Sanchez v. Johnson

<body topmargin=0 leftmargin=0 marginheight=0 marginwidth=0> <table cellpadding=0 cellspacing=0 border=0><tr> <td valign="top" height=70 BGCOLOR="#006699" TEXT="#080000"> <div> <B>Sanchez v. Johnson</B><B> </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="Arial" ><B>    |     </B><A HREF="index.htm" TARGET="_top" TITLE="Sanchez v. Johnson"><U><B>home</B></U></A></FONT></div> <div> <IMG BORDER="0" SRC="1x1.gif" HEIGHT="20" ALIGN="BOTTOM" HSPACE="0" VSPACE="0" WIDTH="20"><B>  </B><IMG BORDER="0" SRC="1x1.gif" HEIGHT="20" ALIGN="BOTTOM" HSPACE="0" VSPACE="0" WIDTH="20"><B>    </B><IMG BORDER="0" SRC="1x1.gif" HEIGHT="20" ALIGN="BOTTOM" HSPACE="0" VSPACE="0" WIDTH="20"><B>  </B><A HREF="id17.htm" TARGET="_top" TITLE="State Sued Over Low Pay Scale for Caregi"><U><B><IMG SRC="03514140.gif" border=0 width="20" height="20" ALT="next" ALIGN="BOTTOM" HSPACE="0" VSPACE="0"></B></U></A><B>  </B><B>Sanchez v. Johnson</B><B> </B></div> <div> <B><IMG BORDER="0" SRC="Symb075c00b70168ffffff00.gif" HEIGHT="24" WIDTH="24" ALIGN="bottom" HSPACE="0" VSPACE="0">c</B></div> <bR> <bR> <div> </div> </td> </tr><tr> <td valign="top" height=410 BGCOLOR="#FFFFFF" TEXT="#080000"> <bR> <bR> <div> File available in WordPerfect Format at</div> <div> <A HREF="http://www.egroups.com/files/CAL-DDCOMMIMP/" TARGET="_top" TITLE="http://www.egroups.com/files/CAL-DDCOMMI"><U>http://www.egroups.com/files/CAL-DDCOMMIMP/</U></A></div> <bR> <div> <B>Sanchez v. Johnson         </B></div> <bR> <div> PUBLIC INTEREST LAW CENTER OF PHILADELPHIA</div> <div> Thomas K. Gilhool, Pa.  Bar No.  03930</div> <div> Judith A. Gran, Pa.  Bar No.  40134</div> <div> Max Lapertosa, Cal.  Bar No.  189492</div> <div> 125 South Ninth Street, Suite 700</div> <div> Philadelphia, PA 19107</div> <div> Tel:      (215) 627-7100</div> <div> Fax:     (215) 627-3183</div> <bR> <div> DISABILITY RIGHTS EDUCATION & DEFENSE FUND</div> <div> Diane Lipton, Cal.  Bar No.  120836</div> <div> Arlene Mayerson, Cal.  Bar No.  79310</div> <div> Larisa M.  Cummings, Cal.  Bar No.  131076</div> <div> 2212 Sixth Street</div> <div> Berkeley, CA 94710</div> <div> Tel:     (510) 644-2555</div> <div> Fax:     (510) 841-8645</div> <bR> <div> NEWMAN, AARONSON & VANAMAN</div> <div> Valerie Vanaman</div> <div> 14001 Ventura Boulevard</div> <div> Sherman Oaks, CA 91423</div> <div> Tel:     (818) 990-7722</div> <bR> <bR> <bR> <bR> <bR> <DIV ALIGN="LEFT"></DIV> <div> <B>IN THE UNITED STATES DISTRICT COURT</B></div> <div> <B>FOR THE NORTHERN DISTRICT OF CALIFORNIA</B></div> <div> STEPHEN SANCHEZ, by and through his     )          Case No. </div> <div> mother and next friend, Joyce Hoebel,     )</div> <div>                               )</div> <div> KORY NIGIAN, by and through his mother     )          </div> <div> and next friend, Irene Ybarra,           )          <B>COMPLAINT</B></div> <div>                               )          <B>CLASS ACTION</B></div> <div> KATHY TOBIASON, by and          )</div> <div> through her mother and next friend,           )</div> <div> Sandra Nash,                          )</div> <div>                               )</div> <div> SCOTT DE SANTO, by and through his     )</div> <div> mother and conservator, Lilly Munoz,     )</div> <div>                               )</div> <div> GRACE EWALT,                     )</div> <div> a minor, by and through               )</div> <div> her mother, Suzanne Ewalt,                )</div> <div>                               )</div> <div> SCOTT CROSE,                     )</div> <div> by and through his mother and conservator,     )</div> <div> Janice Crose,                          )</div> <bR> <bR> <div> EDWARD “EDDIE” COMPTON,          )</div> <div> by and through his parents and next friends,     )</div> <div> Edward and Elaine Compton,           )</div> <div>                               )                         </div> <div> individually and on behalf of all others     )</div> <div> similarly situated,                    )</div> <div>                               )</div> <div> AUTISM SOCIETY OF               )</div> <div> LOS ANGELES,<I>                    </I>)</div> <div>                               )</div> <div> CALIFORNIA REHABILITATION          )</div> <div> ASSOCIATION,                    )</div> <div>                               )</div> <div> CALIFORNIA COALITION OF          )</div> <div> UNITED CEREBRAL PALSY           )</div> <div> ASSOCIATIONS,                    )</div> <div>                               )</div> <div> EASTER SEALS CALIFORNIA,          )</div> <div>                               )</div> <div> SYSTEMS REFORM, INC.,            )</div> <div>                               )</div> <div> TIERRA DEL SOL, INC.,                )</div> <div>                               )</div> <div>                Plaintiffs,          )     </div> <div>                               )     </div> <div>      v.                         )</div> <div>                               )     </div> <div> GRANTLAND JOHNSON,                )     </div> <div> in his official capacity as Secretary of the     )</div> <div> California Department of Health           )</div> <div> and Human Services,                    )     </div> <div>                               )          </div> <div> CLIFFORD ALLENBY,               )</div> <div> in his official capacity as the Director of the     )</div> <div> California Department of Developmental     )</div> <div> Services,                          )</div> <div>                               )</div> <div> DIANE M. BONTÁ,                    )</div> <div> in her official capacity as the Director of     )</div> <div> the California Department of Health           )</div> <div> Services,                          )</div> <div>                               )</div> <div> B. TIMOTHY GAGE,               )</div> <div> in his official capacity as the Director     ) </div> <div> of the California Department of Finance,     )</div> <div>                                )          </div> <div>                Defendants.          )</div> <div> ____________________________________)</div> <bR> <bR> <bR> <DIV ALIGN="LEFT"></DIV> <div> <B>TABLE OF CONTENTS</B></div> <bR> <div> INTRODUCTION     4</div> <bR> <div> JURISDICTION     5</div> <bR> <div> PLAINTIFFS     6</div> <bR> <div> DEFENDANTS     18</div> <bR> <div> CLASS ALLEGATIONS     19</div> <bR> <div> STATEMENT OF FACTS     20</div> <bR> <div> CAUSES OF ACTION     28</div> <bR> <div> Count I: Americans with Disabilities Act     28</div> <bR> <div> A.  Defendants’ Failure to Provide Services </div> <div>      in the Most Integrated, Least Isolated Setting Appropriate     29</div> <bR> <div> B.  Defendants’ Discrimination Against the Class</div> <div>       of People with Severe Disabilities     30</div> <bR> <div> C.  Defendants’ Utilization of Criteria or Methods of Administration that Discriminate Against People with Disabilities     31</div> <bR> <div> Count II: Section 504 of the Rehabilitation Act     31</div> <bR> <div> A.  Defendants’ Failure to Provide Services </div> <div>      in the Most Integrated, Least Isolated Setting Appropriate     32</div> <bR> <div> B.  Defendants’ Discrimination Against the Class</div> <div>       of People with Severe Disabilities     33</div> <bR> <div> C.  Defendants’ Utilization of Criteria or Methods of Administration that Discriminate Against People with Disabilities     34</div> <bR> <div> Count III: Title XIX of the Social Security Act     35</div> <bR> <div> A.  Defendants’ Failure to Assure that Payment for Community-Based Services is Consistent with Efficiency, Economy and Quality of Care </div> <div>      and Are Sufficient to Enlist Enough Providers to Ensure Access to </div> <div>      Services     35</div> <bR> <div> B.  Defendants’ Failure to Provide Methods and Procedures Necessary to </div> <div>      Safeguard Against Unnecessary Utilization of Institutional and ICF/MR Services     36</div> <bR> <div> C.  Defendants’ Failure to Ensure Meaningful Choice </div> <div>      Between Institutions and Community-Based Care     36</div> <bR> <div> RELIEF     37</div> <bR> <DIV ALIGN="LEFT"></DIV> <div> <B>INTRODUCTION</B></div> <bR> <div>              This is a civil rights action to enforce the common provisions of three Acts of Congress -- the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and Title XIX of the Social Security Act -- each of which prohibit the unnecessary segregation of people with disabilities into large, congregate institutions, or, in the case of Title XIX, the unnecessary utilization of institutions, and all of which prohibit state officials from using criteria and methods of administration which have the effect of unnecessarily segregating people with disabilities.  Additionally, this action is to enforce the provision of Title XIX requiring that payments for care and services are consistent with efficiency, economy, and quality of care.</div> <div>        Defendants are state officials responsible for the administration of Title XIX, which funds both segregated institutions and integrated, community-based services.  Now and for at least a decade, California’s program of services to people with developmental disabilities has been administered by them and their predecessors in such a way that:</div> <div> The wages and benefits paid to direct care and professional staff in community-based services are, and have continuously been, far lower than wages and benefits in institutions.  Wages and benefits in community-based services are among the lowest and least competitive wages and benefits paid in any sector of California’s economy, at par with fast food jobs.  A 1990 study found California’s average wage and benefit differential between community-based services to people with disabilities and institutions to be 122 percent, the largest in the nation.  Since then, the situation has worsened.</div> <div> Community-based services experience high staff turnover rates -- 50 percent turnover in one year on average, the State Auditor found in his October 1999 report -- and low levels of training.  Community-based providers are unable to recruit, hire, and retain the personnel required to expand and to create new community-based services as well as maintaining stable, well-supervised existing services.</div> <div> The criteria and methods of administration and payment which Defendants and their predecessors have utilized violate the laws’ prohibition of unnecessary segregation and institutionalization, have the effect of subjecting or threatening to subject individual Plaintiffs and the class of people with disabilities who are similarly situated to unnecessary segregation and institutionalization, and do not ensure, in the language of Title XIX, efficiency, economy, and quality of the services necessary to them. </div> <div>        Individual Plaintiffs are people with developmental disabilities who are fully able to “handle and benefit from community settings,” <U>Olmstead v. Lois Curtis</U>, ___ U.S. ___, 119 S.Ct. 2176, 2187 (1999) -- and actually have been found by Defendants and their agents to be so capable -- but are retained in institutions because, and only because, community-based services are not available to them.  