1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 9 10 C.F., by and through his parent and guardian, L.F., J.P., by and through her mother and next friend, M.P., and L.B., by and through her parent and guardian, D.W., individually, and on behalf of similarly situated individuals, NO. 16-1205 Plaintiffs 11 12 13 14 15 PATRICIA LASHWAY, in her official capacity as Acting Secretary of the Washington State Department of Social and Health Services; and DOROTHY F. TEETER, in her official capacity as Director of the Washington State Health Care Authority, (CLASS ACTION) Defendants. 16 17 18 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF v. I. 1. OVERVIEW Plaintiffs C.F., J.P., and L.B. are adults with developmental disabilities who are 19 institutionalized, or at serious risk of institutionalization. All three of these individuals have 20 intensive needs for long-term supports and habilitative services and have no desire to receive 21 these services in an institutional setting. All three have been, at some point, determined eligible 22 to receive residential and habilitative support services in the community. However, due to 23 Defendants’ failure to establish an effectively working system to ensure such services are COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 1 Disability Rights Washington 315 5 th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 available, all three have lost support services they need and cannot replace. As a result, Plaintiffs 2 are suffering, or are at risk of suffering, unnecessary institutionalization and segregation. 3 2. Defendants, and their agencies, the Health Care Authority (HCA) and the 4 Department of Social and Health Services (DSHS), do not have an adequate system for ensuring 5 persons with developmental disabilities receive necessary services in the most integrated setting 6 appropriate to their needs. In addition to the named Plaintiffs, dozens more individuals are 7 entitled to services, but wait for prolonged periods to receive those services because they are 8 unavailable. These individuals are waiting in state-operated Residential Habilitation Centers 9 (RHC) and other unstable or unsuitable settings in which they are at risk of institutionalization. 10 3. Defendants have no effectively working plan to ensure that Plaintiffs and these 11 putative class members will avoid institutionalization. This failure violates their rights under 12 Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132 et seq., Section 504 13 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 794 et seq., the United 14 States Supreme Court’s landmark decision in Olmstead v. L.C., 527 U.S. 581 (1999), and the 15 Social Security Act, 42 U.S.C. § 1396 et seq. 16 4. This litigation seeks injunctive and declaratory relief to require Defendants 17 establish an adequate system to provide community-based integrated placement for Plaintiffs and 18 class members, who need community-based habilitative services to avoid institutionalization. 19 Without injunctive and declaratory relief, dozens of individuals with developmental disabilities 20 will continue to languish, either with limited services or in institutions isolated from their home 21 communities, without the services they need to live as independently as possible. 22 23 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 2 Disability Rights Washington 315 5 th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 2 II. 5. PARTIES Plaintiff C.F. Plaintiff C.F. is a twenty-five year old man who has never wanted 3 to live in an institution. Unfortunately, he was institutionalized in October 2014 after his 4 community-based supported living provider abruptly terminated his services. With no services to 5 replace the supported living provider who terminated services, Plaintiff C.F. was admitted as a 6 short-term resident to one of DSHS’s state-operated RHC’s. Since he has been institutionalized, 7 DSHS has been unable to find any other provider willing or able to support him, and he was 8 transferred to a different RHC that is closer to his family, where he has remained segregated 9 from his community. 10 6. Plaintiff J.P. Plaintiff J.P. is a thirty-two year old woman who, for most of her 11 adult life, has been institutionalized. After being hospitalized for years at Western State Hospital, 12 she discharged to an RHC in 2009. Since then, one supported living agency attempted to provide 13 her with community-based residential services in 2012, but she was re-institutionalized within 14 weeks. She continued to seek services from a different supported living agency, but it took three 15 years before another agency agreed to offer services. Although a supported living agency has 16 agreed to serve her, it has been attempting for over a year and half to recruit and retain enough 17 staff to support her in the community. Plaintiff J.P. continues to be institutionalized with no 18 planned discharge date. 19 7. Plaintiff L.B. Plaintiff L.B. is a fifty-one year old woman who has lived her entire 20 life in the community. After Plaintiff L.B. had received brief respite services in an RHC earlier 21 in her life, her mother and guardian decided she should never be institutionalized on a long-term 22 basis. Nevertheless, Plaintiff L.B. has been at risk of institutionalization since October of 2015, 23 when her supported living provider decided to discontinue services. Because DSHS was unable COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 3 Disability Rights Washington 315 5 th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 to identify a substitute supported living agency, Plaintiff L.B. temporarily moved into the home 2 of her aging mother (also guardian) and stepfather. DSHS has sent referral packets to various 3 supported living providers multiple times but has found no agency to accept her referral due to 4 lack of staff. Without the robust supports provided through residential habilitation services, 5 Plaintiff L.B. remains at risk of institutionalization. 