

Los Angeles, California 90012 Telephone: (213) 894-6585

16

Facsimile: (213) 894-7819 Email: Joanna.hull@usdoj.gov

17 Attorneys for the United States of America

18

UNITED STATES DISTRICT COURT

19

FOR THE CENTRAL DISTRICT OF CALIFORNIA

20 JERRY THOMAS, by and through his

21

Guardian ad Litem BEVERLY THOMAS, SEAN BENISON, and JUAN

22 PALOMARES,

23

Plaintiffs,

24

v.

25

JENNIFER KENT, Director of the Department of Health Care Services,

26

State of California DEPARTMENT OF HEALTH CARE SERVICES,

27

Defendants.

2:CV14-08013-FMO (AGRx)

SUPPLEMENTAL STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA

Date: Time: Courtroom: Judge Trial Date: Action Filed:

August 18, 2016 10:00 a.m. 22 Hon. Fernando M. Olguin October 11, 2016 October 16, 2014

28

Case 2:14-cv-08013-FMO-AGR Document 171 Filed 08/04/16 Page 2 of 4 Page ID #:20032

1

SUPPLEMENTAL STATEMENT OF INTEREST OF THE

2

UNITED STATES OF AMERICA

3

In connection with the Plaintiffs’ renewed motion for summary judgment, ECF

4 No. 151, the United States hereby incorporates by reference and supplements its

5 Statement of Interest filed on March 29, 2016. ECF No. 112 (“SOI”). Although the

6 State has since submitted a Waiver amendment for CMS approval, see generally Jt.

7 Mem. Mot. Summ. J. 9:12-10:13, ECF No. 152, the legal analysis the Court must

8 undertake is unchanged: has the State “ensure[d]” that individuals subject to a cost

9 limitation “who require additional care to remain in the community will have the

10 necessary alternative services identified and put in place to avoid unnecessary

11 institutionalization[?]” SOI at 6:15-17 (citing Brantley v. Maxwell-Jolly, 656 F. Supp.

12 2d 1161, 1174 (N.D. Cal. 2009)).

13

As the United States noted in its SOI, a State’s compliance with its Medicaid

14 obligations and its compliance with the ADA are “independent legal obligations.” SOI

15 at 2, n.4 (“Federal approval of a waiver application does not address the existence of a

16 violation of the ADA.”). Thus, while a State may cap the services it provides through a

17 Medicaid waiver, as California has done in the operative Waiver, it is not exempt from

18 providing services in excess of that cap in order “to comply with the ADA or other

19 laws.” SOI at 5:7-15 (quoting U.S. Dep’t of Justice, Statement of the Department of

20 Justice on Enforcement of the Integration Mandate of Title II of the Americans with

21 Disabilities Act and Olmstead v. L.C. n.4 (June 22, 2011),

22 http://www.ada.gov/olmstead/q&a_olmstead.htm). Defendants’ arguments in opposition

23 to summary judgment appear to blur that distinction, by implying that the State has

24 complied with its ADA obligations simply by submitting to CMS a Waiver amendment

25 which purports to remove the individual cost limitations. See, e.g., Defs’. Suppl. Br.

26 Opp’n Mot. Summ. J. 5:5-6, ECF No. 157 (“[T]here is nothing more the Department can

27 do at the present time to remove the individual cost limits from the current Waiver.”).

28 1

Case 2:14-cv-08013-FMO-AGR Document 171 Filed 08/04/16 Page 3 of 4 Page ID #:20033

1 Defendants’ narrow focus on the steps the State can take to remove the individual cost

2 limits from the current Waiver ignores the steps it could take to otherwise comply with

3 the ADA, including by example using state-only dollars to fund services in excess of the

4 currently applicable cost limits. See, e.g., SOI at 6, n. 9 (noting that the State intended

5 “to use state-only dollars to fund Waiver costs over individual cost limits attributable to

6 [In-Home Supportive Services] and [Waiver Personal Care Services] overtime rather

7 than reduce services to Waiver participants.”) (second alteration in original). Moreover,

8 Defendants’ narrow focus on the steps the state can take to remove the individual cost

9 limits from the current Waiver ignores the legal reality that federal approval of the

10 proposed amendment will not necessarily bring the State into compliance with the ADA.

11 SOI at 2, n.4. Absent establishing a fundamental alteration defense, see SOI at 4, n.7,

12 with or without an amended Waiver the State must operate its service system in a

13 manner which ensures that, on an individual level, “services will be identified and in

14 place for Plaintiffs” to avoid needless institutionalization. SOI at 5:16-6:4 (citing

15 Brantley, 656 F. Supp. 2d at 1174 and V.L. v. Wagner, 669 F. Supp. 2d 1106, 1122 (N.D.

16 Cal. 2009)).

17

The United States encourages the Court to assess Plaintiffs’ motion in light of the

18 principles set forth in its SOI, as supplemented above.

19

20

21

22

23

24

25

26

27

28 2

Case 2:14-cv-08013-FMO-AGR Document 171 Filed 08/04/16 Page 4 of 4 Page ID #:20034

1 Dated: August 4, 2016

2 EILEEN M. DECKER 3 United States Attorney

4

5 DOROTHY A. SCHOUTEN

6

Assistant United States Attorney Chief, Civil Division

7

8

9

10

11 /s/ Joanna Hull 12 JOANNA HULL
Assistant United States Attorney 13 Chief, Civil Rights Section
14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Respectfully submitted, VANITA GUPTA Principal Deputy Assistant Attorney General Civil Rights Division EVE L. HILL Deputy Assistant Attorney General STEVEN H. ROSENBAUM Chief, Special Litigation Section BENJAMIN “BO” TAYLOE Deputy Chief /s/ Mathew S. Schutzer MATHEW S. SCHUTZER Trial Attorney
Attorneys for the United States of America
3

 </s> Case 2:14-cv-08013-FMO-AGR Document 322 Filed 06/05/17 Page 1 of 11 Page ID #:32373

1

2

3

4

5

6

7

8

9

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11

12 JERRY THOMAS, et al.,

13

Plaintiffs,

14

v.

15 JENNIFER KENT, et al.,

16

Defendants.

17

) Case No. CV 14-8013 FMO (AGRx) ) ) ) ) ORDER RE: PLAINTIFFS’ MOTION FOR ) SUMMARY JUDGMENT ) ) ) ) )

18

Having reviewed and considered all the briefing filed with respect to the Motion for

19 Summary Judgment [] (Dkt. 193, “Motion”) filed by plaintiffs Jerry Thomas (“Thomas”), Sean

20 Benison (“Benison”), and Juan Palomares (“Palomares”) (collectively, “plaintiffs”), the court finds

21 that oral argument is not necessary to resolve the Motion, see Fed. R. Civ. P. 78; Local Rule 7-15;

22 Willis v. Pac. Mar. Ass’n, 244 F.3d 675, 684 n. 2 (9th Cir. 2001), and concludes as follows.

23

INTRODUCTION

24

On October 23, 2014, plaintiffs filed this action against the California Department of Health

25 Care Services (“DHCS”) and former DHCS Director, Toby Douglas. (See Dkt. 4, Complaint).

26 Plaintiffs filed a First Amended Complaint on January 29, 2015, (see Dkt. 26, “FAC”), and the

27 operative Second Amended Complaint on July 7, 2015. (See Dkt. 70, “SAC”). In the SAC,

28 plaintiffs assert three claims against DHCS and the current DHCS Director, Jennifer Kent

Case 2:14-cv-08013-FMO-AGR Document 322 Filed 06/05/17 Page 2 of 11 Page ID #:32374

1 (collectively, “defendants”) for violations of: (1) the Americans with Disabilities Act (“ADA”), 42

2 U.S.C. § 12131, et seq.; (2) the Rehabilitation Act, 29 U.S.C. § 794, et seq.; and (3) California

3 Government Code §§ 11135 & 11139. (See id. at ¶¶ 124-153).

4

BACKGROUND

5

Plaintiffs are California residents who “all have significant physical disabilities and were

6 institutionalized but now live in their own homes with Medicaid-funded nursing and attendant

7 care[.]” (See Dkt. 194, Parties’ Joint Memorandum of Points and Authorities Re: Plaintiffs’ Motion

8 for Summary Judgment [] (“Joint Br.”) at 1). “Medicaid, called Medi-Cal in California, is a joint

9 federal and state medical assistance program for eligible low-income people.” (Id. at 4). Plaintiffs

10 receive home care pursuant to the Nursing Facility/Acute Hospital Home and Community-Based

11 Services Waiver program (“NF/AH Waiver” or “Waiver”), which “is intended to provide in-home

12 services for Medicaid recipients with disabilities who qualify for placement in nursing facilities and

13 other institutions.” (Id. at 1). The NF/AH Waiver program is operated by the DHCS, (see id. at 6),

14 but its administration is overseen by a federal agency called the Centers for Medicare and

15 Medicaid (“CMS”). (See id. at 5). In general, the DHCS cannot modify the Waiver program

16 without first submitting a proposal to, and obtaining approval from, the CMS. (See id. at 5-7).

17

When the instant Motion was filed, the NF/AH Waiver program provided that eligible

18 patients “may receive services . . . if they require a level of care otherwise available in an

19 institution” such as a hospital or nursing facility. (See Dkt. 112, Statement of Interest of the United

20 States of America (“SOI”) at 2). In that circumstance, the “cost of services available to” the patient

21 is “capped according to that individual’s designated level of care.” (Id.). “Although the caps

22 correspond to the type of institution in which the individual would otherwise receive services, the

23 Waiver caps are lower than the average cost of providing care in the corresponding institution.”

24 (Id.). Despite the Waiver’s cost limits, defendants “have administered treatment plans for

25 individuals on the [W]aiver with costs in excess of the applicable limit.” (Id.). Here, the DHCS sent

26 letters to all three plaintiffs on December 2, 2015, stating that if the costs of plaintiffs’ medically

27 necessary services exceed the Waiver’s current individual cost limit, the DHCS will nonetheless

28 continue to pay for those services. (See Dkt. 194, Joint Br. at 20, 22 & 25).

2

Case 2:14-cv-08013-FMO-AGR Document 322 Filed 06/05/17 Page 3 of 11 Page ID #:32375

1

After the instant Motion was filed, the CMS approved an amendment to the Waiver

2 program. (See Dkt. 305, Defendants’ Ex Parte Application to: Notify the Court of New Authority

3 [] (“Defs.’ Application”) at 4-5). The amendment “purports to remove the individual cost limitations”

4 from the Waiver program. (See Dkt. 171, Supplemental Statement of Interest of the United States

5 of America (“Supp. SOI”) at 1). However, plaintiffs contend that the amendment “simply

6 embedded the cost limits into a different section of the Waiver document . . . and now calls them

7 ‘cost amounts’” instead of “cost limits.” (See Dkt. 306, Plaintiffs’ Opposition to Defendants’ Ex

8 Parte Application to: Notify the Court of New Authority [] (“Pls.’ Opp. to Defs.’ Application”) at 10).

9 Indeed, the amended Waiver program sets forth the same cost limit figures as it did before the

10 amendment took effect. (Compare Dkt. 305-2, Defs.’ Application, Exh. A, Application for a 1915(c)

11 Home and Community-Based Services Waiver at ECF 31939 (amended Waiver program)

12 with Dkt. 197-22, Declaration of Elissa Gershon [] (“Gershon Decl.”), Attachment (“Att.”) 66,

13 Nursing Facility/Acute Hospital (NF/AH) Transition and Diversion Waiver at ECF 25149 (Waiver

14 program before amendment)).