Other individual Plaintiffs are people with disabilities who have been living at home with parents but who, in the event of parental illness or death or loss of support, would be placed by Defendants and their agents into institutions because community-based services are not available.</div> <div>        Organizational Plaintiffs include providers of community-based services who are unable to expand or create new community-based services and are at grave risk of closing current services, and membership organizations of persons with disabilities and their families who are threatened and adversely affected by the actions and inactions of Defendants and their predecessors.</div> <DIV ALIGN="LEFT"></DIV> <div> <B>JURISDICTION AND VENUE</B></div> <div>        This action arising under the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and under 42 U.S.C. § 1983 to redress the deprivation under color of state law of rights secured to Plaintiffs under Title XIX of the Social Security Act as well as the Disabilities Act and Section 504, subject matter jurisdiction in this case is authorized under 28 U.S.C. §§ 1331 and 1343.  Money damages are inadequate and Plaintiffs have been suffering and will continue to suffer great and irreparable injury.  Venue in this district is proper under 28 U.S.C. § 1391(b).</div> <bR> <DIV ALIGN="LEFT"></DIV> <div> <B>PLAINTIFFS</B></div> <div> <B>            </B>Each individual Plaintiff is a “qualified person with a disability” within the meaning of the Americans with Disabilities Act, a “qualified handicapped person” within the meaning of Section 504 of the Rehabilitation Act, and also is eligible for and enrolled in medical assistance within the terms of Title XIX of the Social Security Act.  Each individual Plaintiff is a person with a developmental disability receiving services administered by Defendants under color of state law.  These individuals are unnecessarily segregated into institutions or are at risk of being unnecessarily segregated into an institution because Defendants, by their actions and inactions concerning wages and benefits, have not ensured the availability or the provision to them of community-based services.  Plaintiffs remain or are at risk of being unnecessarily segregated and are denied fundamental choices on “everyday life activities, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.”  <U>Olmstead</U>, 119 S.Ct. at 2187.</div> <div> <B>     </B>       Plaintiff STEPHEN SANCHEZ is a 34 year old man who has been placed and is retained by Defendants and their agents at Lanterman Developmental Center in Pomona, California.  Mr. Sanchez has mild retardation and operates a motorized wheelchair independently.  Although he has a vision impairment, he reads large print.  Mr. Sanchez possesses excellent receptive and expressive language skills and can participate in complex conversations by using a letter and word board and pointing.  He brings this action through his mother and next friend, Joyce Hoebel, of Santa Monica, California.</div> <div>        Defendants and their agents have determined that Mr. Sanchez is an individual with a developmental disability who is entitled to services under Title XIX of the Social Security Act and under state law. </div> <div>        Mr. Sanchez has lived at Lanterman since age 2.  Although he has been in stable health for some time, Mr. Sanchez lives in Lanterman’s Medical Unit in a small bedroom with five other people.  He works for the Lanterman post office delivering mail on Lanterman’s grounds.  Mr. Sanchez is paid twice weekly and handles his own banking.  Mr. Sanchez’s Individual Program Plan team has reported that Mr. Sanchez “has reached his potential” for growth within Lanterman.</div> <div>        Mr. Sanchez would like to live in the community.  He wishes to live in a small house with a few other people.  He would like the house to be close to his mother’s in Santa Monica.  Among necessary community supports and services, Mr. Sanchez would like a specialized guide dog to increase his mobility.  Mr. Sanchez’s mother, Joyce Hoebel, supports Mr. Sanchez’s decision to live in the community, and intends to be sure that any community placement must meet Mr. Sanchez’s developmental and safety needs.  </div> <div>        Mr. Sanchez’s program team has determined there are no barriers to Mr. Sanchez living in the community, except the non-availability of community services for him.</div> <div>        Plaintiff KORY NIGIAN is a 27 year old man whom Defendants and their agents have placed and retained at Lanterman Developmental Center.  Mr. Nigian has been at Lanterman since he was 16 years old.  Mr. Nigian has retardation and medical conditions.  He uses a wheelchair.  He is nonverbal, and he communicates through letter and word boards and through sign language.  He brings this action by his mother and next friend, Irene Ybarra, of Montebello, California.</div> <div>        Defendants and their agents have determined that Mr. Nigian is an individual with a developmental disability who is entitled to services under Title XIX of the Social Security Act and under state law.   </div> <div>        Mr. Nigian lives in the Medical Unit at Lanterman in the same small room with five other people.  He is an outgoing and friendly individual who enjoys sports and going to sporting events, particularly the Los Angeles Dodgers and bowling.  His mother and family enjoy taking him on outings.</div> <div>        Prior to Lanterman, Mr. Nigian had been placed by Defendants and their agents in geriatric wards of various nursing homes.  These placements segregated Mr. Nigian from his family and society and provided little to nothing in the way of development, training or habilitation.  Mr. Nigian spent much of his childhood in such placements.</div> <div>        Mr. Nigian wants to leave Lanterman and live in the community in an apartment or house with a few roommates.  His mother, Ms. Ybarra, supports Mr. Nigian’s decision.  Mr. Nigian’s Individual Program Plan team has determined Mr. Nigian is capable of handling and benefitting from living in the community.  But, community services are not available to him. </div> <div>        Plaintiff KATHY TOBIASON is a 31 year old woman who has been placed and is retained by Defendants and their agents at Fairview Developmental Center in Costa Mesa, California, in Orange County.  Ms. Tobiason has autism and was previously placed at Camarillo State Hospital and Developmental Center.  She brings this action through her mother and next friend, Sandra Nash, of San Diego.</div> <div>      Defendants and their agents have determined that Ms. Tobiason is an individual with a developmental disability who is entitled to services under Title XIX of the Social Security Act and under state law.   </div> <div>        Defendants and their agents have not provided for Ms. Tobiason’s treatment, habilitation and safety while institutionalized.  Ms. Tobiason sustained head trauma leading to traumatic brain injury while at Camarillo.  In March 2000, Ms. Tobiason sustained a broken jaw while being seen by a Fairview staff dentist.  She currently resides in the Medical Unit as a result of the injury.  </div> <div>        Ms. Tobiason’s Individual Program Plan team has determined Ms. Tobiason can live in the community.  Ms. Tobiason’s mother supports her moving to a small, integrated community residential home with necessary supports and services.  </div> <div>        Because community services are not available, Ms. Tobiason remains unnecessarily segregated at Fairview.</div> <div> <I>            </I>Plaintiff SCOTT DE SANTO is a 32 year old man with retardation whom Defendants and their agents have placed and retained at Fairview Developmental Center in Costa Mesa, California.  Mr. De Santo brings this action through his mother and conservator, Lilly Munoz.  Ms. Munoz lives in El Cajon, California, in San Diego County.</div> <div>        Defendants and their agents have determined that Mr. De Santo is an individual with a developmental disability who is entitled to services under Title XIX of the Social Security Act and under state law.   </div> <div>        Mr. De Santo has lived at Fairview since 1997, when Defendants and their agents moved him from Camarillo State Hospital and Developmental Center.  He has been institutionalized since age 18.  He is housed on Unit 42.  Mr. De Santo works on grounds in landscaping and in the workshop.  He works four hours per day and earns approximately $102 every two weeks.</div> <div>        At Fairview, Mr. De Santo has virtually no opportunity to participate in community life.  Mr. De Santo only leaves the institutional grounds when his mother visits or when he goes on private outings with a psychological intern.  Mr. De Santo’s family lives several hours from Fairview and has difficulty visiting Mr. De Santo on a regular basis.  Ms. De Santo has had to cut back her visits to her son due to the recent increase in gas prices.  </div> <div>        Mr. De Santo is not allowed to leave the buildings at Fairview and go outside unless granted express permission to do so.</div> <div>        On January 14, 2000, Mr. De Santo left the institution without permission by disassembling a plexiglass window, climbing a fence and riding his bicycle off the grounds through a hole in one of the institution’s gates.  Mr. De Santo took a public bus to Huntington Beach, where he rode his bicycle along the beachfront, had lunch at the pier, and later went to a bar.  A bar patron took Mr. De Santo to a halfway house, which notified the Costa Mesa Police Department.  The police assisted Mr. De Santo back to Fairview without incident.  Defendants’ agents “revoked” Mr. De Santo’s “ground privileges” at Fairview as a result of his leaving the institution that day, although they had already been revoked.</div> <div>        Mr. De Santo has told his program team he does not want to live at Fairview and in particular does not like to live in Unit 42.  His mother has raised concerns that Mr. De Santo has been physically harmed or assaulted at Fairview.  Mr. De Santo would like to live in a house in the community with a few roommates, supported employment and behavioral assistance.  Ms. Munoz supports Mr. De Santo’s decision to live in the community.