6 8. Defendant Patricia Lashway. Defendant Patricia Lashway is the Acting 7 Secretary of DSHS, the state agency that includes the Developmental Disabilities Administration 8 (DDA). DSHS, through DDA, is responsible for implementing the Home and Community- 9 Based services authorized under the Medicaid Act for individuals with developmental 10 disabilities. Ms. Lashway is sued in her official capacity only. All alleged acts by Ms. Lashway, 11 DSHS and the Developmental Disabilities Administration were taken under color of state law. 12 9. Defendant Dorothy F. Teeter. Defendant Dorothy Teeter is the Director of the 13 Washington State Health Care Authority. The Health Care Authority is the designated single 14 state agency for Washington’s Medicaid programs. Ms. Teeter is responsible for ensuring that 15 the Medicaid program is administered in a manner consistent with all state and federal laws. Ms. 16 Teeter is sued in her official capacity only. All alleged acts by Ms. Teeter and the Health Care 17 Authority were taken under color of state law. 18 19 III. 10. JURISDICTION AND VENUE Jurisdiction of this Court arises under 28 U.S.C. § 1331 because this action arises 20 under the laws of the United States, and 28 U.S.C. § 1343(3) and (4) which confer on the federal 21 district courts original jurisdiction over all claims asserted pursuant to 42 U.S.C. § 1983 to 22 redress deprivations of rights, privileges or immunities guaranteed by Acts of Congress and the 23 United States Constitution. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 4 Disability Rights Washington 315 5 th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 11. Venue is proper pursuant to 28 U.S.C. § 1391(b). A substantial part of the events 2 or omissions giving rise to Plaintiffs’ claims occurred in the Western District of 3 Washington and Defendants may be found here. 4 5 6 IV. LEGAL FRAMEWORK A. The Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act 12. Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131- 7 12134, and the Rehabilitation Act of 1973, 29 U.S.C. § 794, are designed to ensure that 8 individuals with disabilities receive their services in the least restrictive, most integrated setting 9 appropriate. 10 13. The ADA was enacted in 1990 “to provide a clear and comprehensive national 11 mandate for the elimination of discrimination against individuals with disabilities[.]” 42 U.S.C. 12 § 12101(b)(1). In enacting the ADA, Congress found that “historically, society has tended to 13 isolate and segregate individuals with disabilities, and, despite some improvements, such forms 14 of discrimination against individuals with disabilities continue to be a serious and pervasive 15 social problem[.]” 42 U.S.C. § 12101(a)(2). 16 14. Congress further recognized that “people with disabilities, as a group, occupy an 17 inferior status in our society, and are severely disadvantaged socially, vocationally, 18 economically, and educationally; [and] the Nation’s proper goals regarding individuals with 19 disabilities are to assure equality of opportunity, full participation, independent living, and 20 economic self-sufficiency for such individuals[.]” 42 U.S.C. § 12101(a)(6)-(7). 21 15. Title II of the ADA applies to public entities, including state or local governments 22 and any departments, agencies, or other instrumentalities of state or local governments. 42 23 U.S.C. §§ 12131, 12132. It provides that “no qualified individual with a disability shall, by COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 5 Disability Rights Washington 315 5 th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 reason of such disability, be excluded from participation in or be denied the benefits of the 2 services, programs, or activities of a public entity, or be subjected to discrimination by any such 3 entity.” 42 U.S.C. § 12132. 4 16. Title II’s implementing regulations prohibit public entities from utilizing “criteria 5 or methods of administration” that “have the effect of subjecting qualified individuals with 6 disabilities to discrimination,” or “[t]hat have the purpose or effect of defeating or substantially 7 impairing accomplishment of the objectives of the public entity’s program with respect to 8 individuals with disabilities[.]” 28 C.F.R. § 35.130(b)(3)(i), (ii). 9 17. The Title II implementing regulation known as the “integration mandate” requires 10 that public entities “administer services, programs, and activities in the most integrated setting 11 appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). “The 12 most integrated setting” is one that “enables individuals with disabilities to interact with 13 nondisabled persons to the fullest extent possible.” 