15

According to plaintiffs, the amended NF/AH Waiver program will continue to encourage a

16 “practice of imposing individual cost limits far below institutional rates[,]” (see Dkt. 306, Pls.’ Opp.

17 to Defs.’ Application at 12), which forces participants “to utilize lower cost Waiver services (i.e.,

18 unlicensed attendant care instead of nurses) or reduce the amount of services the participant

19 receives.” (Dkt. 194, Joint Br. at 7). In addition, plaintiffs state that “participants with service

20 needs in excess of the individual cost limits may also be disenrolled from the Waiver and ‘will have

21 no other option but be admitted to nursing facilities to ensure their health and safety.’” (Id.).

22 Plaintiffs therefore “seek injunctive and declaratory relief . . . requiring Defendants to take steps

23 to ensure that Plaintiffs . . . can get the services they need to remain safely at home[.]” (Id. at 1).

24

Further, although the DHCS “has stated that Plaintiffs can receive all medically necessary

25 waiver services without regard to the cost limits[,]” (Dkt. 194, Joint Br. at 3), plaintiffs contend that

26 the DHCS “has still refused to approve all of the services recommended by their doctors.” (Id. at

27 1). In late 2015, all three plaintiffs submitted updated requests for Waiver services to the DHCS.

28 (See id. at 26). The requests were signed by each of plaintiffs’ treating physicians. (See id.). The

3

Case 2:14-cv-08013-FMO-AGR Document 322 Filed 06/05/17 Page 4 of 11 Page ID #:32376

1 DHCS responded by sending letters to each plaintiff stating that it would continue paying for all

2 medically necessary Waiver services above the Waiver’s cost limits, but that it also would

3 “continue to conduct utilization management to determine whether requested services [we]re

4 medically necessary and consistent with applicable law.” (Id.). To date, the DHCS has not

5 provided plaintiffs with all the services identified in their 2015 requests. (See id. at 26-27).

6 According to plaintiffs, “Benison remains without 46 hours per month of services to fulfill his need

7 for 24-hour ‘direct care’ services per day.” (Id. at 27). Further, neither Thomas nor Palomares

8 have received any further communication regarding the outcome of the DHCS’s review. (See id.

9 at 26 & 27).

10

LEGAL STANDARD

11

Rule 56(a) of the Federal Rules of Civil Procedure authorizes the granting of summary

12 judgment “if the movant shows that there is no genuine dispute as to any material fact and the

13 movant is entitled to judgment as a matter of law.” The standard for granting a motion for

14 summary judgment is essentially the same as for granting a directed verdict. See Anderson v.

15 Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511 (1986). Judgment must be entered

16 “if, under the governing law, there can be but one reasonable conclusion as to the verdict.” Id.

17

The moving party has the initial burden of identifying relevant portions of the record that

18 demonstrate the absence of a fact or facts necessary for one or more essential elements of each

19 cause of action upon which the moving party seeks judgment. See Celotex Corp. v. Catrett, 477

20 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986). If the moving party fails to carry its initial burden of

21 production, “the nonmoving party has no obligation to produce anything.” Nissan Fire & Marine

22 Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000).

23

If the moving party has sustained its burden, the burden then shifts to the nonmovant to

24 identify specific facts, drawn from materials in the file, that demonstrate that there is a dispute as

25 to material facts on the elements that the moving party has contested. See Celotex, 477 U.S. at

26 324, 106 S.Ct. at 2553; Anderson, 477 U.S. at 256, 106 S.Ct. at 2514 (a party opposing a properly

27 supported motion for summary judgment “must set forth specific facts showing that there is a

28

4

Case 2:14-cv-08013-FMO-AGR Document 322 Filed 06/05/17 Page 5 of 11 Page ID #:32377

1 genuine issue for trial.”).1 A factual dispute is material only if it affects the outcome of the litigation

2 and requires a trial to resolve the parties’ differing versions of the truth. SEC v. Seaboard Corp.,

3 677 F.2d 1301, 1306 (9th Cir. 1982). Summary judgment must be granted for the moving party

4 if the nonmoving party “fails to make a showing sufficient to establish the existence of an element

5 essential to that party’s case, and on which that party will bear the burden of proof at trial.”

6 Celotex, 477 U.S. at 322, 106 S.Ct. at 2552; see Anderson, 477 U.S. at 252, 106 S.Ct. at 2512

7 (parties bear the same substantive burden of proof as would apply at a trial on the merits).

8

In determining whether a triable issue of material fact exists, the evidence must be

9 considered in the light most favorable to the nonmoving party. See Barlow v. Ground, 943 F.2d

10 1132, 1134 (9th Cir. 1991), cert. denied, 505 U.S. 1206, 112 S.Ct. 2995 (1992). However,

11 summary judgment cannot be avoided by relying solely on “conclusory allegations [in] an affidavit.”

12 Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188 (1990); see also Matsushita

13 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986) (more

14 than a “metaphysical doubt” is required to establish a genuine issue of material fact). “The mere

15 existence of a scintilla of evidence in support of the plaintiff’s position” is insufficient to survive

16 summary judgment; “there must be evidence on which the [fact finder] could reasonably find for

17 the plaintiff.” Anderson, 477 U.S. at 252, 106 S.Ct. at 2512.

18

DISCUSSION

19

Plaintiffs contend that the NF/AH Waiver program violates the ADA, the Rehabilitation Act,

20 and California Government Code §§ 11135 & 11139 because its cost limits create a “serious risk

21 of institutionalization[.]” (Dkt. 194, Joint Br. at 32 & 43). The ADA provides that “no qualified 22 individual with a disability2 shall, by reason of such disability, be excluded from participation in or

23

24

1 “In determining any motion for summary judgment or partial summary judgment, the Court

25

may assume that the material facts as claimed and adequately supported by the moving party are admitted to exist without controversy except to the extent that such material facts are (a) included

26 in the “Statement of Genuine Disputes” and (b) controverted by declaration or other written

evidence filed in opposition to the motion.” Local Rule 56-3.

27

2 The ADA defines a “qualified individual with a disability” as “an individual with a disability 28 who, with or without reasonable modifications to rules, policies, or practices, the removal of

5

Case 2:14-cv-08013-FMO-AGR Document 322 Filed 06/05/17 Page 6 of 11 Page ID #:32378

1 be denied the benefits of the services, programs, or activities of a public entity, or be subjected

2 to discrimination by any such entity.” 42 U.S.C. § 12132. “A public entity shall make reasonable

3 modifications in policies, practices, or procedures when the modifications are necessary to avoid

4 discrimination on the basis of disability, unless the public entity can demonstrate that making the 5 modifications would fundamentally alter the nature of the service, program, or activity.”3 28 C.F.R.

6 § 35.130(b)(7)(i). “Because the applicable provisions of the ADA and the Rehabilitation Act are

7 ‘co-extensive,’ [the court] discuss[es] both claims together, focusing on the ADA.” M.R. v. Dreyfus,

8 697 F.3d 706, 733 (9th Cir. 2012). Similarly, California Government Code § 11135(b) affords the

9 same level of protections as the ADA. See Cal. Gov’t Code § 11135(b) (“With respect to

10 discrimination on the basis of disability, [state] programs and activities . . . shall meet the

11 protections and prohibitions contained in . . . the federal Americans with Disabilities Act[.]”).

12

In enacting the ADA, Congress found that “historically, society has tended to isolate and

13 segregate individuals with disabilities, and, despite some improvements, such forms of

14 discrimination against individuals with disabilities continue to be a serious and pervasive social

15 problem.” 42 U.S.C. § 12101(a)(2). “Moreover, Congress found that discrimination against

16 individuals with disabilities persists in such critical areas as institutionalization, and that individuals

17 with disabilities continually encounter various forms of discrimination, including outright intentional

18 exclusion, failure to make modifications to existing facilities and practices, and segregation[.]”

19 Dreyfus, 697 F.3d at 733 (internal citation, quotation marks, and alteration marks omitted).

20

21

22 architectural, communication, or transportation barriers, or the provision of auxiliary aids and

23 services, meets the essential eligibility requirements for the receipt of services or the participation

24

in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2). It is undisputed that plaintiffs are all qualified individuals with disabilities within the meaning of the ADA. (See,

25 generally, Dkt. 194, Joint Br.).

26

3 Defendants have not raised a fundamental alteration defense in opposition to plaintiffs’

Motion. (See, generally, Dkt. 194, Joint Br.; see also Dkt. 200, Defendants’ Response to Second

27 Supplemental Statement of Interest [of the United States of America] at 1 (“Defendants did not

intend to raise that defense in their opposition to Plaintiffs’ third MSJ, and have not asserted it at 28 any other time during this case.”)).

6

Case 2:14-cv-08013-FMO-AGR Document 322 Filed 06/05/17 Page 7 of 11 Page ID #:32379

1

The Department of Justice (“DOJ”) has promulgated regulations implementing the ADA,4

2 see 42 U.S.C. § 12134(a) (providing that “the Attorney General shall promulgate regulations . . .

3 that implement this part”), including “the so-called ‘integration mandate,’ providing that ‘a public

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

5 to the needs of qualified individuals with disabilities.” Dreyfus, 697 F.3d at 733 (quoting 28 C.F.R.

6 § 35.130(d)) (internal alteration marks omitted). To comply with the integration mandate, the

7 states must serve persons with disabilities in their community – rather than in institutions – when

8 “such placement is appropriate, the affected persons do not oppose such treatment, and the

9 placement can be reasonably accommodated, taking into account the resources available to the

10 State and the needs of others with . . . disabilities.” Olmstead v. L.C. ex rel. Zimring, 527 U.S.

11 581, 607, 119 S.Ct. 2176, 2190 (1999).

12

To prevail on a claim for a violation of the ADA’s integration mandate, “a plaintiff need only

13 show that the challenged state action creates a serious risk of institutionalization.” Dreyfus, 697

14 F.3d at 734 (“An ADA plaintiff need not show that institutionalization is ‘inevitable’ or that she has

15 ‘no choice’ but to submit to institutional care in order to state a violation of the integration

16 mandate.”). In other words, a state violates the ADA’s integration mandate when “a public entity’s

17 failure to provide community services or its cut to such services will likely cause a decline in

18 health, safety, or welfare that would lead to the individual’s eventual placement in an institution.”