</div> <div>        The California Superior Court for Orange County had ordered that Mr. De Santo be moved to a community setting.  However, Defendants and their agents have been unable to locate any community services for Mr. De Santo.  The Court has since authorized Mr. De Santo’s continued placement at Fairview.</div> <div>        Plaintiff GRACE EWALT is an 11 year old girl with severe developmental and medical conditions, including Angelman’s Syndrome, an autism-related disability accompanied by  severe seizures.  She lives at home in Bakersfield, California and brings this action through her mother, Suzanne Ewalt.</div> <div>        Defendants and their agents have determined that Miss Ewalt is an individual with a developmental disability who is entitled to services under Title XIX of the Social Security Act and under state law.</div> <div>         Miss Ewalt’s program team has determined that Miss Ewalt needs 24-hour nursing care and supervision in order to live at home and attend the public school in her community.  Currently, Miss Ewalt receives two shifts (16 hours) of nursing care, the maximum amount of hours provided under her Title XIX-funded nursing care program by Defendants and their agents. Her mother, who is not trained as a nurse or health care worker, staffs the remaining eight hour shift herself through In-Home Support Services (IHSS).  Suzanne Ewalt had to leave her job in order to care for her daughter at home.</div> <div>        The home health agencies are paid an hourly rate for Miss Ewalt’s care, out of which the agency must pay the nurses’ salaries and benefits, if any, and agency overhead.  </div> <div>        The wages and benefits paid to nurses who care for Miss Ewalt are far lower than those for nurses of comparable training and experience who are employed in institutions and hospitals, and who are also paid in part under Title XIX.</div> <div>        In the past five years, Miss Ewalt has had three home health care agencies, none of which have been able to find sufficient qualified nurses to cover two of the shifts during which Miss Ewalt needs care.  Agencies have had to send unqualified nursing assistants and frequently have been unable to send any nurses at all.  For the last three months it provided nursing care, one agency had an absentee rate that approached 50 percent.  In April 2000, Miss Ewalt’s agency missed 53 hours of care, more than six shifts.  The agency has no financial disincentive from failing to send a nurse because it only receives payment for the hours in which it actually sends a nurse to care for Miss Ewalt.</div> <div>        The use of unqualified or underqualified nurses threatens dire results.  On or about the evening of November 4, 1999, an agency that was unable to send a registered nurse or a licensed vocational nurse had sent a nurses’ assistant.  That evening, Miss Ewalt became critically ill due to severe and recurrent seizures.  The protocol developed by Miss Ewalt’s doctor called for the nurse to administer Klonopin, an anticonvulsant medication.  However, the nursing assistant was unlicensed to dispense medication and could not follow the protocol.  Because Miss Ewalt did not receive immediate treatment, she nearly died.</div> <div>        Miss Ewalt’s Individual Program Plan team recognizes that she is capable of handling and benefitting from living in the community and in her family home.  However, without necessary nursing support, Miss Ewalt could not live in her parents’ home.  No community residential programs exist in the Ewalts’ area that will or can serve Miss Ewalt under the wages and benefits supported by Defendants and their agents.  If Miss Ewalt were to lose her nursing services, or if her parents were unable to provide for her care, she would have to be placed into one of two segregated facilities:  Porterville Developmental Center, an institution, or an acute care hospital far from her home and family. </div> <div>        Plaintiff SCOTT CROSE is a 29 year old man with autism who lives in Citrus Heights, California, in Sacramento County. He brings this action through his mother and conservator, Janice Crose.</div> <div>        Defendants and their agents have determined that Mr. Crose is an individual with a developmental disability who is entitled to services under Title XIX of the Social Security Act and under state law. </div> <div>        Mr. Crose lives at home with his mother.  He previously lived in a group home in Orangevale which, on information and belief, closed due to insufficient funds.  Mr. Crose was then sent by Defendants and their agents to Sonoma Developmental Center for 13 months.  In 1989, Ms. Crose removed Mr. Crose from Sonoma after he was assaulted and received a black eye. Mr. Crose has lived with Ms. Crose since then.  Ms. Crose is her son’s In-Home Support Services worker.</div> <div>        Ms. Crose has suffered two strokes, which have left her with a speech impediment.  If she were unable to care for Mr. Crose, she would want him to live in an individualized, community-based, integrated supported living program.  However, Mr. Crose’s Individual Program Plan states that Mr. Crose will only be able to receive supported living services “if funding is available.”</div> <div>        Plaintiff EDDIE COMPTON is a 27 year old man whom Defendants and their agents have placed and retained at Agnews Developmental Center, the institution in San Jose operated by Defendants and their agents under Title XIX.  He brings this action through his parents and conservators, Edward and Elaine Compton, of Orangevale, California, in Sacramento County.  Mr. Compton has worked as a correctional officer in the California prison system for approximately 20 years.</div> <div>        Defendants and their agents have determined that Eddie Compton is an individual with a developmental disability who is entitled to services under Title XIX of the Social Security Act and under state law. </div> <div>        Eddie Compton has autism and behavioral disorder.  He is placed on a ward at Agnews on which only people with behavioral difficulties live.  He does not leave his ward for the day to attend a day program. </div> <div>        As a child, Eddie Compton lived at home and attended public schools in Sacramento.  Because appropriate transitional services were never developed, Eddie lived at home after leaving school.  When his family could no longer care for him, Eddie Compton was placed into Sonoma Developmental Center.</div> <div>        When his father was transferred to California’s Pelican Bay penitentiary on the California-Oregon border, the family moved to Oregon.  At that time, California terminated services to Eddie Compton, and he lived at Fairview, an Oregon institution.  Oregon has since closed Fairview and provides community-based services to its former residents.</div> <div>        In 1997, Mr. Compton was transferred to a state prison in Sacramento, and the family returned to the Sacramento area.  The family then requested that Eddie receive community residential services there, but were informed that Eddie Compton was an Oregon resident and that California had no responsibility for him.</div> <div>        The Comptons were told their son would have to move to California before he could become eligible for community services.  However, Defendants and their agents agreed to place Eddie Compton in an institution without requiring he live in California beforehand.  On November 5, 1998, Defendants and their agents placed Eddie Compton at Agnews directly from Oregon.</div> <div>        Agnews is 142 miles from the Compton family home.  By segregating Eddie Compton in an institution far from his family home, Defendants have severely diminished Eddie Compton’s everyday life activities, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.</div> <div>        The Comptons have repeatedly requested that their son live in a community-based residential setting.  However, no community programs are available that can afford to pay wages necessary to attract sufficient and qualified staff to meet their son’s behavioral needs. </div> <div>        Eddie Compton is capable of handling and benefitting from living in the community.  With supports, Eddie Compton goes to restaurants, shopping centers, and museums.  Eddie Compton’s parents have taken their son on many community outings, which increase his independence and quality of life.</div> <div>         Because they do not want their son to continue being segregated at Agnews, the Compton family has undertaken, at their own expense, to move their son into their home.  Eddie Compton’s Individual Program Plan team has agreed that he can live outside the institution and has approved his home placement.  The only developmental services to be provided are five hours per day in a day program and In-Home Support Services to allow one of Eddie Compton’s parents to stay at home.</div> <div>        Once he is at home, Eddie Compton will be at grave risk of re-entering Agnews.  Even a minor hospitalization of either parent, a job transfer, or a slight change in his family’s financial status would mean that his parents could not devote the time and resources needed to care for their son in the home.  If the Comptons were no longer able to care for Eddie Compton, he would have to move back to Agnews, because there are no community services available.</div> <div>        Plaintiff AUTISM SOCIETY OF LOS ANGELES is an organization founded in 1969 by parents who united on behalf of their children with autism to support their full integration into public schools and to prevent them from being institutionalized.  Its membership includes people with autism, their families, and professionals in the field of autism such as teachers, psychologists, and social workers.  The Autism Society of Los Angeles is one of the largest local autism society in the United States.  The purpose of the Autism Society is to enable persons with autism to achieve self-determination and self-fulfillment, living, working, and playing as integrated, respected, responsible members of society.  The Autism Society opposes the use of institutions unnecessarily to separate people from their communities and to deprive them of dignity, freedom and the level of independence they can achieve.  The Autism Society sues as a representative of its members and as an organization injured by the diversion of its resources to combat Defendants’ actions and inactions with respect to community wages and benefits. </div> <div>        The Autism Society founded and appoints the Board of Directors of Jay Nolan Community Services, which provides residential and day program services to more than 650 people with disabilities throughout California who are eligible for services under Title XIX.  