28 C.F.R. § Pt. 35, App. B. 14 18. The U.S. Supreme Court has held that Title II of the ADA prohibits the 15 unjustified institutionalization of individuals with disabilities (Olmstead v. L.C., 527 U.S. 581, 16 597-600 (1999)), noting that segregation of people with disabilities “perpetuates unwarranted 17 assumptions that persons so isolated are incapable or unworthy of participating in community 18 life,” and “severely diminishes the everyday life activities of individuals, including family 19 relations, social contacts, work options, [and] economic independence.” 20 19. According to case law and the Statement of the Department of Justice on 21 Enforcement of the Integration Mandate of Title II of the ADA and Olmstead v. L.C., the ability 22 to state a claim under Title II of the ADA and Olmstead is not limited to people currently in 23 institutional or other segregated settings, but applies equally to those at serious risk of COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 6 Disability Rights Washington 315 5 th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 institutionalization or segregation (e.g., if a public entity’s failure to provide community 2 services “will likely cause a decline in health, safety, or welfare that would lead to the 3 individual’s eventual placement in an institution”). Available at 4 http://www.ada.gov/olmstead/q&a_olmstead.htm. As a result, “[i]ndividuals need not wait 5 until the harm of institutionalization or segregation occurs or is imminent” before they may state 6 a claim for illegal discrimination. Id. 7 20. Like the ADA, the Rehabilitation Act prohibits discrimination against people with 8 disabilities under any program or activity that receives federal financial assistance. 29 U.S.C. § 9 794(a). The Rehabilitation Act’s implementing regulations prohibit recipients of federal 10 financial assistance from utilizing “criteria or methods of administration” that have the effect of 11 subjecting qualified persons with disabilities to discrimination on the basis of disability, or that 12 have the purpose or effect of defeating or substantially impairing accomplishment of the 13 objectives of the recipient’s program with respect to persons with disabilities. 45 C.F.R. § 14 41.51(b)(3)(i)-(ii); 45 C.F.R. § 84.4(b)(4)(i)-(ii). These implementing regulations also require 15 entities receiving federal financial assistance to “administer programs and activities in the most 16 integrated setting appropriate to the needs of qualified . . . persons [with disabilities].” 28 C.F.R. 17 § 41.51(d); see also, 45 C.F.R. § 84.4(b)(2). 18 B. Title XIX of the Social Security Act 19 21. Having chosen to participate the Medicaid program, the State of Washington is 20 required to operate its Medicaid services in compliance with the Social Security Act, 42 U.S.C. 21 § 1396, and its implementing regulations. Section 1915(c) of the Social Security Act, 42 U.S.C. 22 § 1396n(c), allows states to submit a request to the U.S. Secretary of Health and Human 23 Services (“Secretary”) to “waive” certain federal Medicaid requirements in order to offer a COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 7 Disability Rights Washington 315 5 th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 broad range of home and community-based services as an alternative to institutional care in an 2 Intermediate Care Facility (ICF). 3 22. In order to comply with federal requirements governing Medicaid Home and 4 Community-Based Services (HCBS) waivers for people with intellectual and developmental 5 disabilities, the Defendants must evaluate all individuals referred for admission to an ICF, and 6 periodically re-evaluate those in ICFs, to determine if they require an institutional level of care 7 and whether they may be eligible to receive home and community-based services in lieu of 8 residing in an ICF. 42 U.S.C. § 1396n(c)(2)(B). 9 23. Defendants must inform individuals determined to likely require an ICF level of 10 care of the feasible alternatives to institutional placement, including the availability of home and 11 community-based services which could prevent or avoid their continued institutionalization. 42 12 U.S.C. § 1396n(c)(2)(B)-(C). Defendants must assure that “when a beneficiary is determined to 13 be likely to require the level of care provided in . . . [an ICF], the beneficiary or his or her legal 14 representative will be—(1) [i]nformed of any feasible alternatives available under the waiver; 15 and (2) [g]iven the choice of either institutional or home and community-based services.” 42 16 C.F.R. § 441.302(d). The state must ensure HCBS Waiver participants have a “person-centered 17 service plan” that “[r]eflect[s] that the setting in which the individual resides is chosen by the 18 individual.” 42 C.F.R. § 441.301(c)(2)(i). 19 24. Defendants must also ensure that Medicaid services for which each individual is 20 eligible are provided with reasonable promptness to ensure each participant’s health and 21 welfare. 42 U.S.C. § 1396a(a)(8); 42 U.S.C. §1396n(c)(2)(C). 22 23 25. Defendants must provide an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is denied or is not acted COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 8 Disability Rights Washington 315 5 th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 upon with reasonable promptness. 