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CADES SCHUTTE
A Limited Liability Law Partnership

JEFFREY S. PORTNOY 121 1-0

JOHN DUCHEMIN 9748?0

1000 Bishop Street, Suite 1200

Honolulu, HI 96813-4212

Telephone: (808) 521-9200

FAX: (808) 521-9210

Email: jportnoy@cades.com
jduchemin@cades.com

Attorneys for Plaintiffs
NOBORU KAWAMOTO and
ELAINE KAWAMOTO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

NOBORU KAWAMOTO and ELAINE CIVIL NO.

KAWAMOTO, RIGHTS 
Plaintiffs,
COMPLAINT FOR
V- DECLARATORY AND INJUCTIVE
DAVID IGE, in his of?cial capacity as RELIEF
Governor of the State Of Hawaii; EXHIBITS A 
VIRGINIA PRES SLER, in her official
capacity as Director of Health for the CIVIL SUMMONS

State of Hawaii Department of Health;
RACHEL WONG, in her of?cial
capacity as Director of the State of
Hawaii Human Services Department;
DOES 1 1 0,

Defendants.

 

 

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EM

Plaintiffs NOBORU KAWAMOTO and ELAINE KAWAMOTO, by and

through the undersigned attorneys, allege as follows.
INTRODUCTION

1. This action seeks declaratory and injunctive relief arising out of the
Defendants? violations of the fundamental constitutional right of the Plaintiffs, an
elderly married couple, to live together in the same community-care foster family
home facility. The Defendants are DAVID IGE, Governor of the State of Hawaii;
VIRGINIA PRESSLER, Director of Health for the State of Hawaii Department of
Health; and RACHEL WONG, Director of the State of Hawaii Department of
Human Services.

2. Hawaii state law allows for the establishment of community care
foster family homes, which are nursing-level facilities licensed to house two or, at
most, three patients. Ostensibly to preserve an adequate number of beds for
patients receiving federal Medicaid benefits, Hawaii state statutes and
administrative rules forbid community care foster family homes from housing
more than one ?private paying? non?Medicaid) patient. See Haw. Rev. Stat.
321-481 through -483; Haw. Admin. R. Title 17, Chapter
1454. In other words, in a two-patient community care foster family home, at least

one of the resident patients must be a Medicaid patient, and in a three?patient

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community care foster family home, at least two resident patients must be
Medicaid patients. 

3. The legal effect of these laws is that private-paying, non-Medicaid
elderly spouses who require theservices of a community care foster family home
cannot live together under the same roof. The practical effect, moreover, is that
many such spouses will be permanently separated from each other, because the law
forbids them to reside in the same care home and their physical and/or mental
frailties render most or all of them unable to travel to Visit their spouses without
great hardship.

4. The present Plaintiffs, Noboru Kawamoto, a World War II Veteran
and member of the 442nd Regimental Combat Team, and his wife, Plaintiff Elaine
Kawamoto, are suffering that very fate. Noboru, who is 95, and Elaine, who is 89,
suffer from physical infirmities that require an expanded level of nursing care.
Because of circumstances set forth in detail below, Noboru only can receive the
care he needs from a community care foster family home. However, because the
Kawamotos are not Medicaid recipients, they are forbidden from living together in
a community care foster family home and are forced to live in separate nursing
facilities.

5. The fundamental right to family integrity, including the right to live

together in the same home without government intrusion or interference, has been

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firmly established under the Due Process Clause of the Fourteenth Amendment to
the United States Constitution and by a series of United States Supreme Court
decisions going back decades. See, Moore V. City of E. Cleveland, Ohio, 431
US. 494 (1977) (overturning ?single family dwelling? zoning ordinance that
forced the breakup of non-nuclear families living under the same roof).