As such, it is a provider that participates in California’s Medicaid program and receives reimbursement for community-based services rendered to persons with developmental disabilities under Title XIX.</div> <div>        Jay Nolan Community Services operates community-based services that are at risk of closing -- placing its clients at risk of unnecessary institutionalization -- as a result of Defendants’ differential wage, benefit and payment structure.  For example, in San Jose, Jay Nolan Community Services serves 15 people with developmental disabilities in supported living residences, approximately six of whom once lived in institutions.  Five of the residents lived in two supported-living residences that closed due to inadequate and uncompetitive wages. </div> <div>        Jay Nolan Community Services pays staff in its San Jose supported living residences between $9.00 and $11.00 an hour, far below and uncompetitive with wages in institutions.  The San Jose/Silicon Valley area has one of the highest costs of living in the nation.  Under these conditions, Jay Nolan Community Services is unable to recruit and retain workers to maintain these services.  At any given time, one-fifth to one-fourth of the 35 positions are vacant and cannot be filled.  Even at these low wages and understaffing, Jay Nolan Community Services loses approximately $4,000 per month on its San Jose supported living services.  If the supported living services shut down, the 15 people who live there will likely have to move into an institution.</div> <div>     The Autism Society, its members and the people it serves are directly injured, economically and otherwise, by Defendants’ differential wage, benefit and payment policies, and are unable to create and expand existing community-based day and supported living residential services, to create new services and maintain its current services.</div> <div>        Plaintiff CALIFORNIA REHABILITATION ASSOCIATION is an organization representing 130 agencies throughout California which provide integrated, community-based rehabilitation and other services for people with developmental disabilities, including independent and supported living and day services.  The Association is dedicated to ensuring that people with developmental disabilities have choice, quality care and fully productive lives in integrated, community-based settings.  To this end, the Association advocates to foster a regulatory and fiscal climate in which community-based services are provided consistent with efficiency, economy and quality of care.  The Association has been injured, both economically and otherwise, by the diversion of its resources to combat Defendants’ actions and inactions with respect to community wages and benefits.</div> <div>        The Association sues as representative of its member agencies, which are providers that participate in California’s Medicaid program and receive reimbursement for community-based services rendered to people with developmental disabilities under Title XIX.  They have suffered and are suffering injury, economic and otherwise, from Defendants’ differential wage, benefit, and payment policies.</div> <div>        Plaintiff CALIFORNIA COALITION OF UNITED CEREBRAL PALSY ASSOCIATIONS OF CALIFORNIA is an organization comprising thirteen chapters of United Cerebral Palsy.  The Association’s purpose is to advance the independence, productivity, and full citizenship of people with cerebral palsy.  The work of the Association is dedicated to the principle that people with cerebral palsy and other developmental disabilities have the right, the desire, and the ability to shape their own destinies, and that all physical, architectural, communication, social, and public policy barriers preventing the full integration of people with disabilities must be removed.  The Association has been injured, economically and otherwise, by the diversion of its resources to combat Defendants’ actions and inactions with respect to community wages and benefits.   </div> <div>        The Association’s chapters provide integrated, community-based residential and day services to people with developmental disabilities throughout California.  They serve approximately 2,268 people daily with services funded under Title XIX.  The Association sues as representative of its thirteen chapters, which are providers that participate in California’s Medicaid program and receive reimbursement for community-based services rendered to people with developmental disabilities under Title XIX.  As providers of community-based services, they have suffered and are suffering injury, economic and otherwise, from Defendants’ differential wage, benefit and payment policies, and are unable to create or expand existing community-based day, supported living, and other residential services.</div> <div>        For example, the Association’s Sacramento chapter operates a day program for adults in residential services that pays direct care staff $7.25 per hour, experiences nearly 100 percent turnover and is constantly advertising to fill vacant positions.  The Association’s Orange County chapter has workers who last not longer than two to three days, and workers who leave often comment that the job is too difficult given the wages paid.  Many workers who left compare the wages to those at McDonalds.</div> <div>        Plaintiff EASTER SEALS CALIFORNIA is an organization representing six affiliates  throughout California which provide integrated, community-based services for people with developmental disabilities, including independent and supported living.  Easter Seals California is dedicated to ensuring that people with developmental disabilities receive high quality services and support allowing them to lead self-directed, independent and productive lives.  To this end, Easter Seals California advocates to foster a regulatory and fiscal climate in which community-based services are provided consistent with efficiency, economy and quality of care.  Easter Seals California has been injured, both economically and otherwise, by the diversion of its resources to combat Defendants’ actions and inactions with respect to community wages and benefits.</div> <div>        Easter Seals California sues as representative of its member agencies, which are providers that participate in California’s Medicaid program and receive reimbursement for community-based services rendered to people with developmental disabilities under Title XIX.  They have suffered and are suffering injury, economic and otherwise, from Defendants’ differential wage, benefit, and payment policies.</div> <div>        Plaintiff SYSTEMS REFORM, INC. is an advocacy organization formed by families of persons with disabilities.  Systems Reform is dedicated to the development of quality, integrated community services in California and to ending the unnecessary institutionalization of thousands of California’s citizens with disabilities.  It attempts to achieve this goal through legislative and public advocacy. Systems Reform has been injured, both economically and otherwise, by the diversion of its resources to combat Defendants’ actions and inactions with respect to community wages and benefits. </div> <div>        Plaintiff TIERRA DEL SOL is a provider of day services to persons with retardation and other disabilities in the Los Angeles area.  As such, it is a provider that participates in California’s Medicaid program and receives reimbursement for community-based services rendered to persons with developmental disabilities under Title XIX.  Many of Tierra del Sol’s clients are adults who require out-of-home care<B> </B>and who depend on Tierra del Sol to provide day programming services necessary for them to live in the community.  Tierra del Sol and the people it serves have been and continue to be injured, economically and otherwise, by Defendants’ differential wage, benefit and payment policies because it is unable to pay competitive wages necessary to expand its existing day services, newly to create residential services, or to maintain its current services.</div> <div>        Because of the low rates paid under Defendants’ system, Tierra del Sol can only afford to pay its direct care workers between $8.50 and $9.00 per hour.  At any given time, between 14 and 24 positions remain vacant.  In 1998 and 1999, Tierra del Sol lost 72 of its developmental aides, 27 to the Los Angeles Unified School District where they took jobs as teachers or special education aides earning 30 percent more than at Tierra del Sol, and 45 to private sector jobs.  From week to week, Tierra del Sol has had to make and remake decisions to shut down services or not.  Absent relief from Defendants’ differential wage structure that would allow Tierra del Sol to pay competitive wages and benefits, Tierra del Sol will have to curtail or shut down services for people with developmental disabilities, thus incurring economic injury to itself and putting its clients at risk of unnecessary segregation and institutionalization.</div> <div>        In 1998, Tierra del Sol was asked to create and provide new supported living residential services for people with retardation and behavioral challenges.  Tierra del Sol was then and remains unable to do so, because Defendants’ differential wage structure renders them unable to pay wages and benefits necessary to recruit, train and retain workers to staff such services.  To date, Tierra del Sol has been unable to develop residential services that are sorely needed in the San Fernando Valley area.  Absent relief from Defendants’ differential wage structure allowing it to pay competitive wages and benefits, Tierra del Sol will remain, to its economic injury, unable to create new supported living residential services if people with developmental disabilities are to avoid unnecessary segregation and institutionalization. </div> <DIV ALIGN="LEFT"></DIV> <div> <B>DEFENDANTS</B></div> <div> <B>       </B>  Defendant GRANTLAND JOHNSON is sued in his official capacity as the Secretary of the California Department of Health and Human Services, a “public entity” within the meaning of the Americans with Disabilities Act, a recipient of federal funds under Section 504 of the Rehabilitation Act, and which oversees the Department of Health Services, California’s single state agency under Title XIX of the Social Security Act.  As Secretary of the California Department of Health and Human Services, Defendant Johnson oversees the California Department of Developmental Services, the Department of Health Services, and other departments.  Secretary Johnson is charged with ensuring that the services of all of these subsidiary departments are provided in compliance with federal and state law.