42 U.S.C. § 1396a(a)(3); 42 C.F.R. § 431.201 (a)(1). 2 Defendants must provide notice of each individual’s right to a hearing, the method for obtaining 3 a hearing, and options for representation. 42 C.F.R. § 431.206(b). This information must be 4 provided at the time of any action affecting an individual’s claim. 42 C.F.R. § 431.206(c)(2). 5 6 VI. 26. CLASS ALLEGATIONS Definition of Class. The class consists of all individuals who: 7 a. Are Medicaid recipients with an intellectual or developmental disability; 8 b. Need an institutional level of care provided in a Medicaid-certified ICF in the 9 State of Washington; and 10 c. Qualify for and desire DDA home and community-based habilitative services 11 12 which they are not receiving. 27. Size of Class. The class of Medicaid recipients who qualify for, have requested, 13 and are not receiving home and community-based services administered by DDA is expected to 14 be so numerous that joinder of all members is impracticable. Defendants have identified as 15 many as ninety-one DDA clients as waiting for residential habilitative services in the 16 community, while only a handful of these individuals have been offered these services. 17 28. Class Representative C.F. Named Plaintiff C.F. is diagnosed with a 18 developmental disability and is a DDA client who has been unable to access home and 19 community-based waiver services to replace the services that were terminated by his residential 20 provider. As a result, he has had no option but to be institutionalized for the past year and a half. 21 His claims are typical of the claims of the other members of the class, and, through his mother 22 and guardian, he will fairly and adequately represent the interests of the class. There is no 23 known conflict of interest among class members. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 9 Disability Rights Washington 315 5 th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 29. Class Representative J.P. Named Plaintiff J.P. is diagnosed with a 2 developmental disability and is a DDA client who has been unable to access home and 3 community-based waiver services to replace the services that were terminated by her residential 4 provider. As a result, she has had no option but to be institutionalized for the past seven years. 5 Her claims are typical of the claims of the other members of the class, and, through her mother 6 and next friend, she will fairly and adequately represent the interests of the class. There is no 7 known conflict of interest among class members. 8 9 30. Class Representative L.B. Named Plaintiff L.B. is diagnosed with a developmental disability and is a DDA client who has been unable to access home and 10 community-based waiver services to replace the services that were terminated by her residential 11 provider. As a result, she is at risk of being institutionalized. Her claims are typical of the claims 12 of the other members of the class, and, through her mother and guardian, she will fairly and 13 adequately represent the interests of the class. There is no known conflict of interest among 14 class members. 15 31. Common Questions of Law and Fact. This action requires the determination of 16 whether Defendants violate the requirements under the ADA, the Rehabilitation Act, and the 17 Medicaid Act by failing to have an adequate system in place to (1) provide Plaintiffs and the 18 proposed class with services in the most integrated, least restrictive community-based setting; 19 (2) provide, with reasonable promptness, home and community-based services to Plaintiffs and 20 the proposed class necessary to ensure their health and welfare; and (3) provide adequate notice 21 and due process to Plaintiffs and the proposed class of their eligibility for Medicaid 22 services, including provision of services in the least restrictive setting, and their right to appeal 23 any such determinations through an administrative fair hearing. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 10 Disability Rights Washington 315 5 th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 32. Defendants Have Acted on Grounds Generally Applicable to the Class. 2 Defendants, by failing to establish a system for providing a choice of home and community- 3 based services to Plaintiffs and proposed class members with reasonable promptness in the most 4 integrated least-restrictive setting, have acted on grounds generally applicable to the class, 5 rendering declaratory relief appropriate respecting the whole class. Certification is therefore 6 proper under Fed. R. Civ. P. 23(b)(2). 7 33. Questions of Law and Fact Common to the Class Predominate Over Individual 8 Issues. Alternatively, the class may be certified under Fed. R. Civ. P. 23(b)(3). The claims of 9 the individual class members are more efficiently adjudicated on a class-wide basis. Any 10 interest that individual members of the class may have in individually controlling the 11 prosecution of separate actions is outweighed by the efficiency of the class action mechanism. 