19 (Dkt. 112, SOI at 6-7); see, e.g., Oster v. Lightbourne, 2012 WL 691833, *16 (N.D. Cal. 2012)

20 (granting preliminary relief where “the evidence also show[ed] that Plaintiffs [we]re likely to

21 succeed in demonstrating that the loss of [in-home supportive services] hours [would] compromise

22 the health and well-being of [in-home supportive services] recipients such that they [would] be at

23 serious risk of institutionalization”).

24

Cost limitations may violate the ADA if a state does not otherwise “‘ensure’ that individuals

25 who require additional care to remain in the community will have the necessary alternative

26

27

4 The court “afford[s] DOJ’s view considerable respect.” Dreyfus, 697 F.3d at 734 (“Because

the Department is the agency directed by Congress to issue regulations implementing Title II of 28 the ADA, its views warrant respect.”) (internal alteration marks omitted).

7

Case 2:14-cv-08013-FMO-AGR Document 322 Filed 06/05/17 Page 8 of 11 Page ID #:32380

1 services identified and put in place to avoid unnecessary institutionalization.” (Dkt. 112, SOI at

2 6); see Brantley v. Maxwell-Jolly, 656 F.Supp.2d 1161, 1174 (N.D. Cal. 2009) (holding that

3 challenged state-wide reductions in adult day care services could have been ADA-complaint if the

4 state had “implement[ed] any means of ensuring that, if and when the cuts take effect, the

5 necessary alternative services [would] be identified and in place for Plaintiffs”). “Consistent with

6 this settled law, . . . courts have frequently intervened when a state’s Medicaid services are

7 insufficient to ensure that individuals would continue to receive services in the most integrated

8 setting appropriate[.]” (Dkt. 112, SOI at 7); see, e.g., Fisher v. Oklahoma Health Care Authority,

9 335 F.3d 1175, 1178-79 & 1182 (10th Cir. 2003) (holding that plaintiffs asserted valid ADA

10 challenge to Oklahoma waiver program’s cap on five medically necessary prescriptions for

11 patients receiving community-based care “while continuing to provide unlimited prescriptions to

12 patients in nursing facilities” because the state did not allow waiver patients “to receive services

13 for which they [we]re qualified unless they agree[d] to enter a nursing home”).

14

On the other hand, “[t]he State’s responsibility, once it provides community-based treatment

15 to qualified persons with disabilities, is not boundless.” Olmstead, 527 U.S. at 603, 119 S.Ct. at

16 2188. “[W]hen there is evidence that a State has in place a comprehensive deinstitutionalization

17 scheme, which, in light of existing budgetary constraints and the competing demands of other

18 services that the State provides, including the maintenance of institutional care facilities, is

19 ‘effectively working,’ the courts will not tinker with that scheme.” Sanchez v. Johnson, 416 F.3d

20 1051, 1067-68 (9th Cir. 2005) (internal citations omitted). “The Supreme Court has instructed

21 courts to . . . give states ‘leeway’ in administering services for the disabled.” Arc of Washington

22 State Inc. v. Braddock, 427 F.3d 615, 618 (9th Cir. 2005) (“Despite the integration mandate,

23 therefore, we have held that we normally ‘will not tinker with’ comprehensive, effective state

24 programs for providing care to the disabled.”).

25

Here, there are genuine disputes of material fact as to whether the Waiver program’s cost

26 limits create a “serious risk of institutionalization” for plaintiffs, see Dreyfus, 697 F.3d at 734, and

27 whether the DHCS “has in place a comprehensive deinstitutionalization scheme” that is “effectively

28 working[.]” See Sanchez, 416 F.3d at 1067-68. It is undisputed that, for the time being, the DHCS

8

Case 2:14-cv-08013-FMO-AGR Document 322 Filed 06/05/17 Page 9 of 11 Page ID #:32381

1 “has authorized all medically necessary Waiver services to allow Plaintiffs to remain safely in their

2 homes, even if those services exceed the individual cost limits.” (Dkt. 194, Joint Br. at 35; see id.

3 at 20, 22 & 25 (describing letters sent to plaintiffs by the DHCS stating that the DHCS will pay for

4 medically necessary Waiver services that exceed the Waiver’s current individual cost limit)).

5 However, the parties vigorously dispute the long-term implications of the DHCS’s ad hoc decision

6 to suspend the Waiver’s cost limits with respect to plaintiffs. The DHCS contends that plaintiffs

7 “face no risk of institutionalization” because it “has authorized all three Plaintiffs to receive at least

8 24 hours of care per day.” (Id. at 35). Plaintiffs respond that the DHCS’s “opaque and unwritten

9 ad hoc exceptions policy . . . does not ensure that individuals who require additional care to remain

10 in the community will have the necessary alternative services identified and put in place to avoid

11 unnecessary institutionalization.” (Id. at 32).

12

The court is troubled by the fact that the DHCS could, at any time, rescind its letters to

13 plaintiffs authorizing medically necessary services above the Waiver’s cost limits, and that the

14 DHCS is essentially “refus[ing] to commit to provide Plaintiffs with ongoing services[.]” (Dkt. 194,

15 Joint Br. at 33). Importantly, “Defendants have no written policy or process for authorizing

16 exceptions to the cost ceilings.” (Dkt. 112, SOI at 2). These facts tend to show that plaintiffs are

17 at risk of institutionalization as a result of the cost limits imposed by the Waiver program.

18 However, there are material factual disputes regarding whether that risk is “serious” for purposes

19 of the ADA’s integration mandate. See Dreyfus, 697 F.3d at 734. For example, defendants have

20 offered evidence showing that plaintiffs “have been well cared for and have remained safely in

21 their homes” at all times while receiving their currently authorized services. (See Dkt. 194, Joint

22 Br. at 36) (“Plaintiffs’ contention that they are fighting to remain in their homes is vehemently

23 disputed and contradicted by the evidence.”). Defendants have also offered evidence showing

24 that their ad hoc decisions to except plaintiffs and other patients from the Waiver program’s cost

25 limits – although based on unwritten policy – add up to an “effectively working” 26 deinstitutionalization scheme.5 (See id. at 12) (noting “the large Waiver population and the

27

28

5 For example, defendants assert that although the DHCS “has no written policy or written

criteria to approve services above the individual cost limit for beneficiaries in the currently

9

Case 2:14-cv-08013-FMO-AGR Document 322 Filed 06/05/17 Page 10 of 11 Page ID #:32382

1 competing budgetary restraints”); Sanchez, 416 F.3d at 1067-68 (holding that the court must

2 consider “existing budgetary constraints and the competing demands of other services that the

3 State provides” in determining whether a state’s deinstitutionalization scheme is “effectively

4 working”). Thus, while the court has serious concerns about whether the Waiver program

5 comports with the ADA’s integration mandate, the court finds that summary judgment is not

6 appropriate at this time. See Barlow, 943 F.2d at 1134 (holding that, at the summary judgment

7 stage, the court must consider the facts in the light most favorable to the non-moving party).

8

Similarly, there are genuine disputes of material fact regarding whether plaintiffs are

9 “without medically necessary direct care” because the DHCS has not authorized “all the services

10 that Plaintiffs’ doctors have recommended.” (See Dkt. 194, Joint Br. at 32-33). Specifically,

11 defendants have presented the opinion of Dr. Rajiv Dhamija, who evaluated all three plaintiffs and

12 concluded that their currently-authorized services are sufficient to ensure that they remain safely

13 in their homes. (See id. at 19, 22 & 24). While the DHCS maintains the right to determine –

14 through the appropriate administrative process – what services are medically necessary for Waiver

15 program participants in the first instance, (see Dkt, 194, Joint Br. at 37); Cal. Welf. & Inst. Code

16 § 14059.5 (defining a “medically necessary” service), it is unclear to what extent the DHCS is

17 obligated to consider or otherwise take into account the opinions of plaintiffs’ medical providers.

18 In light of that uncertainty and given the factual disputes regarding what services are medically

19 necessary for plaintiffs, the court is persuaded that summary judgment is not appropriate at this

20 time.

21

CONCLUSION

22

Based on the foregoing, IT IS ORDERED THAT:

23

1. Plaintiffs’ Motion for Summary Judgment (Document No. 193) is denied.

24

2. Defendants’ Ex Parte Application to: Notify the Court of New Authority [] (Document No.

25 305) is granted.

26

27

approved NF/AH Waiver, it has authorized medically necessary waiver services costing in excess of the individual cost limit and have authorized such services for over 400 NF/AH Waiver

28 participants to ensure that they remain safely in their homes.” (Dkt. 195, Parties’ Statement of

Uncontroverted Facts at D93).

10

Case 2:14-cv-08013-FMO-AGR Document 322 Filed 06/05/17 Page 11 of 11 Page ID #:32383

1

3. Plaintiffs’ Ex Parte Application for Expedited Ruling on Plaintiffs’ Pending Motion for

2 Summary Judgment (Document No. 311) is denied as moot.

3 Dated this 5th day of June, 2017.

4

/s/

5

Fernando M. Olguin

United States District Judge

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11

 </s> Case 2:14-cv-08013-FMO-AGR Document 368 Filed 05/30/19 Page 1 of 19 Page ID #:35089

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

CENTRAL DISTRICT OF CALIFORNIA

8

9 JERRY THOMAS, et al.,

10

Plaintiffs,

11

v.

12 JENNIFER KENT, et al.,

13

Defendants.

14

) Case No. CV 14-8013 FMO (AGRx) ) ) ) ) ORDER RE: PENDING MOTIONS ) ) ) ) ) )

15

Having reviewed and considered all the briefing filed with respect to the Motion for

16 Attorneys’ Fees (Dkt. 355, “Pls’ Motion”) filed by Jerry Thomas (“Thomas”), Sean Benison

17 (“Benison”), and Juan Palomares (“Palomares”) (collectively, “plaintiffs”), as well as the Motion to

18 Recover Fees and Costs (Dkt. 354, “Defs’ Motion”) filed by California Department of Health Care

19 Services (“DHCS”) and Toby Douglas (“Douglas”) (collectively, “defendants”), the court finds that

20 oral argument is not necessary to resolve the Motions, see Fed. R. Civ. P. 78; Local Rule 7-15;

21 Willis v. Pac. Mar. Ass’n, 244 F.3d 675, 684 n. 2 (9th Cir. 2001), and concludes as follows.

22

BACKGROUND1

23

On October 23, 2014, plaintiffs filed this action against DHCS and then-DHCS Director

24 Douglas. (See Dkt. 4, Complaint). Plaintiffs filed a First Amended Complaint on January 29, 2015

25 (Dkt. 26, “FAC”) and the operative Second Amended Complaint on July 7, 2015. (Dkt. 70, “SAC”).

26

27 1 Because the parties are familiar with the facts of this case, the court recounts only the facts
28 relevant to the instant Motions.

Case 2:14-cv-08013-FMO-AGR Document 368 Filed 05/30/19 Page 2 of 19 Page ID #:35090

1 In the SAC, plaintiffs assert three claims against defendants for violations of: (1) the Americans

2 with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq.; (2) the Rehabilitation Act, 29 U.S.C. §§

3 701, et seq.; and (3) California Government Code §§ 11135 and 11139. (See id. at ¶¶ 124-153).