</div> <div>        Defendant CLIFFORD ALLENBY is sued in his official capacity as the Director of the Department of Developmental Services, a “public entity” within the meaning of the Americans with Disabilities Act, a recipient of federal funds under Section 504 of the Rehabilitation Act, and which Department provides, administers and oversees services funded under Title XIX.  Director Allenby is responsible for directing, organizing, and administering California’s developmental disabilities services program, which includes both California’s five existing institutions, as well as two proposed new institutions, and community-based services for Californians with developmental disabilities.  Director Allenby is charged with administering these services in compliance with federal and state law.</div> <div> <B>            </B>Defendant DIANE M. BONTÁ is sued in her official capacity as the Director of the California Department of Health Services, which Department has been designated the single state agency under Title XIX of the Social Security Act and is a “public entity” within the meaning of the Americans with Disabilities Act as well as a recipient of federal funds under Section 504 of the Rehabilitation Act.  Director Bontá is responsible for directing, organizing and administering California’s medical assistance program, which funds California’s developmental disabilities services program, both institutions and community-based services.  Director Bontá is charged with administering this program in compliance with federal and state law.</div> <div> <B>            </B>Defendant B. TIMOTHY GAGE is sued in his official capacity as the Director of the California Department of Finance, a “public entity” within the meaning of the Americans with Disabilities Act and a recipient of federal funds under Section 504 of the Rehabilitation Act. Director Gage has general powers of supervision over all matters concerning the financial and business policies of the State, including with regard to medical assistance and services to people with developmental disabilities funded under Title XIX.  Director Gage is charged with ensuring that state appropriations and expenditures are made in compliance with federal and state law.</div> <DIV ALIGN="LEFT"></DIV> <div> <B>CLASS ALLEGATIONS</B></div> <div>             The individual plaintiffs named above bring this action on their own behalf and on behalf of all others similarly situated.  The proposed class is as follows: 1) all persons with developmental disabilities who have been and remain unnecessarily segregated into California’s institutions, 2) all persons with developmental disabilities now receiving community-based services who are at risk of unnecessary segregation and institutionalization because of the closure or termination of such services, and 3) all persons with developmental disabilities now living with family who are at risk of unnecessary segregation and institutionalization.  </div> <div> <B>       </B>The Plaintiff class is so numerous that joinder is impracticable.</div> <div>        There are questions of law and fact common to the class.  All members of the class are persons with developmental disabilities who are eligible to receive services under Title XIX of the Social Security Act.  Each class member is capable of handling and benefitting from living in an integrated community setting given appropriate support.  All members are, or are at risk of being, unnecessarily segregated and institutionalized because of their disability or the severity of their disability, because of Defendants’ utilization of criteria and methods of administration and payment that have the effect of unnecessarily segregating people with disabilities, and because of Defendants’ failure to ensure efficiency, economy, and quality of services provided under Title XIX.</div> <div>        The claims of the named Plaintiffs are typical of those in the class.  They arise from the same discriminatory practices, criteria and methods of administration and payment used or utilized by Defendants.  The claims arise from the same legal theories.  Defendants have acted or refused to act on grounds applicable to the class, thereby making appropriate final injunctive and declaratory relief with respect to the class as a whole.</div> <div>        The named Plaintiffs will fairly and adequately protect the interests of members of the class as a whole.  The named Plaintiffs do not have interests antagonistic to those of other class members.  Plaintiffs’ counsel are qualified, experienced and able to conduct the proposed litigation. <B>STATEMENT OF FACTS</B>            A developmental disability manifests itself at birth or during a person’s childhood or youth, irrespective of cause, and substantially limits a person’s functioning in one or more major life areas such as speech, communication, writing skills, and basic daily living.  Retardation is the most prevalent developmental disability and is characterized by an impairment in general intellectual functioning and adaptive behavior.  Other developmental disabilities include epilepsy and cerebral palsy, which may occur with or without retardation, as well as autism and Down syndrome.</div> <div>        It is now established that all people with developmental disabilities can learn -- academically, vocationally, socially and otherwise -- and that their learning advances most when done in integrated, community settings.  It is also in integrated community surroundings that people with developmental disabilities have the fullest opportunity to exercise and to apply their personal, social and work skills. </div> <div>        In recognition of this knowledge, California has developed in the past three decades a system of community-based residential and day services, including supported employment and supported living, to serve people with developmental disabilities.  California was at one time known as a pioneer among States in the development of community-based services for people with retardation and other developmental disabilities.</div> <div>        For a much longer period, however, California has also maintained and continues now still to maintain large public institutions.  These institutions were initially created a century ago, by force of State law, intentionally to segregate and to isolate people with disabilities.  California was the first state in the Union by force of State law to provide for the segregation “for life” of people with developmental disabilities, then called “imbecile and feeble-minded people.”  1887 Cal. Stats. 69 ch. 57.  The Sonoma institution, now still existing and now in the year 2000 the nation’s largest institution, was opened in 1891 to “remove [the feeble-minded] from society”.  California Home for the Feeble-Minded, Sixth Annual Report 30-31 (1890). In the second decade of the 20th Century, when the state embarked on a broad expansion of its institutions, a legislative committee asserted: </div> <div> So fundamental is the problem of the feeble-minded that one can assert without fear of successful contradiction that if all the time, money and effort now devoted to the solution of all our social problems were concentrated for the next ten years on the question of feeble-mindedness, there is not a social problem that would not be nearer its solution at the end of ten years than it will be under the present plan ... In considering the advantages of creating such an institution for the proper care of the mentally defective as unfortunate individuals, there is also to be remembered the benefit to society of thus being relieved of the menace of their unsocial conduct.</div> <bR> <div> Legislative comm. on Mental Deficiency, Report on Mental Deficiency 22, 65 (1917).</div> <div>      As Justice Marshall wrote in <U>City of Cleburne, Texas v. Cleburne Living Center</U>, 473 U.S. 432, 462-64 (1985), these institutions were a product of</div> <div> [a] regime of state-mandated segregation and degradation ... that in its virulence and bigotry rivaled, and indeed paralleled, the worst excesses of Jim Crow.  Massive custodial institutions were built to warehouse the retarded for life; the aim was to halt reproduction of the retarded and “nearly extinguish their race.” ...</div> <div>  </div> <div> Prejudice, once let loose, is not easily cabined ... [L]engthy and continuing isolation of the retarded has perpetuated the ignorance, irrational fears, and stereotyping that long have plagued them.</div> <div>        California currently operates five institutions that segregate and isolate persons with developmental disabilities away from California’s communities.   As of 1996 -- after the settlement and orders in <U>Coffelt v.  Dep’t of Developmental Servs.</U>, No. 91-6401 (Cal. Super. Ct. San Francisco) -- four of California’s institutions remain among the nation’s ten largest.  California is preparing now to open two additional segregated facilities for some 80 persons each.  </div> <div>        Through their unnecessary segregation and isolation of people with disabilities, each of these institutions perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life and severely diminishes the everyday life activities of people with disabilities, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.  <U>Olmstead v.  Lois Curtis</U>, 119 S.Ct. 2176, 2187 (1999).</div> <div>        Both parts California’s developmental disability program -- the institutions and the integrated, community-based services -- are funded under Title XIX of the Social Security Act. </div> <div>        By state law, the services to be provided to people with developmental disabilities, are identified in an Individual Program Plan developed by a team that is required to include the person with a disability, his or her representative, family members, and knowledgeable professionals.  Under state law, people with developmental disabilities are entitled to receive those services and supports set forth in the Individual Program Plan.  </div> <div>             Defendants have established and maintain highly differential payment and wage and benefit structures between the institutional and community-based components of California’s developmental disability services program, which has the effect of subjecting people with developmental disabilities to unnecessary institutionalization and segregation.  </div> <div>        Payments for community services are radically lower than those for institutions: they range from one-half to one-quarter, and sometimes less, those for institutions for a person with the same or similar needs.  Although community services operate with greater efficiency (as well as greater efficacy) than institutions due to less-expensive physical plant and use of existing, integrated community resources, these savings in overhead do not account for the differential.  