12 Upon information and belief, there has been no class action suit filed against these defendants 13 for the relief requested in this action. This action can be most efficiently prosecuted as a class 14 action in the Western District of Washington, where Defendants have their principal place of 15 business, do business, and where Plaintiffs reside. Issues as to Defendants’ conduct in applying 16 standard policies and practices towards all members of the class predominate over questions, if 17 any, unique to members of the class. Certification is therefore proper under Fed. R. Civ. P. 18 23(b)(3). 19 34. 20 21 Class Counsel. Plaintiff has retained experienced and competent class counsel. VI. 35. BACKGROUND Washington State operates four RHCs at Rainier School, Fircrest School, Yakima 22 Valley School, and Lakeland Village, which cumulatively support over 800 residents. RHCs 23 offer residential supports and training and are certified to be funded as Medicaid state plan COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 11 Disability Rights Washington 315 5 th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 Intermediate Care Facility (ICF) Services and skilled nursing facilities. In an RHC, there are far 2 more limited opportunities for community-based activities, and the vast majority of training and 3 support services occur in a segregated institutional setting at the RHC. 4 36. In addition to providing residential habilitation services in RHCs, Defendants 5 provide community-based residential habilitation services for individuals with developmental 6 disabilities in individuals’ own homes rather than in congregate institutional settings. 7 Defendants fund community-based residential habilitation services through the Core and 8 Community Protection Waivers, both of which are Home and Community-Based Services 9 (HCBS) Medicaid waivers. 10 37. Community-based residential habilitation services are typically delivered by 11 privately operated for-profit or non-profit supported living agencies. In addition, residential 12 habilitative services are also delivered through the State Operated Living Alternatives (SOLA) 13 program, which is a supported living program run by DDA. 14 38. Residential habilitation services provided by private supported living agencies 15 and the SOLA program are a combination of training, personal care, and supervision to address 16 outcomes in several areas of the individual’s life, including “personal power and choice,” 17 “competence and self-reliance,” “positive recognition by self and others,” and “positive 18 relationships.” These services should be provided in integrated settings and support individuals 19 in opportunities to engage in a variety of community-based activities. 42 C.F.R. § 20 441.301(c)(2)(i). 21 39. Under the approved Core and Community Protection HCBS waivers, the limit to 22 the amount, frequency, or duration of residential habilitation services is determined by the 23 negotiated daily rates, which are “based on residential support levels (assigned by DD[A] COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 12 Disability Rights Washington 315 5 th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 assessment), specific support needs listed in the assessment, support provided by others (e.g. 2 family members), and the number of people living in the household who can share the support 3 hours.” Individuals may receive anywhere from a few hours a week (Levels 1-3) to daily 4 support with intermittent checks through the night (Level 4) to 24/7 onsite support (Levels 5-6). 5 40. Individuals wishing to be discharged from an RHC with more integrated supports 6 may be referred to Washington’s “Roads to Community Living” program, which is funded 7 through a federal Medicaid grant called “Money Follows the Person.” This grant provides 8 federal matching funds to provide additional discharge planning and community-based supports 9 for up to one year after a person moves into the community. After twelve months, Roads to 10 Community Living funding expires and participants are placed on one of the HCBS waivers. 11 Washington’s Roads to Community Living plan has estimated eighteen individuals with 12 developmental disabilities will be discharged each year until 2019. 13 41. When RHC residents are ready to discharge to community-based residential 14 habilitation services, or waiver participants are seeking new residential habilitation service 15 providers, their DDA case managers prepare a “referral packet” with information about their 16 support needs, history, and preferences. The case managers then submit this referral packet to 17 DDA resource managers, who send the packets to private supported living agencies that are 18 certified to deliver community-based residential habilitation services. 19 42. If a supported living agency receiving a referral packet is interested in serving an 20 individual, the agency can notify DDA to proceed with starting services. No supported living 21 agencies are obligated to accept any referrals, and agencies may rescind their offers to serve 22 individuals. Once contracted, a supported living agency may also terminate services if it 23 determines it can no longer meet an individuals’ health and welfare needs. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 13 Disability Rights Washington 315 5 th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 43. If no supported living agency receiving the packet agrees to serve an individual, 2 DDA may send referral packets to additional agencies, or resend referral packets to the same 3 agencies. 