4 Among other things, the SAC seeks a permanent injunction, and a court order “requiring

5 Defendants to . . . [a]uthorize Medi-Cal funded services for Plaintiffs through the Nursing

6 Facility/Acute Hospital Waiver [“NF/AH Waiver”] or other appropriate Home and Community-Based

7 Services Waivers . . . to enable them to receive medically necessary services commensurate with

8 their needs [and to] [a]mend their policies and procedures consistent with the injunction above,

9 and to require that Nursing Facility/Acute Hospital Waiver participants be provided with medically

10 necessary Medi-Cal in-home services, commensurate with their assessed needs, and as identified

11 by their treating physicians, consistent with federal cost neutrality requirements[;]” along with costs

12 and attorney’s fees. (Dkt. 70, SAC at § IX).

13

On January 12, 2017, defendants filed an Ex Parte Application [to] Dismiss[] the SAC as

14 Moot (Dkt. 343, “Ex Parte Application”), asserting that “[t]he NF/AH Waiver was amended in

15 November 2016 to delete the complained of cost limitations and to allow approval of waiver

16 services based on medical necessity[,]” (Dkt. 343-1, Memorandum of Points and Authorities in

17 Support of Ex Parte Application (“Ex Parte Memo”) at 1). According to defendants, “because

18 Plaintiffs have already received all of the requested relief[,]” the case should be dismissed. (Dkt.

19 343, Ex Parte Application at 2). The court denied the Ex Parte Application, (see Dkt. 345, Court’s

20 Order of January 16, 2018), and the parties filed a stipulation to dismiss the case on February 7,

21 2018. (See Dkt. 346, Notice of Voluntary Dismissal). The court held a status conference on

22 February 22, 2018, and ordered the parties to revise the stipulation or submit supplemental

23 briefing in light of the fact that Thomas has a guardian ad litem. (See Dkt. 350, Court’s Order of

24 February 22, 2019). The parties were unable to agree on a revised stipulation. As a result,

25 plaintiffs filed a request for voluntary dismissal without prejudice on March 14, 2018. (See Dkt.

26 352, Petition for Dismissal without Prejudice []).

27 / / /

28

2

Case 2:14-cv-08013-FMO-AGR Document 368 Filed 05/30/19 Page 3 of 19 Page ID #:35091

1

DISCUSSION

2

State law applies to the right to recover attorney’s fees for state law claims in a federal court

3 action, even when there is a federal corollary. See Indep. Living Ctr. of S. Cal. v. Kent, 909 F.3d

4 272, 282-83 (9th Cir. 2018) (“Because the § 1085 Write is a state law cause of action, we look to

5 California law to determine whether attorneys’ fees are available to Appellants under § 1021.5 of

6 the California Code of Civil Procedure"); Bass v. First Pac. Networks, Inc., 219 F.3d 1052, 1055

7 n. 2 (9th Cir. 2000) (“[A] federal court exercising supplemental jurisdiction over state law claims

8 is bound to apply the law of the forum state to the same extent as if it were exercising its diversity

9 jurisdiction.”); Egelhoff v. Pac. Lightwave, 2013 WL 12125913, *1 (C.D. Cal. 2013) (“When

10 exercising supplemental jurisdiction over state law claims, federal courts must determine

11 attorneys’ fees by applying state law.”) (footnote omitted); see, e.g., Parks v. Eastwood Ins.

12 Servs., Inc., 2005 WL 6007834,*2-3 (C.D. Cal. 2005) (awarding fees where the plaintiffs’ state

13 unfair competition claims derived from their federal Fair Labor Standards Act claim), aff’d in

14 relevant part, 240 F.Appx. 172, 175 (9th Cir. 2007). Under California law, the “general rule” is that

15 “parties in litigation pay their own attorney’s fees.” Friends of Spring St. v. Nevada City, 33

16 Cal.App.5th 1092, 1107 (2019); see Kirby v. Immoos Fire Prot., Inc., 53 Cal.4th 1244, 1248 (2012)

17 (“In general, [California law allows] a prevailing party [to] recover attorney’s fees when a statute

18 or an agreement of the parties provides for fee shifting.”). However, California Code of Civil

19 Procedure § 1021.5 (“§ 1021.5”) “is an exception to that rule. Derived from the judicially crafted

20 private attorney general doctrine, section 1021.5 is aimed at encouraging litigants to pursue

21 meritorious public interest litigation vindicating important rights and benefitting a broad swath of

22 citizens, and it achieves this aim by compensating successful litigants with an award of attorney’s

23 fees.” Friends of Spring St., 33 Cal.App.5th at 1107 (internal quotation marks and internal

24 brackets omitted).

25

Section 1021.5 “can be divided in the following separate elements. A . . . court may award

26 attorney fees to (1) a successful party in any action (2) that has resulted in the enforcement of an

27 important right affecting the public interest if (3) a significant benefit has been conferred on the

28 general public or a large class of persons, (4) private enforcement is necessary because no public

3

Case 2:14-cv-08013-FMO-AGR Document 368 Filed 05/30/19 Page 4 of 19 Page ID #:35092

1 entity or official pursued enforcement or litigation, (5) the financial burden of private enforcement

2 is such as to make a fee award appropriate, and (6) in the interests of justice the fees should not

3 be paid out of the recovery.” People v. Investco Mgmt. & Dev. LLC, 22 Cal.App.5th 443, 456

4 (2018) (“Investco”) (internal quotation marks omitted); see In re Conservatorship of Whitley, 50

5 Cal.4th 1206, 1214 (2010) (“Whitley”).

6

Here, defendants do not dispute the factors relating to the necessity and financial burden

7 of private enforcement. (See, generally, Dkt. 360, Defendants’ Opposition[] (“Defs’ Opp.”)). Also,

8 whether the fees should “be paid out of the recovery, if any[,]” Cal Code Civ. P. § 1021.5, is not

9 at issue here, as plaintiffs did not seek monetary recovery in this lawsuit. (See, generally, Dkt. 70,

10 SAC); Charlebois v. Angels Baseball LP, 993 F.Supp.2d 1109, 1114 (C.D. Cal. 2012) (“[B]ecause

11 this action was for injunctive relief alone, no fees can be paid out of the recovery.”). Thus, only

12 the first three factors are at issue.

13 I. SUCCESSFUL PARTY.

14

The “critical fact” in determining whether a party was “successful” under § 1021.5 “is the

15 impact of the action, not the manner of its resolution.” Graham v. DaimlerChrysler Corp., 34

16 Cal.4th 553, 566 (2005); see Henderson v. J.M. Smucker Co., 2013 WL 3146774, *4 (C.D. Cal.

17 2013). “Under this broad, pragmatic view[,] . . . a plaintiff need not obtain a judgment in its favor

18 to be a successful party. . . . Rather, a plaintiff is a successful party whenever it obtains the relief

19 sought in its lawsuit, regardless of whether that relief is obtained through a voluntary change in

20 the defendant’s conduct, through a settlement, or otherwise.” Hogar v. Cmty. Dev. Comm. of the

21 City of Escondido, 157 Cal.App.4th 1358, 1365 (2007) (internal quotation marks omitted);

22 Investco, 22 Cal.App.5th at 458 (“To determine whether a party is ‘successful,’ courts look at the

23 outcome the parties sought in commencing the action, the situation before the party commenced

24 the suit, and the situation today.”). To “obtain attorney fees without . . . a judicially recognized

25 change in the legal relationship between the parties, a plaintiff must establish that (1) the lawsuit

26 was a catalyst motivating the defendants to provide the primary relief sought; (2) that the lawsuit

27 had merit and achieved its catalytic effect by threat of victory, not by dint of nuisance and threat

28 of expense . . . and, (3) that the plaintiffs reasonably attempted to settle the litigation prior to filing

4

Case 2:14-cv-08013-FMO-AGR Document 368 Filed 05/30/19 Page 5 of 19 Page ID #:35093

1 the lawsuit.” Tipton-Whittingham v. City of Los Angeles, 34 Cal.4th 604, 608 (2004). The catalyst

2 theory exists to deter defendants from “litigat[ing] tenaciously, then avoid[ing] paying [plaintiffs’

3 counsel’s] fees by voluntarily providing relief before a court order is entered.” Graham, 34 Cal.4th

4 at 574.

5

A. Whether Suit Was a Catalyst.

6

“To be a catalyst, the lawsuit must have been ‘a substantial causal factor’ contributing to

7 Defendant’s conduct, though the lawsuit need not be the only cause of Defendant’s conduct.”

8 Henderson, 2013 WL 3146774, at *4 (quoting Graham, 34 Cal.4th at 573). “A causal connection

9 between the lawsuit and the result will be found if the defendant’s voluntary action was induced

10 by the plaintiff’s legal action . . . or when the plaintiff’s action was a material factor or contributed

11 in a significant way to the result achieved.” Cal. Common Cause v. Duffy, 200 Cal.App.3d 730,

12 743 (1987) (internal quotations and citations omitted). “[T]he chronology of events may raise an

13 inference that the litigation was the catalyst for the relief[.]” Hogar, 157 Cal.App.4th at 1366; see

14 Sablan v. Dep’t of Fin., 856 F.2d 1317, 1326 (9th Cir. 1988) (“Clues to the provocative effects of

15 the plaintiffs’ legal efforts are often best gleaned from the chronology of events[.]”) (internal

16 quotation marks omitted).

17

Defendants argue that plaintiffs’ lawsuit was not the catalyst because “plaintiffs failed to

18 obtain the actual relief requested in the operative SAC[,]” (Dkt. 360, Defs’ Opp. at 15; id. at 17),

19 and because defendants “had already decided to amend the NF/AH Waiver to remove individual

20 cost limits prior to the lawsuit being filed[,]” (id. at 4), “based on input received from all

21 stakeholders[.]” (Id. at 1). According to defendants, “[t]he lawsuit was not a consideration, let

22 alone a substantial factor, for removing individual cost limits” in 2017. (Id. at 1). The court is not

23 persuaded.

24

As a preliminary matter, defendants’ argument that plaintiffs failed to achieve their primary

25 goals is not well-taken. Defendants previously asserted in a filing before this court that “Plaintiffs

26 have already received all of the requested relief.” (Dkt. 343, Ex Parte Application at 2). Given

27 defendants’ previous assertion that plaintiffs received all of their requested relief, defendants

28 cannot now directly contradict their own position. See, e.g., Hamilton v. State Farm Fire & Cas.

5

Case 2:14-cv-08013-FMO-AGR Document 368 Filed 05/30/19 Page 6 of 19 Page ID #:35094

1 Co., 270 F.3d 778, 782 (9th Cir. 2001) (“Judicial estoppel is an equitable doctrine that precludes

2 a party from gaining an advantage by asserting one position, and then later seeking an advantage

3 by taking a clearly inconsistent position.”). In any event, as defendants acknowledge, plaintiffs

4 obtained the relief they sought in the instant action when defendants eliminated the individual cost

5 limits in the renewed Waiver program, shifted to authorizing Waiver services based on medical

6 necessity, and formalized their policies and procedures regarding these changes. (See Dkt. 343-

7 1, Ex Parte Memo at 1, 3, 8-10 (“Plaintiffs may request and receive all medically necessary waiver

8 services as covered under the terms of the Waiver, without any application of cost limits.”); Dkt.