Only one-half of expenditures in institutions are for active treatment; some 75 percent of community services budgets are dedicated to wages and benefits.</div> <div>        Wages and benefits for direct care and professional staff in community services are radically lower than those in institutions.  Wages and benefits in community services are uncompetitive with jobs requiring comparable education, training, experience, and skill.  They are even uncompetitive with jobs requiring significantly lower education, training, experience and skill, such as fast food jobs.  </div> <div>        In 1990, California’s differential between average direct care staff wages and benefits in community-based services and institutions was the largest in the country.  In 1993, the differential in average direct care staff wages and benefits between institutions and community-based services was 124 percent.  Mitchell et al., <U>Compensation and Turnover of Direct-Care Staff in Developmental Disabilities Residential Facilities in the United States: Wages and Benefits</U>, 51 Mental Retardation 429, 433 (Dec. 1993).  Since then, the situation has worsened.</div> <div>      In administering institutions, the wage and benefit packages which Defendants have judged are necessary to recruit and retain personnel are more than twice as large as community service wages and benefits.  Defendants also provide to newly-recruited and hired workers at the Agnews, Lanterman, Porterville and Sonoma institutions in Northern California a $300 to $700 per month “signing” bonus -- <U>not</U> a one-time bonus, but a <U>permanent</U> bonus -- amounting to a salary supplement of $3,600 to $8,400 per year for every year they work at the institution.  These bonuses cover 66 job classifications and are on top of an annual salary already more than twice as much as community direct care staff.  Even with that salary supplement, Defendants have still been unable to find qualified employees and have therefore found it necessary to offer continuing education, in the form of two years of community college tuition, both to attract new employees and provide them the training they need to care for and support people with developmental disabilities.  No such raise or salary supplement or education benefit has been provided by Defendants to recruit and hire staff for community-based services.</div> <div>      In his October 1999 report, the California State Auditor found that the average annual salary for a community direct care worker in California is $18,500 -- $8.89 per hour -- with annual salaries as low as $16,500 (San Diego) and $15,800 (Far Northern California).  A May 1999 survey commissioned by the North Los Angeles Regional Center found that community-based service providers in its area pay median starting hourly wages of $6.82 for direct-care staff and $8.00 for  supported employment job coaches.  By contrast, the annual salary for direct care workers in institutions ranges from $36,000 to $52,000.</div> <div>        The State Auditor also found that only 40 percent of California’s community service providers pay benefits of any type to employees -- whether health, pension, education and training, or vacation and leave benefits.  Three out of every five providers of community services are unable to and do not pay any staff benefits at all.</div> <div>        Under federal public assistance guidelines, a family of four earning $17,050 or less annually lives in poverty.  A single person with an income of $18,250 or less is considered “very low income”; for a family of four, $26,050 or less is considered “very low income.”  Under these guidelines, most workers in community-based services are either very low income or living in poverty.</div> <div>        Because wages and benefits in community-based services are so low and uncompetitive, community-based service providers cannot recruit and retain qualified and competent staff to care for and to serve people with developmental disabilities.  </div> <div>             The State Auditor found staff turnover in community-based services to average 50 percent annually.  He found that turnover rates range up to 100 percent annually.  The University of Illinois at Chicago found the “instability” rate (the percentage of <U>positions</U> affected by turnover within a year) in California’s community services to be 50.7 percent, and the “crude separation rate” (the percentage of total direct care staff leaving the facility within a year) to be 106.5 percent.  The State Auditor also found that community direct care positions remain vacant on average for three months.</div> <div>        High staff turnover yields instability in community-based services.  Direct care staff do not stay long enough to acquire experience and expertise in supporting and caring for persons with developmental disabilities.  Agencies are unable to develop a workforce of experienced staff who can supervise, train and mentor entry-level direct care staff.  Because of the dearth of experienced direct-care staff, agencies cannot replenish the ranks of their middle managers -- the front-line supervisors for community residential and day services -- with qualified and stable employees.  Conversely, because of the high vacancy rates in direct care positions resulting from high turnover, middle managers must spend an inordinate amount of time substituting for direct care staff.  In sum, high turnover undermines the stability, management and leadership -- both current and future -- of community services agencies, which threatens their survival.</div> <div>        The relevant state legislative subcommittee has so found: “[A]s a result of low rates, vendors are <B>having extreme difficulty in maintaining existing employees, and in hiring and training new employees.</B>”  Senate Budget and Fiscal Review Comm. Subcomm. No. 3 On Health, Human Services, Labor and Veterans Affairs 47 (Apr. 3, 2000) (emphasis in original).</div> <div>        The state Senate subcommittee found that “staff turnover <B>results in a lower quality of service and can jeopardize the health and safety of the consumers receiving services.</B>  Specialized knowledge about consumers and their needs comes from long-term relationships with direct care staff.<B>  In addition, without these services many consumers now living in the community would be forced into more restrictive environments</B>.”  <U>Id</U>. at 48 (first emphasis in original, second supplied).</div> <div>        Because of Defendants’ differential wage and benefit and payment structure, and concomitant high turnover, community-based service providers cannot and will not expand or create new and additional community-based services to serve people with developmental disabilities who still are unnecessarily segregated into institutions, or who, heretofore living at home, now require out of home service.  Community-based service providers have also, for the same reason, had to shut down existing community services.  Providers of community-based services expend significant human and financial resources seeking to recruit and retain staff to continue to deliver quality care and services to people with developmental disabilities already in community programs.  Because of Defendants’ actions and inactions, people with disabilities remain in or are sent into segregated and isolated settings even though they are capable of handling and benefitting from living in the community.</div> <div>        Defendants and their managing agents have admitted that people with developmental disabilities should be served in the most integrated setting possible.</div> <div>        Defendants and their managing agents have admitted that with proper supports, most of the people with developmental disabilities in their institutions would do well in a community setting.  They have admitted that  people with developmental disabilities do well in smaller settings close to their families.</div> <div>        Defendants and their managing agents have admitted that existing community-based services do not have the capacity to serve adequately all of the people now institutionalized in California.</div> <div>      Defendants and their agents have failed to carry out professional recommendations for community placement and discharge from the institutions -- and State Court orders for community placement and discharge -- because, by their own findings, community-based services are chronically unavailable.</div> <div>        Current research and practice have shown that all persons with developmental disabilities can, with appropriate support, live in integrated community settings.  Over the past three decades, nearly all states have successfully moved thousands of people with developmental disabilities into integrated community settings.  When properly staffed and supported, these programs provide a level of service far superior to segregated institutions.  People with developmental disabilities develop independence, occupational skills, and an enhanced sense of self worth when they live among other citizens without disabilities, and are able themselves to live and work and participate as citizens.</div> <div>        Individuals with severe disabilities in particular, including challenging behaviors, accompanying orthopaedic disabilities, and “medical fragility,” fare least well in institutions and make the most progress in integrated, community settings.  Nationwide, empirical studies, including studies conducted by Defendants and their agents, of what happens to institutional residents when they move to appropriate community settings show that people with severe needs gain the most from individually-structured, community-based services.  When provided appropriate supports, persons with severe disabilities make the most significant gains when they move to small, integrated residences.</div> <div>        At least seven states -- Alaska, Hawaii, New Hampshire, New Mexico, Rhode Island, Vermont and West Virginia -- have expanded their community-based services sufficiently to close all of their state institutions for people with developmental disabilities.  Michigan has expanded its community-based services sufficiently to reduce from 6047 in 1977 to 273 in 1998 the number of people in its institutions.  89 percent of Michigan’s citizens with developmental disabilities live in houses located in the community with six or fewer people. David Braddock et al., The State of the States in Developmental Disabilities (1998). </div> <div>        Despite spending $160,000 per resident on average, and despite spending one-fourth of California’s developmental disability budget on institutions, California’s institutions do not provide the required services or care; rather, the care and services there are markedly substandard.  