6. By forcing the Kawamotos to live apart, without any compelling
governmental interest to justify their separation, Defendants have violated the
Kawamotos? fundamental constitutional right to family integrity. The Kawamotos
therefore seek a judicial declaration that the Hawaii state statutes and
administrative rules governing community care foster family homes are
unconstitutional on its face, and as applied to the Kawamotos, to the extent those
statutes and rules prevent non-Medicaid patients from living in the same
community care foster family home as their spouses. The Kawamotos also seek
injunctive relief to prevent the named Defendants from enforcing those
unconstitutional laws in a way that prevents the Kawamotos from living in the
same community care foster family home.

JURISDICTION AND VENUE

7. This Court has subject matter jurisdiction pursuant to 28 U.S.C.

1331 and 1343 because this case is a civil action to redress the deprivation

under color of law of rights secured by the United States Constitution. Plaintiffs

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bring their claims under the Civil Rights Act of 1871, 42 U.S.C. 1983 and 1988.

8. Rule 57 of the Federal Rules of Civil Procedure and 28 U.S.C.
2201 and 2202 authorize this Court to order declaratory and injunctive relief in
this action

9. Venue is proper in this Court pursuant to 28 U.S.C. 1391(b) because
Defendant resides in this federal district and the events giving rise to these claims
occurred in this district.

PARTIES

10. Plaintiffs Noboru and Elaine Kawamoto are residents of the City and
County of Honolulu, State of Hawaii.

11. Defendant David Ige is Governor in the State of Hawaii, and is sued
here in his official capacity.

12. Defendant Virginia Pressler is Director of Health for the State of
Hawaii Department of Health (the ?Health Department?) and is sued here in her
official capacity. The Health Department is a department of the Executive Branch
of the State of Hawaii and is charged with, among other things, implementing
HRS 321-481 through ?483 and enforcing all regulations promulgated under
those statutes.

13. Defendant Rachel Wong is Director of the Department of Human

Services (?Human Services Department?) and is sued here in her official capacity.

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The Human Services Department until July 1, 2014, was required to implement
and enforce administrative rules for community care foster family homes to obtain
certificates of approval that allow such care homes to operate legally in the State of
Hawaii. The Human Services Department accordingly adopted Title 17, Chapter
1454 of the Hawaii Administrative Rules setting forth such standards.
Although the legislature has repealed the statute, HRS 346??334, that gave the
Human Services Department authority over community care foster family homes,
HAR Title 17', Chapter 1454 is still in effect and is used by the Health Department
to regulate those care homes.

14. Plaintiffs are unaware of the true names and capacities of Defendants
DOES 1 through 10 and therefore sue those Defendants through those fictitious
names. Plaintiffs will amend this Complaint to allege the Doe Defendants? true
names and capacities and thereon allege that each of the fictitiously named
Defendants is responsible in his or her official and/or individual capacity for the
occurrences alleged herein, and that Plaintiffs? damages, as alleged in this
Complaint, were legally caused by those Doe Defendants? conduct. Plaintiffs have
made good faith and diligent efforts to identify those Defendants.

15. At all relevant times and in all relevant respects, Defendants have
acted under color of state law.

16. Each Defendant is a ?person? subject to suit within the meaning of

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42 U.S.C. 1983.

17. On information and belief, each of the Defendants performed,
participated in, aided Hand/or abetted, and/or was deliberately indifferent to the acts
alleged in this Complaint and thus proximately caused the injuries alleged in this
Complaint.

FACTUAL ALLEGATIONS

A. Hawaii Law Forces Private-Paving Spouses to Live in Separate
Community Care Foster Family Homes.

18. Laws governing community care foster family homes are set forth in
Title 19, Chapter 321, Part of the Hawaii Revised Statutes (?Part 
titled ?Home and Community-Based Case Management Agencies and Community
Care Foster Family Homes.? Part consists of HRS 321-481
through -485.

19. Among other things, those statutory sections de?ne ?community care
foster family home? in a way that allows only one non-Medicaid patient to live in
any single community care foster family home. HRS 321-481 defines
?community care foster family home? as

home that:

(I) Is regulated by the [Health] [D]epartment in accordance with rules

that are equitable in relation to rules that govern expanded adult

residential care homes;

(2) Is issued a certificate of approval by the department or its designee

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to provide, for a fee, tw'enty-four-hour living accommodations,
incltiding personal care and homemaker services, for not more than
- two adults at any one time, at least one of whom shall be a

medicaid recipient, who are at the nursing facility level of care,
who are unrelated to the foster family, and who are receiving the
services of a licensed home and community-based case
management agency; provided that the department, in its
discretion, mav certifv a home for a third adult who is at the
nursing level of care and a medicaid recipient . . . .