9 360, Defs’ Opp. at 15-17 (acknowledging that plaintiffs’ SAC sought an end to “arbitrary NF/AH

10 Waiver cost caps” and the provision of “medically necessary Medi-Cal in home services” for

11 Waiver participants “commensurate with their assessed needs, and as identified by their treating

12 physicians, consistent with federal cost neutrality requirements”)).

13

Defendants admitted in their July 2015 Answer to plaintiffs’ SAC that the NF/AH Waiver was

14 subject to cost limitations, (Dkt. 71, Answer at ¶ 6) (“admit[ting] that the allowable Medi-Cal costs

15 for in-home services for an individual are subject to a limitation for each available level of care, as

16 specified in the applicable NF/AH Waiver”), and two and a half years later – in January 2018 –

17 conceded that plaintiffs obtained all of the primary relief they were seeking in this action, i.e., “the

18 individual cost limits [were] removed from the NF/AH Waiver.” (Dkt. 343-1, Ex Parte Memo at 3;

19 Dkt. 343, Ex Parte Application at 2). Under the circumstances, the chronology of events

20 establishes a rebuttable presumption that plaintiffs’ action was the catalyst for the changes in the 21 waiver program made by defendants.2 See Hogar, 157 Cal.App.4th at 1366-67 (“When, after

22 litigation is initiated, a defendant has voluntarily provided the relief a plaintiff is seeking, the

23 chronology of events may raise an inference that the litigation was the catalyst for the relief.”); In

24
2 The fact that plaintiffs achieved their primary goals – even assuming they did not achieve all 25 of their requested relief – is sufficient to render plaintiffs a successful party under § 1021.5. See, 26 e.g., Hogar, 157 Cal.App.4th at 1363 (affirming fee award where trial court found that “although
[plaintiff] did not achieve all of its goals, it was successful in attaining its primary goals”); 27 Tipton-Whittingham, 34 Cal.4th at 608 (noting that catalyst theory “does not require a judicially
recognized change in the legal relationship between the parties as a prerequisite for obtaining 28 attorney fees under Code of Civil Procedure section 1021.5”) (internal quotation marks omitted).

6

Case 2:14-cv-08013-FMO-AGR Document 368 Filed 05/30/19 Page 7 of 19 Page ID #:35095

1 re Taco Bell Wage & Hour Actions, 222 F.Supp.3d 813, 825 (E.D. Cal. 2016) (“[W]ithin several

2 months of this lawsuit being filed [defendant] changed its . . . policy . . . to comply with California

3 law. The timing of the change . . . is circumstantial evidence from which the Court finds that this

4 lawsuit was the reason that [defendant] changed its . . . policy.”); (see also Dkt. 355, Pls’ Motion

5 at 12-16) (outlining chronology of events in detail).

6

Because defendants implemented plaintiffs’ primary goals after litigation commenced, the

7 burden shifts to defendants to rebut the inference of causation by introducing “convincing

8 contemporaneous evidence[,]” MacDonald v. Ford Motor Co., 142 F.Supp.3d 884, 894 (N.D. Cal.

9 2015), that they had a pre-existing “concrete project or plan” to implement the changes to the

10 Waiver program before this litigation began. See Henderson, 2013 WL 3146774 at *6.

11 Defendants contend that “the Department had already decided to amend the NF/AH Waiver to

12 remove individual cost limits prior to the lawsuit being filed,” (Dkt. 360, Defs’ Opp. at 4; see Dkt.

13 354, Defs’ Motion at 4-10), citing the following evidence: (1) a September 2014 email exchange

14 between Deborah Doctor (“Doctor”) and DHCS; (2) a September 2014 email exchange between

15 John Shen, then-Division Chief for DHCS’s Long Term Care Division, and the Centers for

16 Medicare and Medicaid Services (“CMS”); and (3) statements from Jennifer Chmura (“Chmura”),

17 DHCS’s in-house attorney, and Sarah Brooks (“Brooks”), DHCS’s Deputy Director, Health Care

18 Delivery Systems. (See Dkt. 360, Defs’ Opp. at 6-7). Putting aside the fact that defendants

19 previously conceded that plaintiffs obtained all the relief they requested through this lawsuit,

20 defendants’ contentions are unpersuasive.

21

With regard to the 2014 email exchanges, they are irrelevant to the issues in this litigation.

22 Plaintiffs’ claims in this action challenged the denial of and/or reduction in medically necessary

23 Waiver services based on the cost limits for individuals receiving services. (See Dkt. 70, SAC at

24 ¶¶ 130-133, 142-144, 150-152, 158-19; see also Dkt. 355-2, Exhibit (“Exh.”) D, DHCS Decision

25 on Thomas’s claim; id., Exh. G, DHCS Notice of Action re: Benison; id., Exh. K, IHO Summary for

26 Palomares). The 2014 email exchanges, on the other hand, relate to problems with the cost cap

27 raised by the FLSA, which affected hourly compensation for home care providers due to payment

28 of overtime, without any corresponding increase in the hours of authorized services for Waiver

7

Case 2:14-cv-08013-FMO-AGR Document 368 Filed 05/30/19 Page 8 of 19 Page ID #:35096

1 recipients. (See Dkt. 355-3, Declaration of Elissa Gershon in Support of Plaintiffs’ Motion []

2 (“Gershon Decl.”), Exh. P, Deposition of Rebecca Schupp (“Schupp Depo.”), volume (“v.”) 1 at

3 P155-P157; Dkt. 359-1, Declaration of Elissa Gershon in Opposition to Defendants’ Motion []

4 (“Gershon Opp. Decl.”) at ¶ 14; Dkt. 361, Declaration of Jennifer Chmura (“Chmura Decl.”), Exh.

5 A, September 17, 2014, Email from John Shen to Deborah Doctor (stating that DHCS had

6 scheduled a conference call to “(1) assure [stakeholders] that overtime cost (or change in local

7 IHSS wages) would not be a basis to change [NF/AH Waiver participants’] care plan and services,

8 even if the cost of their services is beyond the cost cap; and (2) to propose DHCS working with

9 waiver participants and their families on managing the overtime so that they would not trigger

10 provisions in SB855 that would disrupt their . . . provider network”)). Moreover, the changes to

11 FLSA had no effect on licensed nursing services, which are the primary Waiver services plaintiffs

12 Thomas and Benison receive. (See Dkt. 355-3, Exh. P, Schupp Depo. v.1 at P-166 &

13 P-155-P-157). Thus, defendants’ proposal to address FLSA cost cap issues, and the 2014 emails

14 discussing those issues, had nothing to do with this case. But even if those discussions were

15 relevant to plaintiffs’ claims, they still would not rebut the presumption that plaintiffs’ suit was a

16 material factor leading to the removal of the cost limits because, as DHCS’s Rule 30(b)(6)

17 designee and then-Chief of the Long-Term Care Division Rebecca Schupp noted, DHCS

18 abandoned these discussions with CMS on January 20, 2015, before plaintiffs even filed the FAC.

19 (See Dkt. 355-1, Gershon Decl. at ¶¶ 21-22; Dkt. 355-3, Exh. O, Schupp Depo. v.2 at O-101-

20 O-102, O-112-O-114, O-117-O-118, O-120, O-121-O-122; Dkt. 26, FAC; Dkt. 360-3, Declaration

21 of Sarah Brooks (“Brooks Decl.”) at ¶¶ 5-7).

22

Further, Chmura’s statement that “[t]he Waiver amendment process that the Department

23 started in 2014 continued into 2016[,]” (Dkt. 361, Chmura Decl. at ¶ 4), and Brooks’s statement

24 that “the Department already had begun the process of converting from individual cost limits” prior

25 to the litigation, (see Dkt. 360-3, Brooks Decl. at ¶ 13), are insufficient to overcome the extensive

26 evidence that plaintiffs’ action was the catalyst for the Waiver changes. As an initial matter,

27 defendants offer no evidence to support the self-serving, conclusory statements in the two

28 declarations. (See, generally, Dkt. 360, Defs’ Opp.). With respect to Brooks, she testified during

8

Case 2:14-cv-08013-FMO-AGR Document 368 Filed 05/30/19 Page 9 of 19 Page ID #:35097

1 her deposition that she did not assume responsibility for any aspect of the Waiver program until

2 June 2015. (See Dkt. 364-1, Declaration of Elissa Gershon in Support of Plaintiffs’ Reply []

3 (“Gershon Reply Decl.”), Exh. C, Deposition of Sarah Brooks (“Brooks Depo.”) at C-35-C-36). In

4 other words, there is little, if any, foundation for Brooks’s assertions, (Dkt. 360-3, Brooks Decl. at

5 ¶¶ 4 & 9), regarding the DHCS’s motivations. Under these circumstances, particularly in light of

6 the extensive contrary evidence, the court “[is] not required to believe a staff member’s

7 second-hand report” about the reason for the change. See Hogar, 157 Cal.App.4th at 1367;

8 MacDonald, 142 F.Supp.3d at 893 (Defendant “has not offered declarations from the final decision

9 makers who actually recommended and approved the 2014 recall. What role this lawsuit played

10 in their decisions is unknown.”).

11

Finally, defendants’ argument ignores evidence – including statements made and

12 documents produced by defendants themselves – that undermines their position and the credibility

13 of the evidence they rely upon. For example, defendants admitted to CMS in writing that “[t]here

14 were no changes to the waiver application as a result of the public input” it had received. (See

15 Dkt. 355-1, Gershon Decl. at ¶ 37; Dkt. 355-4, Exh. V, HCBA Waiver at V-343). Also, despite the

16 ongoing Waiver Renewal process, defendants did not publicly raise the topic of cost limits until 17 April 20, 20163 – nearly a year and a half after this lawsuit was filed – and even then they made

18 no commitments about whether or how they would address the cost limits in the Waiver Renewal.

19 (See Dkt. 355-1, Gershon Decl. at ¶¶ 26-33; Dkt. 355-3, Exh. R, NF/AH Waiver Renewal Technical

20 Workgroup Meeting #3 [] Minutes, April 20, 2016, at R-226 & R-232; id., Exh. S, NF/AH Waiver

21 Renewal Technical Workgroup Meeting #3 Powerpoint Presentation, April 20, 2016, at S-286,

22 S-292, S-300, S-302 (suggesting that comprehensive care management can ensure cost

23 neutrality); id., Exh. T, NF/AH Waiver Renewal Technical Workgroup Feedback vs.

24 Recommendations at T-317-T-318). Finally, and very telling of defendants’ true motives in this

25 case, is DHCS’s refusal to support proposed legislation in 2015 that would have eliminated the

26

27

3 Defendants first revealed their intention to seek an amendment to the Waiver to the court

on March 30, 2016, in their Reply in support of their Motion to Dismiss and in their supplemental

28 memorandum in opposition to plaintiffs’ Motion for Summary Judgment. (See Dkt. 117, Reply in

Support of Motion to Dismiss [] at 1-3; Dkt. 118, Memorandum in Opposition to Motion to Dismiss).