The Health Care Finance Administration (HCFA) of the United States Department of Health and Human Services has decertified one of California’s five state institutions, Agnews, for failure to meet even the most basic needs of their residents.  Two other institutions, Sonoma and Lanterman, are threatened with decertification.  People segregated into California’s institutions are not only unnecessarily segregated and isolated from society, but are also denied decent medical care, supportive services, and habilitation, behavioral, and education services they need -- the very needs which have historically been used to justify their continued segregation and isolation.</div> <div>        Defendants have set differential wages and benefits and payments radically lower for community-based services, and have dedicated a quarter of the state’s developmental disability budget to institutions, despite the fact that many more people with severe disabilities receive community-based residential services than are housed in institutions.  Four times more people with major medical issues receive community-based services than are housed in institutions; for people with severe or profound retardation, seven times more are in the community than institutions; for people with behavioral disabilities, seven times more are in the community; for people who are technology-dependent, seven times more are in the community; for people needing special health care items, ten times more are in the community; for people who are non-ambulatory, 18 times more are in the community.</div> <div> <B>     </B>       Under Defendants’ differential payment structure, community-based services are so underfunded that provider agencies cannot pay wages and benefits necessary to recruit, hire and retain the staff necessary to maintain or to expand and create new and additional community-based services needed to end, and to avoid, the unnecessary segregation and institutionalization of people with disabilities.  Defendants, their predecessors and their agents have unnecessarily segregated people with developmental disabilities into institutions and have continued to do so by establishing and maintaining differential wage and benefit and payment structures and by their failure substantially to equalize wages and benefits and payments between community-based services and institutions. </div> <DIV ALIGN="LEFT"></DIV> <div> <B>CAUSES OF ACTION</B></div> <div> <B>Count  I: The Americans with Disabilities Act</B></div> <div>             Plaintiffs reallege Paragraphs 1-111 as if fully set forth herein and assert the following causes of action under the Americans with Disabilities Act and 42 U.S.C. § 1983:</div> <div>             Title II of the Americans with Disabilities Act prohibits discrimination by any public entity against any qualified individual with a disability and prohibits their exclusion from participation in or denial of the benefits of public services, programs or activities.  42 U.S.C. § 12131.</div> <div>        All individual and class plaintiffs are “qualified persons with a disability” within the meaning of the Act.</div> <div>        Unnecessary segregation and isolation of people with disabilities in institutions constitutes unlawful discrimination under the Act.  <U>Olmstead v. Lois Curtis</U>, 119 S.Ct. 2176, 2187 (1999).</div> <div>        The Act additionally requires that states utilize all available resources to assure that persons with disabilities who can be served in integrated, non-isolated settings are actually served in such settings and that all persons with disabilities who are touched by state service systems, including persons waiting for services at home or elsewhere, are served “even-handedly”.  <U>Id</U>.</div> <div>      Defendants are officers of state agencies that are public entities within the meaning of Title II of the Act, and have acted under color of state law.</div> <div> <B>     A</B><B><U> .</U></B><B>     Defendants’ Failure to Provide Services in the Most Integrated, </B></div> <div> <B>          Least Isolated Setting Appropriate</B></div> <div> <B>                                           </B></div> <div>        Binding regulations promulgated by the Attorney General require that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”  28 C.F.R. §35.130(d).</div> <div>        In the section-by-section analysis that accompanied issuance of Title II’s binding regulations, the Attorney General defined “integrated setting” as “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible ...”  56 Fed. Reg. 35705 (Jul. 26, 1991).</div> <div>        Defendants have violated Plaintiffs’ rights under the Act by failing to set payments that allow community providers to pay direct care staff a competitive wage substantially equal to the wages of their counterparts in state institutions.  Defendants’ actions and inactions have prevented the development of community programs and made the creation of additional integrated, non-isolated  community residential programs all but impossible.   Defendants have perpetuated the segregation of Plaintiffs in large institutions and placed persons who need out of home care at risk of institutionalization, in violation of the Act.</div> <div>      <B>B</B> .       <B>Defendants’ Discrimination Against the Class of People with Severe Disabilities</B> </div> <div>        The ADA regulations prohibit a public entity from “[p]rovid[ing] different or separate aids, benefits or services to individuals with disabilities or to any class of individuals with disabilities that is provided to others” unless necessary to provide services that are as effective.  28 C.F.R. §35.130(b)(1)(iv).</div> <div>        The population of California’s state institutions for people with developmental disabilities tends to be persons with severe disabilities.  These people remain isolated in institutions because of Defendants’ chronic underfunding of wages and benefits for staff in community-based services for people with severe disabilities.</div> <div>        The experiences of several states, including California, have shown that people with severe developmental disabilities, including severe physical and medical needs, can be safely and adequately met in integrated, community-based settings.  People with severe disabilities tend to benefit greatly from such programs.  Systemic studies of persons who have left institutions in states such as Oklahoma, New Hampshire, Connecticut and Pennsylvania have shown people with severe disabilities greatly increase their independence and self-determination skills once they move into the community.</div> <div>        Moreover, there is no correlation between California’s rate structure, which encourages institutionalization and segregation, and the quality of services in the institutions.  As stated above, the Health Care Financing Administration has found the care in three of California’s five institutions for people with developmental disabilities to be so inadequate it has taken the extraordinary step of decertifying those facilities or threatening them with decertification.  There is no treatment or habilitation rationale for housing people with severe disabilities in large institutions.</div> <div>        Defendants have discriminated against Plaintiffs based on the severity of their disabilities through their administration of methods of payment that deny community-based services to people with severe disabilities or challenging needs.  Community residential providers do not and are unable to serve people with severe disabilities unless they are able to pay wages and benefits to command staff who are competent and trained to provide supervision, treatment and support to people with severe disabilities so that they can live successfully in the community.  Under Defendant’s inequitable system of payment, persons with severe disabilities remain isolated in large institutions, or are at great risk of being placed into institutions.</div> <div>      <B>C</B> .  <B>     Defendants’ Utilization of Criteria or Methods of Administration that Discriminate Against People with Disabilities                                                            </B></div> <div>               The ADA regulations prohibit public entities from “utiliz[ing] criteria or methods of administration ... [t]hat have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability[.]” 28 C.F.R. §35.130(b)(3) & (3)(I).</div> <div>        Defendants have discriminated against Plaintiffs by utilizing criteria and methods of administration that discriminate against people with disabilities by administering wage, benefits, and payment policies for community-based services that dictate low wages for direct care and professional staff.  Defendants’ actions and inactions have the effect of rendering integrated, community-based programs a non-option for people with disabilities even though such programs constitute the most integrated setting appropriate to their needs.  Defendants’ criteria and methods of administering its payment structure for developmental disability services has caused the continued, unnecessary segregation and isolation of people with developmental disabilities in large state institutions.</div> <div> <B>Count</B><B><U>  II: Section 504 of the Rehabilitation Act</U></B></div> <div>             Plaintiffs reallege Paragraphs 1-127 as if fully set forth herein and assert the following causes of action under Section 504 of the Rehabilitation Act and 42 U.S.C. § 1983:</div> <div>        Section 504 states, “No otherwise qualified person with disabilities shall, solely by reason of his or her disability, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.”  29 U.S.C. § 794(a).</div> <div>        All individual and class plaintiffs are “qualified persons with a disability” within the meaning of the Act.</div> <div>      Defendants are officers of state agencies that receive federal funding, including funding for California’s Medicaid program under Title XIX of the Social Security Act.  In administering these programs, Defendants have acted under color of state law.</div> <div>      <B>A</B> .      Defendants’ Failure to Provide Services in the Most Integrated, </div> <div> <B>          Least Isolated Setting Appropriate                                   </B></div> <bR> <div>        Binding regulations of the U.S. Department of Health and Human Services promulgated under Section 504 require that recipients of federal funds administer aids, benefits and services “in the most integrated setting appropriate to the person’s needs.”  45 C.F.R. § 84.4(2).  