4 44. If all private supported living agencies decline DDA’s referrals, DDA does not 5 provide the individual with any notice of their right to a fair hearing to address Defendants’ 6 failure to provide services with reasonable promptness, or notice of other available options. 7 Instead, individuals must continue to wait indefinitely for a supported living agency willing to 8 provide them with services. 9 10 VII. 45. FACTUAL ALLEGATIONS In 2013, DSHS retained a private consultant, Navigant Healthcare, to conduct an 11 independent review of its supported living program. Navigant’s November 11, 2013 report 12 documented that there was a waitlist for supported living services. It went on to explain, “DDA 13 manages the wait list to prioritize those with the highest levels of need. Due to budget 14 constraints, only individuals whose needs fall into levels 4 through 6 are generally admitted into 15 the program.” 16 17 18 19 20 46. Navigant interviewed three supported living providers regarding DDA rate setting and documented the following: “Providers also discussed the challenge they face due to high staff turnover. They associated low reimbursement rates with an inability to pay competitive wages and high staff turnover. Specifically, the hourly ISS [(Instruction and Support Services)] rates have been decreasing since 2009 while the Washington State minimum wage has increased. In addition, the high turnover puts pressure on their training budgets as they must train all new staff.” 21 22 23 47. In December 2015, DDA identified fifty individuals residing in an RHC who had requested community-based supported living services on or before August 15, 2015, and did not COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 14 Disability Rights Washington 315 5 th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 have a discharge date or supported living agency committed to serving them. In April 2016, 2 DDA identified an additional forty-one HCBS waiver participants who were authorized to 3 receive community-based supported living services on or before December 31, 2015, and did 4 not currently have any supported living agency committed to serving them. 5 48. Plaintiff C.F. is one of the fifty RHC resident identified in December 2015 as 6 waiting for community-based residential habilitation services. His experience is typical of the 7 proposed class. He has a developmental disability that qualifies him for HCBS waiver services, 8 including residential habilitation. 9 49. Plaintiff C.F. was approved for residential habilitation services through the Core 10 Waiver in 2013, when he began to receive services from a private supported living agency. Due 11 to a series of incidents arising from his unmet complex behavioral support needs, Plaintiff C.F.’s 12 provider was unable to retain sufficient staff to provide him with services. After a physical 13 altercation involving Plaintiff C.F. and the provider’s staff, both of whom made cross- 14 allegations of assault against the other, Plaintiff C.F.’s provider gave DDA a notice of 15 termination effective within hours. Without the ability to live independently, Plaintiff C.F.’s 16 only option was to be admitted to an RHC while DSHS searched for a new provider. 17 50. DSHS sent referral packets to several private supported living agencies, but all 18 agencies declined to accept his referral. In addition, DSHS inquired about supporting him in its 19 SOLA program, but there were no openings in that program. Plaintiff C.F. received no notice of 20 any opportunity to request a fair hearing. 21 51. Since he has been institutionalized, Plaintiff C.F. and his guardian have continued 22 to desire Medicaid-funded services provided in a more integrated setting. However, his 23 guardian has significant concerns about him discharging to a supported living agency that could COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 15 Disability Rights Washington 315 5 th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 terminate services with little to no notice if the agency is unable to meet his needs or retain 2 sufficient staff. His guardian recently re-requested SOLA services, but was again told there 3 were no openings in this program. Because DSHS has been unable to identify a supported 4 living provider who could guarantee services to appropriately support his behavior support 5 needs arising from his dual diagnoses of schizophrenia and autism, he has been unable to access 6 community-based residential habilitation services necessary to discharge from the RHC. 7 52. Plaintiff J.P. is also one of the fifty RHC residents, identified in December 2015, 8 to be waiting for community-based residential habilitation services. Her experience is also 9 typical of the proposed class. She has a developmental disability that qualifies her for HCBS 10 11 waiver services, including residential habilitation. 53. Plaintiff J.P. was a class member of Allen, et al., v. Western State Hospital, et al., 12 USDC C99-5018-RBL, another federal class action lawsuit brought in 1999 on behalf of 13 patients with developmental disabilities at Western State Hospital. Under a series of settlement 14 agreements that were in effect from 1999 to 2009, DSHS improved both inpatient and 15 community-based services to meet the needs of people with developmental disabilities who 16 need intensive behavioral supports to be discharged, successfully live in the community, and 17 avoid re-institutionalization. 