HRS 321-481 (attached to this Complaint as Exhibit A).

20. HRS 321-483 further requires a community care foster family home
to obtain a ?certi?cate of approval? from the Health Department before taking in
patients, and requires the Health Department to adopt rules setting forth the
procedures for obtaining such a certi?cate of approval and the standards of
conditions and competence for the operation of community care foster family
homes. ?ee Exhibit accompanying this Complaint.

21. The Health Department has failed to adOpt any rules for regulating
community care foster family homes. To regulate such homes, the Health
Department relies on HAR Title 17, Chapter 1454, a set of rules promulgated by a
different department (the Human Services Department). Exhibit 
accompanying this Complaint. HAR Title 17, Chapter 1454-2 de?nes community
care foster family home as ?a home issued a certi?cate of approval by the

department to provide, for a fee, twenty?four?hour living accommodations,

including personal care and homemaker services, for not more than two adults at

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any one time, at least one of whom shall be a medicaid recipient, who are at the
nursing facility level of care, are unrelated to the foster family, and are being
served in the home by a licensed home and community-based case management
agency.? HAR C. HAR Title 17, Chapter 1454-43 further
states that in a two-bed community care foster family home, ?[o]ne bed in each
home shall be reserved for medicaid recipients.? HAR 17-1454-43; Exhibit C.

22. Although HRS 321?483 and HAR Title 17, Chapter 1454 require at
least one bed in a two?bed community care foster family home to be reserved for a
Medicaid patient, and although HRS 321-483 requires at least two beds in a
three?bed community care foster family home to be reserved for Medicaid patients,
there is no provision allowing spouses who are private paying, non-Medicaid
patients to be allowed into the same community care foster family home. Spouses
receiving Medicaid, however, not only are entitled to use the same community care
foster family home, but also are entitled, ?if both are clients in the [same] home,?
to ?be permitted to share a room.? HAR Exhibit C. In other 
words, the rules recognize the right of Medicaid patients to live together with their
spouses?but non?Medicaid, private-paying spouses in community care family
foster homes are deprived of that same right.

23. Over the years, a number of private-paying elderly spouses have been

caught in the plight of being forced to live in separate homes because they require

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nursing?level care and have nowhere else to go besides community care foster
family homes. To redress the problem, the Hawaii State Legislature in 2009
passed legislation that allowed private?paying spouses to live in the same
community care foster family home. That statute expired in 2011, however, and
the state legislature did not renew it. 

24. The Hawaii state legislature in its most recent session considered bills
that would have amended HRS 321-481 to restore the ability of private-paying
spouses to live together in the same community care foster family home. The
Health Department and the Human Services Department, however, opposed that
proposed legislation. Defendants Pressler and Wong asserted in joint written
testimony submitted on April 4, 2016 to the Hawaii State Legislature that the
proposed amendment to HRS 321-481 would jeopardize the number of Medicaid
beds available in community care foster family homes statewide. ?ee Exhibit 
accompanying this Complaint.

25. In truth, the statewide supply of Medicaid beds in community care
foster family homes significantly exceeds demand. According to the Health
Department?s own statistics, as of June 1, 2016, community care foster family
homes statewide had vacant beds reserved for Medicaid patients, out of 1,202
total beds. See 

(last visited June 21, 2016),

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attached here as Exhibit E. Thus, more than one?sixth of all available beds in
community care foster homes were both (1) vacant and (2) available for Medicaid
patients, with additional beds available for private-paying patients. The Health
Department?s own data therefore belies Defendants Pressler?s and Wong?s
argument that allowing Plaintiffs and other private-paying spouses to live in the
same community care foster home would cause a shortage of Medicaid beds in
such homes.