9

Case 2:14-cv-08013-FMO-AGR Document 368 Filed 05/30/19 Page 10 of 19 Page ID #:35098

1 individual cost limits. (See Dkt. 355-1, Gershon Dec. ¶ 50; Dkt. 355-6, Exhibit BB, California State

2 Assembly Bill 1518 Documents). Defendants’ claim that they intended to remove the cost limits

3 as early 2014, (see Dkt. 360, Defs’ Opp. at 4-8), is belied by their refusal to support the 2015

4 legislation.

5

Even assuming defendants had not conceded that plaintiffs obtained all of the primary relief

6 they sought, and notwithstanding defendants’ contentions that they intended to remove the cost

7 limits as early as 2014, the fact remains that defendants did not eliminate the cost limits until this

8 litigation was well underway. Defendants’ first unqualified statement that they were modifying the

9 cost neutrality approach was on June 10, 2016, shortly after this court denied their first Motion to

10 Dismiss. (See Dkt. 355-3, Exh. U, DHCS NF/AH Waiver Renewal Proposal, June 10, 2016, at U-

11 329) (“The State is proposing to change from an individual cost limit to an individual cost limit that

12 calculates cost neutrality in the aggregate across all Waiver participants.”); Dkt. 139, Court’s Order

13 of April 27, 2016 (“Order Re: MTD”)). Indeed, DHCS’s own budget documents do not reference

14 a removal of cost limits until November 2016; the cost estimates in November 2015 and May 2016

15 simply describe the fiscal impact of the impending Waiver Renewal as “indeterminate.” (Dkt. 355-

16 1, Gershon Decl. at ¶¶ 51-55; Dkt. 355-6, Exhibits CC-FF); see Henderson, 2013 WL 3146774 at

17 *5. (“Evidence of a general goal [to improve behavior] does not rebut” the inference that the

18 litigation was a catalyst.).

19

In short, the evidence proffered by defendants is insufficient to “rebut the inference from

20 the chronology of events and show that Plaintiffs’ lawsuit did not catalyze” DHCS’s decision to

21 eliminate the Waiver cost limits. See MacDonald, 142 F.Supp.3d at 894; Hogar, 157 Cal.App.4th

22 at 1367 (“Given this chronology of events, the trial court could reasonably conclude that overall

23 [plaintiff’s] litigation was successful.”).

24

B. Whether Plaintiffs’ Lawsuit Was “Frivolous, Unreasonable, or Groundless.”

25

Under California’s catalyst doctrine, the court must determine “that the lawsuit is not

26 frivolous, unreasonable or groundless[.]” Graham, 34 Cal.4th at 575 (internal quotation marks

27 omitted). A plaintiff must also show “that the lawsuit had merit and achieved its catalytic effect by

28 threat of victory, not by dint of nuisance and threat of expense[.]” Tipton-Whittingham, 34 Cal.4th

10

Case 2:14-cv-08013-FMO-AGR Document 368 Filed 05/30/19 Page 11 of 19 Page ID #:35099

1 at 608. While the court should review the factual record, the determination is “not a final decision

2 on the merits but a determination at a minimum that the questions of fact and law are grave and

3 difficult.” Graham, 34 Cal.4th at 575-76 (internal quotation marks omitted).

4

Defendants contend that plaintiffs’ suit “had no merit” because plaintiffs “have not been” at

5 serious risk of institutionalization, (Dkt. 360, Defs’ Opp. at 18-21), and because the Waiver

6 program was “operating effectively” prior to the litigation. (Id. at 22-23). Defendants’ contentions

7 are utterly meritless and border on the frivolous.

8

As an initial matter, defendants never filed a motion for summary judgment in this case.

9 (See, generally, Dkt.). If plaintiffs’ case truly had no merit, then defendants should have done so.

10 What’s more, if the Waiver program was “operating effectively” prior to the litigation, (Dkt. 360,

11 Defs’ Opp. at 22-23), then it was incumbent upon defendants to explain why they ultimately

12 changed the Waiver program to remove the cost limits. See Graham, 34 Cal.4th at 573 (“[T]he

13 defendant in such cases knows better than anyone why it made the decision that granted the

14 plaintiff the relief sought, and the defendant is in the best position to either concede that the

15 plaintiff was a catalyst or to document why the plaintiff was not[.]”). This they did not do. (See,

16 generally, Dkt. 360, Defs’ Opp.).

17

In addition, defendants’ argument that plaintiffs were not at serious risk of institutionalization

18 misses the mark as it does not directly address the gravamen of plaintiffs’ lawsuit, which is that

19 defendants arbitrarily set individual cost limits for medically necessary services available through

20 the Waiver program and that those cost limits were significantly lower than the average cost for

21 providing comparable care in an institution. (See Dkt. 70, SAC at ¶¶ 5-9 & 43-48). Rather than

22 addressing the merits of the individual cost limits, defendants attempt to re-frame the issue as

23 whether plaintiffs were ever at a serious risk of institutionalization. (See Dkt. 360, Defs’ Opp. at

24 18-21). But defendants’ re-framing of the issue simply begs the question with respect to the

25 legality of the individual cost limits.

26

In any event, even assuming defendants’ argument directly addressed what is at issue in

27 this case, the argument is without merit. To support their argument, defendants cite a number of

28 their own facts from the parties’ Statement of Uncontroverted Facts (Dkt. 195, “SUF”) relating to

11

Case 2:14-cv-08013-FMO-AGR Document 368 Filed 05/30/19 Page 12 of 19 Page ID #:35100

1 plaintiffs’ motion for summary judgment. (See Dkt. 360, Defs’ Opp. 18-21). However, many of the

2 facts were disputed by plaintiffs during the summary judgment proceedings, (see, e.g., Dkt. 195,

3 SUF at D43, D47, D48, D61, D66, D67, D68, D74), and defendants mishcharacterize many of the

4 facts and underlying evidence. (See, e.g., Dkt. 360, Defs’ Opp. at 18) (citing Dkt. 195, SUF at D43

5 as evidence that “Mr. Thomas had been well cared for and had not been at any serious risk of

6 institutionalization during the time that he had been enrolled in the NF/AH Waiver” whereas D43,

7 which was disputed by plaintiffs, actually states, “Since returning home, Mr. Thomas has been well

8 cared for.”). In addition, defendants mischaracterize this Court’s Order Re: Plaintiffs’ Motion for

9 Summary Judgment, (see Dkt. 360, Defs’ Opp. at 21), when they assert that the court “concluded

10 that the Defendants had offered evidence showing that plaintiffs have been well cared for and

11 have remained safely in their homes at all times while receiving their currently authorized

12 services.” (Id. (internal alterations and quotation marks omitted); see Dkt. 322, Court’s Order of

13 June 5, 2017 (“MSJ Order”) at 9). Contrary to defendants’ assertion, the court did not accept

14 defendants’ claim that plaintiffs “face no risk of institutionalization” based on the services DHCS

15 authorized a year after this litigation commenced. (See Dkt. 322, MSJ Order at 9) (quoting

16 defendants’ argument). Rather, the court noted that the facts in the record – including that DHCS

17 could rescind its authorization of services over the cost limits, that it had refused to commit to

18 providing ongoing services, and that it lacked written policies or procedures for authorizing

19 exceptions – “tend to show that plaintiffs are at risk of institutionalization as a result of the cost 20 limits imposed by the Waiver program.”4 (Id. at 9). Moreover, it’s worth noting that defendants’

21 own expert stated that plaintiffs would be at “serious” or “high risk of institutionalization without the

22 services they were authorized that exceeded the cost limits.” (Dkt. 195, SUF at P186 & P189).

23

Finally, defendants’ argument that the Waiver was “operating effectively[,]” (Dkt. 360, Defs’

24 Opp. at 18-23), is irrelevant given that the basis of plaintiffs’ request for fees is the change in the

25 4 Defendants also misrepresented the MSJ Order in connection with their argument that they
26 did not violate the ADA’s integration mandate. (See Dkt. 360, Defs’ Opp. at 23). In making their 27 argument, defendants quote from the MSJ Order, (see id.), but conspicuously omit the court’s
concluding sentence, which expresses the court’s “serious concerns about whether the Waiver 28 program comports with the ADA’s integration mandate[.]” (Dkt. 322, MSJ Order at 10). In other
words, the court did not find or otherwise agree with defendants that plaintiffs’ case had no merit.

12

Case 2:14-cv-08013-FMO-AGR Document 368 Filed 05/30/19 Page 13 of 19 Page ID #:35101

1 Waiver program that eliminated the cost limits. Again, if the Waiver program had been operating

2 effectively, then defendants should have filed a motion for summary judgment. Instead, plaintiffs

3 filed a motion for a summary judgment because they “believed so strongly in the merits of their

4 legal claims[.]” (Dkt. 364, Reply at 11). In denying plaintiffs’ motion for summary judgment, the

5 court expressed “serious concerns about whether the Waiver program comports with the ADA’s

6 integration mandate,” and concluded that there were “genuine disputes of material fact” such that

7 summary judgment was not appropriate at that time. (See Dkt. 322, Court’s MSJ Order at 10).

8 In short, the court finds that “the questions of law or fact [in this case] are grave and difficult[,]” and 9 that plaintiffs’ lawsuit was “not frivolous, unreasonable or groundless[.]”5 Graham, 34 Cal.4th at

10 575 (internal quotation marks omitted).

11

C. Attempted Pre-litigation Settlement.

12

The final prong of the catalyst analysis requires plaintiffs to show that they “reasonably

13 attempted to settle the litigation prior to filing the lawsuit.” Hogar, 157 Cal.App.4th at 1365

14 (internal quotation marks omitted). The bar is not high: “[l]engthy prelitigation negotiations are not

15 required, nor is it necessary that the settlement demand be made by counsel, but a plaintiff must

16 at least notify the defendant of its grievances and proposed remedies and give the defendant the

17 opportunity to meet its demands within a reasonable time.” Graham, 34 Cal.4th at 577.

18

Defendants assert that plaintiffs did not reasonably attempt to settle, contending that

19 plaintiffs sent only one letter prior to filing suit, and that neither the letter nor two subsequent

20 emails to DHCS “contain[ed] sufficient information to support a claim for attorneys’ fees.” (Dkt.

21 360, Defs’ Opp. at 23).

22

23

5 Indeed, it appears that defendants’ motion to recover fees and costs may be sanctionable

on the grounds that it is frivolous and unreasonably and vexatiously multiplied the proceedings.