18 54. After being involuntarily committed at the state hospital, DSHS retained a 19 supported living agency who initially agreed to provide Plaintiff J.P. with community-based 20 services and initiated the implementation of a transition plan. However, the transition was not 21 successful and she was discharged from WSH to an RHC in 2009. 22 23 55. Three years later, in 2012, Plaintiff J.P. was discharged from the RHC with supported living services, only to return to the RHC a few weeks later when her supported living COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 16 Disability Rights Washington 315 5 th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 agency failed to implement the recommendations in her discharge plan for responding to her 2 behavioral health needs. Since she was re-admitted to the RHC, she continued requesting 3 Medicaid-funded community-based services from a new provider, but all supported living 4 agencies in her home region declined to accept her referral. Plaintiff J.P. received no notice of 5 any opportunity to request a fair hearing. 6 56. In January 2015, after DDA sent referral packets to providers in a broader 7 geographic region, a supported living agency outside Plaintiff J.P.’s preferred region accepted a 8 referral, with the caveat that it could take up to a year to find the necessary staff. Presently, a 9 year and a half later, Plaintiff J.P. still has been unable to transition to the community due to the 10 agency’s inability to recruit and retain a sufficient number of staff. Defendants have no 11 alternative plan or timeline to ensure Plaintiff J.P. does not continue to be institutionalized 12 indefinitely while the supported living agency continues to attempt to recruit and retain the staff 13 needed to support her. 14 57. Plaintiff L.B. is one of the forty-one HCBS waiver participants who is waiting for 15 the community-based residential habilitation services she is qualified to receive. Her experience 16 is also typical of the proposed class. She has a developmental disability that qualifies her for 17 HCBS waiver services, including residential habilitation. 18 58. When Plaintiff L.B.’s supported living agency provided notice that it would be 19 terminating her residential habilitation services, DDA sent referral packets to other agencies that 20 support individuals in the county where her mother resides. All of the agencies declined the 21 referral. Plaintiff L.B. received no notice of any opportunity to request a fair hearing. 22 23 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 17 Disability Rights Washington 315 5 th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 59. DDA suggested admission to an RHC as an alternative, and threatened to report 2 Plaintiff L.B.’s guardian to Adult Protective Services (APS) when she requested an additional 3 extension of supported living services while Plaintiff L.B.’s fragile health stabilized. 4 60. Refusing to institutionalize her daughter, Plaintiff L.B.’s guardian agreed for 5 Plaintiff L.B. to live temporarily with her and her husband while DDA searched for an 6 alternative Medicaid-funded community-based supported living provider. As an elderly woman 7 over the age of seventy, Plaintiff L.B.’s guardian does not believe she can indefinitely continue 8 to support Plaintiff L.B. to live at home, which requires that she provide Plaintiff L.B. with 9 significant personal care assistance when hired caregivers cancel, do not show up, or cannot 10 cover a shift. As a result, Plaintiff L.B. is not receiving the combination of training, personal 11 care, and supervision included in residential habilitation services, and she is at risk of 12 institutionalization. 13 14 61. Plaintiffs C.F., J.P., and L.B. would like to receive the residential habilitative services they need in an integrated community-based settings. 15 VII. CLAIMS FOR RELIEF 16 FIRST CLAIM: DECLARATORY RELIEF FOR VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT 17 62. Plaintiffs re-allege the paragraphs above. 63. Plaintiffs and the putative class are all “qualified individuals with a disability” 18 19 within the meaning of 42 U.S.C. § 12131(2). Plaintiff and class members have not been 20 provided services they would need to live in an integrated setting in the community. 21 64. Defendants’ acts and omissions effectively deny Plaintiffs and the putative class 22 the community-based services that they need in order to avoid continued segregation in an 23 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 18 Disability Rights Washington 315 5 th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 institution in violations of Title II of the ADA, 42 U.S.C. § 12132 and its implementing 2 regulations. 3 65. Defendants’ “methods of administration” further have the effect of subjecting 4 Plaintiffs and the putative class to discrimination on the basis of disability by subjecting 5 them to unnecessary and unjustified segregation, or placing them at risk of unnecessary and 6 unjustified segregation, in violation of 28 C.F.R. § 35.130 (b)(3). 