B. Plaintiffs Noboru and Elaine Kawamoto Are Forced to Live

Apart Because They Are Private-Paving Patients Who Each Need
Nursing Care from a Community Care Foster Family Home.

26. Noboru Kawamoto is 95 years old. Elaine Kawamoto is 89 years old.
In 2014, Noboru and Elaine were living together in an assisted-living facility in
Windward Oahu, Oceanside Assisted Living in Punaluu, as private-paying, non?
Medicaid residents. I

27. Until August 2014, Noboru did not require a nursing level of care. In
August 2014, Noboru had a series of systemic infections that required him to be
admitted to Castle Medical Center and subsequently at Kahuku Medical Center, at
which facilities he stayed for a total of three months. After his November 2014
discharge from Kahuku Medical Center, Noboru required a nursing level of care.

28. In the meantime, while Noboru was hospitalized, Elaine?s condition

deteriorated, meaning that she also required a nursing level of care, such as could

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be provided either by an expanded adult residential care home (known in the
Hawaii health care industry by the acronym or by a community care
foster family home. In late August 2014, therefore, Elaine was transferred to the
E-ARCH wing of the Oceanside Assisted Living facility.

29. When Noboru was discharged from Kahuku Medical Center in
November 2014, he had been bedridden for three months and was unable to
support his own weight. Noboru?s family attempted to place him in the 
wing of Oceanside Assisted Living, Where Elaine was then living. Oceanside
Assisted Living, however, refused to admit Noboru to its E-ARCH wing. Staff at
that facility informed the Kawamoto family that the wing had no more
nursing-level beds available, and also that the facility did not have the staffing
resources to effectively care for Noboru?s required higher level of care.

30. The Kawamoto family therefore began to search for a new nursing
facility in Windward Oahu where Noboru and Elaine could live together. The
Kawamoto family only had two days to search for a facility that could take Noboru
before he would be discharged from Kahuku Medical Center. In that short time
frame, the Kawamoto family was unable to locate any facility with two
available beds that were compliant with state regulations regarding residents with
Noboru?s medical care requirements.

31. Because the Kawamoto family was unable to ?nd an facility

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able and willing to take in oboru and Elaine, they had no choice but to place
Noboru into a community care foster family home. In mid?November 2014,

oboru entered a community care foster home as a private?paying patient. Noboru
has continued to live in that home through the ?ling date of this Complaint.

32. Elaine has remained in the E-ARCH wing of the Oceanside Assisted
Living facility. She is forbidden from living in the same community care foster
home as Noboru because of the provisions of HRS 321?481 through -483 and
HAR Title 17, Chapter 1454 that forbid community care foster family homes from
housing more than one private-paying patient at the same time.

33. Elaine and Noboru?s advanced age, medical condition, and physical
frailty mean that visits between the spouses are medically infeasible other than
brief visits every few weeks. As a result, Noboru and Elaine have been forcibly
separated, except for occasional visits not more than one or two hours, since
August 2014.

COUNT I (DECLARATORY EDGMENT)

34. Plaintiffs repeat and reallege Paragraphs 1 through 33 as though set
forth fully in this Count.

35. An actual and genuine controversy exists between Plaintiffs and
Defendants regarding whether HRS 321?481 through -483 and HAR Title 17,

Chapter 1454 are unconstitutional, both facially and as applied to Plaintiffs,

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because those laws violate Plaintiffs? fundamental constitutional right to live
together in the same household without governmental interference.

36. Plaintiffs are entitled to a declaration from this Court that
HRS 321-481 through -483 and HAR Title 17, Chapter 1454 are
unconstitutional, both facially and as applied to Plaintiffs, because those laws
violate Plaintiffs? fundamental constitutional right to family integrity, which
includes the right to live together in the same household without governmental
interference.

37. Plaintiffs also are entitled to a declaration from this Court that, in
enforcing the unconstitutional provisions of HRS 321-481 through -483 and
HAR Title 17, Chapter 1454 that prevent Plaintiffs from living in the same
community care foster family home, Defendants have violated Plaintiffs?
constitutional right to live together in the same household without governmental
interference.