24 See Fed. R. Civ. P. 11; 28 U.S.C. § 1927 (“Any attorney or other person admitted to conduct

cases in any court of the United States or any Territory thereof who so multiplies the proceedings

25 in any case unreasonably and vexatiously may be required by the court to satisfy personally the

excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”); Fink 26 v. Gomez, 239 F.3d 989, 994 (9th Cir. 2001) (“Sanctions are available for a variety of types of

27 willful actions, including recklessness when combined with an additional factor such as frivolousness, harassment, or an improper purpose.”). However, the court need not address this

28 issue at this time because plaintiffs will be entitled to fees for opposing defendants’ motion for attorney’s fees.

13

Case 2:14-cv-08013-FMO-AGR Document 368 Filed 05/30/19 Page 14 of 19 Page ID #:35102

1

Defendants’ assertions are unpersuasive and ignore the historical context preceding the

2 filing of the instant action. See Investco, 22 Cal.App.5th at 458 (“To determine whether a party

3 is ‘successful,’ courts look at the outcomes the parties sought in commencing the action, the

4 situation before the party commenced the suit, and the situation today.”). Public interest and

5 community organizations such as those representing plaintiffs in this matter usually attempt to

6 address legal, social and economic concerns in a comprehensive manner that entails, at a

7 minimum, both policy and legal advocacy. Given the costs and resources required to litigate a

8 case and the uncertainty of litigation, these organizations often attempt to resolve the problem

9 informally or via the policy route by seeking to have the organization or governmental entity modify

10 and/or change its policies and practices, either through the entity’s internal administrative

11 procedures and/or through legislation. The organizations representing plaintiffs in this case

12 attempted to resolve the issues in this lawsuit informally and via the policy route for at least eight

13 years prior to filing this lawsuit. (See Dkt. 355, Pls’ Motion at 13-14). In spite of stakeholder

14 advocacy for at least eight years, and despite the fact that it apparently recognized the

15 seriousness of the problem, DHCS did not increase or eliminate the cost limits. (See Dkt. 355-1,

16 Gershon Decl. at ¶¶ 56-57; Dkt. 355-6, Exh. GG, Plaintiffs’ Counsel’s June 29, 2006 and

17 November 14, 2006 Letters to DHCS Re: Waiver Renewal Application; id., Exh. HH, Summary of

18 Public Comments Re: [] Draft Waiver Application - August 2, 2006; id., Exh. II, Plaintiffs’ Counsel

19 Waiver Renewal Process Recommendations, May 10, 2011; id., Exh. JJ, Long-Term Care

20 Coordinating Council Position Statement Re: Waiver Renewal Process - January 8, 2007; id., Exh.

21 KK, Plaintiffs’ Counsel NF/AH Waiver Problems and Solutions - May 12, 2014; id., Exh. EE, May

22 2016 Estimate at EE-836). That it took so many years for DHCS to change the Waiver program

23 simply reflects that the organizations representing plaintiffs have the patience of Job, not that 24 defendants were considering modifying the Waiver program.6 It was not until three years into this

25

26

6 Defendants’ argument that plaintiffs did not “provide the Department with reasonable time

27 to resolve the issues” because“[a] change to the NF/AH Waiver such as removal of individual cost limits can only occur through the California legislature appropriating funds to cover the state

28 funded portion of those costs[,]” (Dkt. 360, Defs’ Opp. at 24-25), is disingenuous. If eight years

of advocacy with DHCS for removal of cost limits on the Waivers – through two waiver renewal

14

Case 2:14-cv-08013-FMO-AGR Document 368 Filed 05/30/19 Page 15 of 19 Page ID #:35103

1 litigation that defendants eliminated the individual cost limits, authorized services based on

2 medical necessity, and formalized their policies. (See Dkt. 343-1, Ex Parte Memo at 1) (stating

3 that “NF/AH Waiver was amended in November 2016” to remove “cost limitations and to allow

4 approval of waiver services based on medical necessity”).

5

In Cates v. Chiang, 213 Cal.App.4th 791 (2013), the California court of appeal held that the

6 “rule [on prelitigation settlement efforts] should not be applied blindly without any consideration

7 of whether the demand would have made any difference in the need for the lawsuit and whether

8 the plaintiff’s motivations were directed toward seeking the relief demanded, as opposed to the

9 recovery of attorney fees.” Id. at 817. Where, as here, plaintiffs have attempted over the course

10 of several years via various policy and advocacy efforts to obtain the relief they seek in the

11 subsequent lawsuit, (see Dkt. 355-1, Gershon Decl. at ¶¶ 56-57), a court can presume that

12 sufficient prelitigation efforts have been made which excuse plaintiffs’ counsel from making any

13 further prelitigation efforts on the ground that any further attempts to settle would be futile. See

14 Cates, 213 Cal.App.4th at 814-17; Henderson, 2013 WL 3146774, at *10 (holding that insufficient

15 prelitigation attempt at settlement may not preclude attorney’s fees under § 1021.5 if such demand

16 would have been futile).

17

In any event, the record contains more than sufficient evidence that plaintiffs “reasonably

18 attempted to settle the litigation prior to filing the lawsuit.” Hogar, 157 Cal.App.4th at 1365

19 (internal quotation marks omitted). On September 22, 2014, plaintiffs’ counsel sent a demand

20 letter to DHCS that expressed “grave concern” about the effects of the Waiver cost caps on

21 plaintiffs, and threatened to file suit. (See Dkt. 355-1, Gershon Decl. at ¶ 2; Dkt. 355-2, Exh. A,

22 DRC Letter to Douglas, September 22, 2014, at A-2-A-4). On October 20, 2014, plaintiffs’ counsel

23

24 cycles – was not a “reasonable” amount of time according to defendants, see supra at § I.B., the
25 court questions whether any amount of time would be “reasonable” by defendants’ standards. See
Graham, 34 Cal.4th at 577 (defendants need only be put on notice of “[plaintiffs’] grievances and 26 proposed remedies” and provided with “the opportunity to meet [plaintiffs’] demands within a
27 reasonable time”). Moreover, as stated earlier, if DHCS had intended to remove cost limits, and legislative approval was required to fund the removal of the those limits, then DHCS would have
28 supported a 2015 bill that would have removed individual cost limits. (See Dkt. 355-1, Gershon Decl. at ¶ 50; id., Exh. BB, California State Assembly Bill 1518 Documents, 2015).

15

Case 2:14-cv-08013-FMO-AGR Document 368 Filed 05/30/19 Page 16 of 19 Page ID #:35104

1 followed up with an email to DHCS’s then-director Douglas that “welcom[ed] the opportunity to

2 meet with [Douglas] to resolve the issues in the case[.]” (Dkt. 355-2, Exh. B, DRC Email to

3 Douglas, October 20, 2014, at B-5). Plaintiffs’ counsel also sent a courtesy copy of the Complaint

4 to Douglas on October 20, 2014, but did not serve it, so that the parties could engage in

5 settlement discussions. (See Dkt. 355-1, Gershon Decl. at ¶ 3). For nearly two months, from

6 October 20, 2014, through December 17, 2014, the parties discussed “possible resolution to the

7 matter[,]” but defendants stopped responding to plaintiffs’ counsel, and never responded to their

8 emails dated December 1, 11, or 14, 2014. (See Dkt. 355-1, Gershon Decl. at ¶ 4; Dkt. 364-1,

9 Gershon Reply Decl. at ¶ 2). In light of the foregoing, the court finds that plaintiffs “reasonably

10 attempted to settle the case before litigation[,]” Hogar, 157 Cal.App.4th at 1365 (internal quotation

11 marks omitted), and/or that any further attempts to settle would have been futile. See Cates, 213

12 Cal.App.4th at 814-17 (affirming conclusions that “a prelitigation demand would have been futile”

13 and accordingly, plaintiff “was not barred from recovering section 1021.5 attorney fees”);

14 Henderson, 2013 WL 3146774, at *10 (holding that insufficient prelitigation attempt at settlement

15 may not preclude attorney’s fees under § 1021.5 if such demand would have been futile).

16 II. ENFORCEMENT OF AN IMPORTANT RIGHT AFFECTING THE PUBLIC INTEREST AND

17

WHETHER A SIGNIFICANT BENEFIT WAS CONFERRED ON THE GENERAL PUBLIC

18

OR A LARGE CLASS OF PERSONS.

19

With respect to the remaining two § 1021.5 factors, defendants respond to plaintiffs’

20 contentions in one paragraph, (see Dkt. 360, Defs’ Opp. at 17), asserting that “[t]here is no

21 evidence that this lawsuit forced any removal of individual cost limits”; “[p]rior to the removal of

22 individual cost limits, the Department had authorized medically necessary Waiver services for

23 approximately four hundred Waiver participants, even though their Waiver services exceeded

24 individual cost limits”; and “[t]his case was not a class action[.]” (Id.). Defendants’ assertions are

25 unpersuasive.

26

First, with respect to the “important right” element, the court, “in its discretion must

27 realistically assess the litigation and determine, from a practical perspective, whether or not the

28 action served to vindicate an important right so as to justify an attorney fee award under section

16

Case 2:14-cv-08013-FMO-AGR Document 368 Filed 05/30/19 Page 17 of 19 Page ID #:35105

1 1021.5.” Maria P. v. Riles, 43 Cal.3d 1281, 1291 (1987) (internal quotation marks omitted). In

2 determining what constitutes an important right, courts should “ascertain the strength or social

3 importance of the right involved . . . in terms of its relationship to the achievement of fundamental

4 legislative goals.” Cty. of Colusa v. Cal. Wildlife Conservation Bd., 145 Cal.App.4th 637, 652

5 (2006) (internal quotation marks omitted). Here, there is no question that plaintiffs’ action enforced

6 important rights such as the right to be free from disability discrimination and the right to medical

7 benefits. See, e.g., id. (“[T]he private attorney doctrine may find proper application in litigation

8 involving, for example, racial discrimination, the rights of mental patients, legislative

9 reapportionment and, most significantly for the instant case, environmental protection.”); Green

10 v. Obledo, 29 Cal.3d 126, 145 (1981) (“There can be no question that the proper calculation of

11 [welfare] benefits is a matter of public right[.]”); Martinez v. City of Maywood, 2009 WL 10670099,

12 *5 (C.D. Cal. 2009) (“Plaintiffs bring the present case to seek enforcement of their right to equal

13 access and protection from discrimination based on disability, which is an important right affecting

14 the public interest, from which the general public will benefit.”); Samantha C. v. State Dep’t of Dev.

15 Servs., 207 Cal.App.4th 71, 80-81 (2012) (successful litigation correcting erroneous statutory

16 interpretation of eligibility criteria for regional centers serving thousands of Californians with

17 developmental disabilities “resulted in the enforcement of an important right affecting the public

18 interest”). Thus, plaintiffs have easily met their burden to prove that an important right affecting

19 the public interest was at stake.

20

Second, the significant benefit “that will justify an attorney fee award need not represent

21 a tangible asset or a concrete gain but, in some cases, may be recognized simply from the

22 effectuation of a fundamental constitutional or statutory policy.” Investco, 22 Cal.App.5th at 465

23 (internal quotation marks omitted). Moreover, “the extent of the public benefit need not be great

24 to justify an attorney fee award.” RiverWatch v. Cty. of San Diego Dep’t of Envtl. Health, 175

25 Cal.App.4th 768, 781 (2009). In assessing this factor, the court should “determine the significance

26 of the benefit, as well as the size of the class receiving benefit, from a realistic assessment, in light

27 of all the pertinent circumstances, of the gains which have resulted in a particular case.” Investco,

28 22 Cal.App.5th at 465 (internal quotation marks omitted).