7 66. Defendants further discriminate against Plaintiffs and the putative class by 8 denying them access to services based upon the severity of their disabilities, in violation of 28 9 C.F.R § 35.130(b)(1). As a result, Defendants relegate Plaintiffs and the putative class to 10 segregated facilities or place them at risk of institutionalization in violation of the ADA. 11 SECOND CLAIM: DECLARATORY RELIEF FOR VIOLATIONS OF SECTION 504 OF THE REHABILITATION ACT 12 67. Plaintiffs re-allege the paragraphs above. 68. Plaintiffs and putative class members are qualified individuals with disabilities 13 14 under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (a). Defendants’ agencies, HCA 15 and DSHS, receive federal financial assistance. 16 69. Defendants violate Section 504 of the Rehabilitation Act and its implementing 17 regulations by denying Plaintiffs and putative class members access to integrated community18 based programs appropriate to meet their needs, thereby requiring that Plaintiffs and putative 19 class members be confined in segregated institutions in order to receive the services that they 20 need, or suffer risk of institutionalization. 21 THIRD CLAIM: DECLARATORY RELIEF FOR VIOLATIONS OF TITLE XIX OF THE SOCIAL SECURITY ACT 22 23 70. Plaintiffs re-allege the paragraphs above. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 19 Disability Rights Washington 315 5 th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 71. Plaintiffs and the putative class are entitled to declaratory relief pursuant to 42 2 U.S.C. § 1983 that Defendants have acted under color of state law to violate Title XIX of the 3 Social Security Act by failing to provide Plaintiffs and class members with (1) Medicaid 4 benefits with reasonable promptness, 42 U.S.C. § 1396a(a)(8); (a)(10)(A) and its implementing 5 regulations; (2) a meaningful choice of providers, including a choice between institutional and 6 community-based services, 42 U.S.C. § 1396n(c)(2)(B); (C); and (3) adequate written notice 7 of defendants’ determinations, as well as their right to appeal to defendants’ administrative 8 hearing process, pursuant to 42 C.F.R. § 431.200 et seq. 9 FOURTH CLAIM: DECLARATORY RELIEF FOR VIOLATIONS OF TITLE XIX OF THE SOCIAL SECURITY ACT DUE PROCESS 10 11 72. Plaintiffs re-allege the paragraphs above. 12 73. Plaintiffs and the putative class are entitled to declaratory relief pursuant to 42 13 U.S.C. § 1983 that Defendants have acted under color of state law to violate Title XIX of the 14 Social Security Act by failing to provide adequate notice and access to an administrative 15 hearing, 42 U.S.C. § 1396a(a)(3). 16 FIFTH CLAIM: INJUNCTIVE RELIEF 17 74. Plaintiffs re-allege the paragraphs above. 18 75. Plaintiffs and the putative class are entitled to preliminary and permanent 19 injunctive relief pursuant to 42 U.S.C. § 1983 to require Defendants to fully implement the 20 ADA, Rehabilitation Act, and Medicaid requirements as they apply to plaintiff and the proposed 21 class. 22 23 VIII. DEMAND FOR RELIEF WHEREFORE, Plaintiffs requests that this Court: COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 20 Disability Rights Washington 315 5 th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 1. Certify this case as a class action; designate the named Plaintiffs as class 2 representatives; and designate DISABILITY RIGHTS WASHINGTON, Sarah Eaton, Susan 3 Kas, and David Carlson, as class counsel; 4 2. Declare that that Defendants’ failure to implement an adequate system for 5 ensuring the choice of integrated community based services results in unnecessary 6 segregation and institutionalization of Plaintiffs and the class, or places them at risk of 7 unnecessary institutionalization, and violates the Title II of the ADA, Section 504 of the 8 Rehabilitation Act, the Medicaid Act, and the 14th Amendment of the United States 9 Constitution. 10 3. Enjoin Defendants from continued violations of Title II of the ADA, Section 504 11 of the Rehabilitation Act, the Medicaid Act, and the 14th Amendment of the United States 12 Constitution and require Defendants to amend its policies, practices, and procedures to ensure 13 that Plaintiffs and the class are: 14 (a) 15 reasonable promptness; and 16 (b) 17 have the right to choose to receive such services in an institutional or integrated 18 community setting, and that they are entitled to a fair hearing if requested 19 residential habilitative services are not provided with reasonable promptness; provided with appropriate community-based residential services with informed that they are eligible for community-based services, that they 20 4. Enter judgment in favor of Plaintiffs and the class; 21 5. Award Plaintiffs and the class their attorney fees and costs; and 22 6. Award such other relief as is just and proper. 23 // // COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 21 Disability Rights Washington 315 5 th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 2 DATED: August 2, 2016. DISABILITY RIGHTS WASHINGTON 3 4 5 6 7 8 /s/ Susan Kas Susan Kas, WSBA #36592 David Carlson, WSBA #35767 Sarah Eaton, WSBA #46854 315 – 5th Avenue South, Suite 850 Seattle, WA 98104 Tel. (206) 324-1521; Fax (206) 957-0729 Email: susank@dr-wa.org davidc@dr-.wa.org sarahe@dr-wa.org 9 Attorneys for Plaintiff 10 11 12 13 14 15 16 17 18 19 20 21 22 23 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 22 Disability Rights Washington 315 5 th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729