COUNT II (IEJUNCTIVE RELIEF)

38. Plaintiffs repeat and reallege Paragraphs 1 through 36 as though set
forth fully in this Count.

39. Because Plaintiffs faces potential permanent separation from each
other and permanent deprivation of their constitutional right to live together in the

same household without governmental interference, Plaintiffs stand to be

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irreparably harmed if Defendants are allowed to continue to enforce the
unconstitutional provisions of HRS 321-481 through ?483 and HAR Title 17,
Chapter 1454 in a way that prevents Plaintiffs from living in the same community
care foster family home.

40. Because HRS 321?481 through -483 and HAR Title 17, Chapter
1454 are unconstitutional as a matter of law, both facially and as applied to
Plaintiffs, Plaintiffs are likely to prevail in this action.

41. While Defendants? enforcement of the unconstitutional provisions of
HRS 321-481 through ?483 and HAR Title 17, Chapter 1454 has caused and
continues to cause Plaintiffs great and irreparable harm, an injunction preventing
enforcement of those provisions during the litigation of this case will not harm the
Defendants.

42. Plaintiffs therefore are entitled to preliminary and permanent
injunctions enjoining the Defendants from enforcing the unconstitutional
provisions of HRS 321-481 through -483 and HAR Title 17, Chapter 1454 in a
way that prevents Plaintiffs from living in the same community care foster family
home.

43. If this claim for injunctive relief is granted, Defendant Pressler would
be responsible for ensuring that the Health Department obey any injunction with

respect to the unconstitutional provisions of HRS 321-481 through ?483.

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44. If this claim for injunctive relief is granted, Defendant Wong would
be responsible for ensuring that the Human Services Department obey any
injunction with respect to HAR Title 17, Chapter 1454.

45. Defendant Ige is chief executive of Hawaii and is responsible for the
faithful execution of Hawaii?s laws under the Haw. Const. art. 5, l, 5. If this
claim for injunctive relief is granted, Defendant Ige would be responsible for
coordinating and ensuring the enforcement of such injunctive relief by the Health
Department and Human Services Department.

PRAYER FOR RELIEF

Plaintiffs Noboru and Elaine Kawamoto request that this Court:

A. Assume jurisdiction over this action;

B. As to Count I, declare and adjudge that (1) HRS 321-481 through 
483 and HAR Title 17, Chapter 1454 are unconstitutional, both facially and as
applied to Plaintiffs, because those laws violate Plaintiffs? fundamental
constitutional right to family integrity, which includes the right to live together in
the same household without governmental interference, and (2) in enforcing the
unconstitutional provisions of HRS 321?481 through -483 and HAR Title 17,
Chapter 1454 that prevent Plaintiffs from living in the same community care foster
family home, Defendants have violated Plaintiffs? constitutional right to live

together in the same household without governmental interference;

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C. As to Count II, issue preliminary and permanent injunctions enjoining
Defendants (and their divisions, officers, servants, employees, attorneys, agents
and representatives, designees, successors-in-office, and all persons acting or
purporting to act in concert or in cooperation with Defendants or pursuant to
Defendants? authority) from enforcingthe unconstitutional provisions of HRS
321?481 through -483 and HAR Title 17, Chapter 1454 in a way that prevents
Plaintiffs from living in the same community care foster family home;

D. Retain jurisdiction over Defendants until the Court is satisfied that the
unconstitutional conduct complained of above no longer exists and will not recur;

E. Award reasonable attorneys? fees, costs, and other expenditures
Plaintiffs have incurred as a result of bringing this action, pursuant to
42 U.S.C. 1988 and other applicable laws; and

F. Order all other relief that this Court deems just and proper.

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DATED: Honolulu, Hawaii, June 30, 2016.

CADES SCHUTTE
A Limited Liability Law Partnership

JEFFREY S. OY
JOHN P. IN
Attorneys for aintiffs
NOB ORU KAWAMOTO

and ELAINE KAWAMOTO

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