17

Case 2:14-cv-08013-FMO-AGR Document 368 Filed 05/30/19 Page 18 of 19 Page ID #:35106

1

Defendants assert that no significant benefit has been conferred on the general public or

2 a large class, because this case was not a class action. (See Dkt. 360, Defs’ Opp. at 17).

3 However, defendants cite no authority that a certified class is a prerequisite to an award of

4 attorney’s fees under § 1021.5. (See, generally, Dkt. 360, Defs’ Opp. at 17). In any event, “[a]

5 class or representative action is not necessary to establish a significant benefit.” Richard M. Pearl,

6 California Attorney Fee Awards § 3.58 (CEB March 2018) (emphasis in original). “Code of Civil

7 Procedure section 1021.5 requires that the action result in a significant benefit to the general

8 public or a large class of persons. Thus, there need not be a significant benefit to many plaintiffs,

9 but a significant benefit to many persons, whether plaintiffs or not.” Nw. Energetic Servs., LLC v.

10 Cal. Franchise Tax Bd., 159 Cal.App.4th 841, 876 (2008). Here, according to defendants’ own

11 estimates, the removal of the individual cost limits will potentially affect thousands of Waiver

12 participants. (See Dkt. 355-4, Exh. V at V-376) (Waiver serves over 7,000 individuals and by 2021

13 will serve almost 10,000). Thus, the requirement of a “large” number affected persons is satisfied.

14 See Press v. Lucky Stores, Inc., 34 Cal.3d 311, 321 (1983) (indicating that 3,000 affected

15 signatories to petitions would satisfy “large class” requirement of § 1021.5).

16

Finally, defendants’ contention that “[p]rior to the removal of individual cost limits, the

17 Department had authorized medically necessary Waiver services for approximately four hundred

18 participants, even though their Waiver services exceeded individual cost limits[,]” (Dkt. 360, Defs’

19 Opp. at 17), does not undermine the significant benefit obtained by plaintiffs. The court has

20 previously rejected defendants’ ad hoc exception process as being inadequate. (See Dkt. 322,

21 MSJ Order at 9 (the facts that DHCS “could, at any time, rescind its letters to plaintiffs authorizing

22 medically necessary services above the Waiver’s cost limits,” and that “Defendants have no

23 written policy or process for authorizing exceptions to the cost ceilings” “tend to show that plaintiffs

24 are at risk of institutionalization” in spite of the Waiver exception program) (internal quotation

25 marks omitted); see also Dkt. 112, Department of Justice Statement of Interest at 6 (indicating

26 that, despite their ad hoc exception process, “Defendants have not implement[ed] any means of

27 ensuring that individuals who need that exceptional care to avoid institutionalization actually

28 receive it”) (internal quotation marks omitted, emphasis in original); Dkt. 359-1, Gershon Opp.

18

Case 2:14-cv-08013-FMO-AGR Document 368 Filed 05/30/19 Page 19 of 19 Page ID #:35107

1 Decl. at ¶¶ 17-19 & Exh. C, Decision in Pearl Helmuth v. Jennifer Kent, March 23, 2018, at C-16-

2 C26 (despite daughter’s repeated requests for an exception, 94-year-old Waiver participant denied

3 sufficient Waiver services based on the cost limits as late as December 2016)).

4

In short, having conducted a realistic assessment of all the pertinent circumstances in this

5 case, the court readily concludes that the elimination of the cost limits conferred a significant

6 benefit for potentially thousands of people. The elimination of cost limits will ensure that Waiver

7 participants will not have to resort to litigation to secure needed services and that they will be able

8 to remain in their homes, and avoid the segregation and isolation that California Government Code

9 § 11135 seeks to avoid.

10

CONCLUSION

11

Based on the foregoing, IT IS ORDERED THAT:

12

1. Plaintiffs’ Motion for Attorney’s Fees (Document No. 355) is granted. Plaintiffs have

13 satisfied all the criteria under § 1021.5 to justify an award of attorney’s fees.

14

2. Defendants’ Motion to Recover Fees and Costs (Document No. 354) is denied.

15

3. Plaintiffs shall file their motion for attorney’s fees and costs no later than July 31, 2019.

16 The parties shall meet and confer pursuant to the Local Rules and the motion shall be noticed

17 pursuant to the Local Rules and the court’s initial Standing Order on the Central District’s website.

18 Dated this 30th day of May, 2019.

19

/s/

20

Fernando M. Olguin

United States District Judge

21

22

23

24

25

26

27

28

19


[CONTENT] October 16, 2014 | three | the California Department of Health Care Services | DHCS | the U.S. District Court | the Central District | California ||| Section II | Americans | ADA | Section 504 | the Rehabilitation Act ||| DHCS |||  ||| Disability Rights California ||| Medicaid | California | Community Based Nursing Facility/Acute Hospital Waiver Program ||| DHCS ||| January 29, 2015 | first ||| Spirit ||| July 7, 2015 | second ||| third | California ||| September 23, 2015 | Spirit ||| January 26, 2016 |||  ||| March 8, 2016 ||| March 10, 2016 ||| Fernando Olguin | April 27, 2016 |||  ||| March 29, 2016 | the United States Department of Justice | Civil Rights Division | ADA ||| DOJ | ADA | Olmstead | 527 | U.S. | 581 | 1999 ||| DOJ | Medicaid ||| DOJ | August 4, 2016 | September 16, 2016 | ADA | DHCS ||| July 18, 2016 | Olguin | August 4, 2016 due ||| Olguin ||| September 7, 2016 ||| June 5, 2017 | Court | California | California ||| 385 ||| 3d 1048 |||  ||| March 14, 2018 | March 19, 2018 |||  ||| DHCS |||  |||  ||| May 30, 2019 | Olguin ||| DHCS | thousands |||  ||| no later than July 31, 2019 ||| 2019 |||  ||| November 22, 2019 ||| Clearinghouse |||  [SUMMARY] On October 16, 2014, three individuals with significant physical disabilities requiring substantial medical care filed this lawsuit against the California Department of Health Care Services (“DHCS”) in the U.S. District Court for the Central District of California. The plaintiffs alleged that the state had violated Section II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act, which require public entities to provide services to persons with disabilities in the most integrated setting appropriate to their needs and to prevent unnecessary institutionalization. The plaintiffs sought declaratory and injunctive relief, including a temporary restraining order and preliminary injunction preventing DHCS from reducing at-home medical care and support for the plaintiffs, and a permanent injunction preventing unnecessary institutionalization in the future. They also sought attorney’s fees. The plaintiffs were represented by Disability Rights California.

At the time, the plaintiffs, who were once institutionalized because of their disabilities, were living in their own homes where they received Medicaid-funded nursing and attendant care through the California Medi-Cal Home and Community Based Nursing Facility/Acute Hospital Waiver Program (“Waiver Program”). They alleged that they were at risk of institutionalization because DHCS maintained unnecessarily low cost limits for these services.

On January 29, 2015, the plaintiffs filed their first amended complaint. The amended complaint added an organizational plaintiff, In Spirit, a non-profit organization that provided financial assistance to persons with disabilities to receive medical care in their home. 
 
On July 7, 2015, the plaintiffs filed a second amended complaint. This complaint added a new named plaintiff, dismissed one of the existing named plaintiffs, elaborated on the factual allegations, and added a third claim for violations of California state law. On September 23, 2015, In Spirit was voluntarily dismissed as a party in the lawsuit. 

On January 26, 2016, the parties held a mediation session but were unable to reach an agreement. Throughout the mediation, the parties continued to engage in discovery. On March 8, 2016, the defendants filed a motion to dismiss for lack of subject-matter jurisdiction. On March 10, 2016, the plaintiffs moved for summary judgement. District Judge Fernando Olguin denied both motions on April 27, 2016. He further set out deadlines for continued discovery.
 
On March 29, 2016, the United States Department of Justice, Civil Rights Division ("DOJ") filed a statement of interest to clarify the defendant’s obligations under the ADA. The DOJ explained that the ADA prohibits unjustified institutionalization and requires individuals with disabilities receive support and services in the most integrated setting as mandated in Olmstead v. L.C., 527 U.S. 581 (1999). The DOJ also clarified that the defendants could not administer the Medicaid waiver without accounting for individual needs and that the integration mandate protects individuals at serious risk of institutionalization. The DOJ filed subsequent statements of interest on August 4, 2016 and September 16, 2016, which further clarified the states’ ADA obligations in light of DHCS’s arguments against the plaintiffs’ motion for summary judgement.

On July 18, 2016, the plaintiffs again moved for summary judgement, which Judge Olguin denied on August 4, 2016 due to continued factual disputes. Judge Olguin also noted being “deeply troubled” by the defendants’ repeated failure to comply in good faith with discovery requests and threatened to impose sanctions.

On September 7, 2016, the plaintiffs again filed a motion for summary judgement. On June 5, 2017, the Court denied that motion, finding that genuine issues of material fact remained regarding whether or not the California waiver program’s cost limits created a serious risk of institutionalization and whether California had an existing deinstitutionalization scheme in place that was effective. 385 F. Supp. 3d 1048. 

The parties continued with discovery, and it appears they continued engaging in settlement talks as well. On March 14, 2018, the plaintiffs moved to voluntarily dismiss their case without prejudice, and on March 19, 2018, the court granted this motion for voluntary dismissal of most of the case. There was some continued litigation over whether the plaintiffs were entitled to costs and attorneys’ fees. 

The dismissal seems to come from the fact that DHCS eventually changed the waiver application process so that decisions would be based on medical necessity without any mention of cost limits. In their motion opposing attorneys’ fees, the defendants asserted that this made the plaintiffs' claims moot, and that there was no basis for awarding attorneys’ fees or costs. The plaintiffs argued that the overall course of events demonstrated that this litigation was a significant factor prompting defendants to eliminate waiver cost limits, which created a presumption that plaintiffs were a catalyst and, because defendants could not rebut that presumption, plaintiffs were entitled to attorneys fees’ and costs under a state statute. 

On May 30, 2019, Judge Olguin granted the plaintiffs’ motion for attorneys fees. The court found that the litigation led to the elimination of DHCS’s cost limits, conferring a significant benefit for potentially thousands of people. The elimination of cost limits would ensure that participants would not have to resort to litigation to secure needed services and that they would be able to remain in their homes and avoid segregation and isolation. The court ordered the plaintiffs to file their motion for attorneys’ fees and costs no later than July 31, 2019. 2019 WL 2590170. 

After a brief delay, the parties agreed on how much the defendants should pay in attorneys’ fees. They notified the court that they had resolved all outstanding issues in this case on November 22, 2019. The notification did not state the size of the award, so the Clearinghouse is unaware of the amount. The case is now closed. 