Regulations promulgated by the U.S. Department of Justice state that “[r]ecipients shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons.”  28 C.F.R. § 41.51(d).</div> <div>        Unnecessary segregation and isolation of people with disabilities in institutions constitutes unlawful discrimination under the Act.  <U>Lynch v. Maher</U>, 507 F.Supp. 1268, 1278-80 (D.Conn. 1981)(unnecessary discrimination into nursing homes prohibited); <U>Garrity v. Galen</U>, 522 F.Supp. 171 (D.N.H. 1981)(unnecessary institutionalization prohibited); <U>Homeward Bound v. Hissom Mem. Center</U>, 1987 WL 27104 at *19 (N.D.Okla. 1987)(same); <U>Halderman v. Pennhurst State Sch. and Hosp</U>., 446 F.Supp. 1295, 1321-24 (E.D. Pa. 1978)(same); <U>Jackson v. Fort Stanton Hosp. and Training Sch.</U>, 757 F.Supp. 1243, 1296-99 (D.N.M. 1988), <U>rev’d in part on other grounds</U>, 964 F.2d 980 (10th Cir. 1992)(failure to provide community services based on severity of disability violates Section 504); <U>Bogard v. Kustra</U>, No. 88-C-2424 at 26-29 (N.D.Ill. May 4, 1990)(nursing homes).</div> <div>        Defendants have violated Plaintiffs’ rights under the Act by failing to set payments that allow community providers to pay direct care staff a competitive wage substantially equal to the wages of their counterparts in state institutions.  Defendants’ actions and inactions have prevented the development of community programs and made the creation of additional integrated, non-isolated  community residential programs all but impossible.   Defendants have perpetuated the segregation of Plaintiffs in large institutions and placed persons who need out of home care at risk of institutionalization, in violation of the Act.</div> <div> <B>     B .       Defendants’ Discrimination Against the Class of People with Severe Disabilities</B> </div> <div>        Binding regulations promulgated under Section 504 prohibit a public entity from “[p]rovid[ing] different or separate aid, benefits or services to handicapped persons or to any class of handicapped persons that is provided to others” unless necessary to provide services that are as effective.  45 C.F.R. § 84.4(b)(1)(iv); 28 C.F.R. § 41.51(b)(1)(iv).</div> <div>        The population of California’s institutions for people with developmental disabilities tends to be persons with severe disabilities.  These people remain isolated in institutions because of Defendants’ chronic underfunding of wages and benefits for staff in community-based services for people with severe disabilities.</div> <div> <B><U>     </U></B>       The experiences of several states, including California, have shown people with severe developmental disabilities, including severe physical and medical needs, can be safely and adequately met in integrated, community-based settings.  People with severe disabilities tend to benefit greatly from such programs.  Systemic studies of persons who have left institutions in states such as Oklahoma, New Hampshire, Connecticut, and Pennsylvania have shown people with severe disabilities greatly increase their independence and self-determination skills once they move into the community.</div> <div>        Moreover, there is no correlation between California’s rate structure, which encourages institutionalization and segregation, and the quality of services in the institutions.  As stated above, the Health Care Financing Administration has found the care in three of California’s five institutions for people with developmental disabilities to be so inadequate it has taken the extraordinary step of decertifying those facilities or threatening them with decertification.  There is no treatment or habilitation rationale for housing people with severe disabilities in large state institutions.</div> <div>             Defendants have discriminated against Plaintiffs based on the severity of their disabilities through their administration of methods of payment that deny community-based services to people with severe disabilities or challenging needs.  Community residential providers do not and are unable to serve people with severe disabilities unless they are able to pay wages and benefits to command staff who are competent and trained to provide supervision, treatment and support to people with severe disabilities so that they can live successfully in the community.  Under Defendant’s inequitable system of payment, persons with severe disabilities remain isolated in large state institutions, or are at great risk of moving to institutions.</div> <div> <B><U>     </U></B><B>C .       Defendants’ Utilization of Criteria or Methods of Administration that Discriminate Against People with Disabilities    </B></div> <bR> <div>        The Section 504 regulations prohibit public entities from “utiliz[ing] criteria or methods of administration ... [t]hat have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap[.]” 45 C.F.R. 84.4(b)(4); 28 C.F.R. § 41.51(b)(3)(I).</div> <div>        Defendants have discriminated against Plaintiffs by utilizing criteria and methods of administration that discriminate against people with disabilities by administering wage, benefits and payment policies for community-based services that dictate low wages for direct care and professional staff.  Defendants’ actions and inactions render integrated, community-based programs a non-option for people with disabilities even though such programs constitute the most integrated setting appropriate to their needs.  Defendants’ criteria and methods of administering its payment structure for developmental disability services has caused the continued, unnecessary segregation and isolation of people with developmental disabilities in large state institutions.</div> <div> <B>Count</B><B><U>  III: Title XIX of the Social Security Act</U></B></div> <div>             Plaintiffs reallege Paragraphs 1-141 as if fully set forth herein and assert the following causes of action under Title XIX of the Social Security Act and 42 U.S.C. § 1983:</div> <div>        Title XIX, which governs the federal-state Medical Assistance Program, provides that:</div> <div> a State plan for medical assistance must ... provide such methods and procedures relating to the ... payment for care and services under the plan ... as may be necessary ... to assure that payments are consistent with efficiency, economy, and quality of care and [equal access].</div> <bR> <div> 42 U.S.C. § 1396a(a)(30).</div> <div>        This provision of Title XIX has been held to require that 1) states consider both the effects of their provider payment rates upon the efficiency, economy, and quality of care, and 2) the rates set and paid actually satisfy those substantive requirements of the Act. <U>Orthopaedic Hosp. v. Belshe</U>, 103 F.3d 1491, 1496-97 (9th Cir. 1997), <U>cert. denied</U>, 521 U.S. 1116 (1998).</div> <div>        The purpose of Title XIX of the Social Security Act is to “enabl[e] each State ... to furnish ... rehabilitation and other services to help such families and individuals attain or retain capacity for independence or self-care”.  42 U.S.C. § 1396.</div> <div>        Defendants administer and are responsible for administering a program of services to people with developmental disabilities governed by Title XIX.  In so doing, Defendants have acted under color of state law.</div> <div> <B>     A .       Defendants’ Failure to Assure that Payment for Community-Based Services is Consistent with Efficiency, Economy, and Quality of Care and Are Sufficient to Enlist Enough Providers to Ensure Access to Services                   </B></div> <bR> <div>        California’s differential payments are inconsistent with “efficiency ... of care” in that they do not achieve, but rather deflect the Act’s objective, namely, “to help such families or individuals attain or retain capacity for independence or self-care.”</div> <div>        California’s differential payments are inconsistent with “economy ... of care” because they encourage and grant a “bonus” for institutional care which is, even apart from significant wage differentials, more expensive than family-sized, individual community-based care.  Instead of encouraging economy in its Title XIX program, Defendants have provided an incentive for more expensive and less adequate institutional care.</div> <div> <B><U>     </U></B>  <B>     </B>California’s differential payments are inconsistent with “quality of care” because they have established and maintain such low wages and high turnover rate in community-based programs that quality is prejudiced and defeated.  Moreover, California’s differential payment rates discourage the establishment of a continuum of quality, community-based residential services, thus relegating Title XIX recipients to expensive yet inadequate and unnecessarily restrictive state institutions where people do not achieve independence or self care.</div> <div>        Defendants have inadequately considered the effects of their differential wage, benefits, and payment structure and its negative effect on the efficiency, economy, and quality of care provided to people with disabilities under Title XIX.</div> <div> <B><U>     </U></B><B>B .     Defendants’ Failure to Provide Methods and Procedures Necessary to Safeguard</B><B><U> </U></B><B>Against Unnecessary Utilization of Institutional and ICF/MR Services                 </B></div> <bR> <div>             Title XIX of the Social Security Act requires States to </div> <div> provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan ... as may be necessary to safeguard against unnecessary utilization of such care and services and to assure that payments are consistent with efficiency, economy, and quality of care ... </div> <bR> <div> 42 U.S.C. § 1396a(a)(30)(a).</div> <div>               In requiring states to provide methods and procedures of payment “to safeguard against unnecessary utilization,” Congress intended to “provid[e] suitable alternatives to institutional care.”  113 <U>Cong. Rec.</U> 11417 (1967).  The Committee Report to Title XIX stressed “assuring that patients are receiving appropriate care in an appropriate setting -- frequently in a lower cost facility or setting.”  S. Rep. No. 744, 90th Cong., 2nd Sess. (1967), <U>reprinted at</U> 1967 U.S.C.C.A.N. 2866, 3029.</div> <div> <B><U>     </U></B>  <B>     </B>Far from safeguarding against unnecessary utilization of institutions, California’s payment methods promote their unnecessary utilization.  People with disabilities suffer from this overutilization by remaining confined in institutions.  Defendants’ failure to establish an equitable rate structure that adequately compensates community placements, thus encouraging a continuum of quality community-based residential care, nullifies the purpose of Title XIX and of this particular provision as well.</div> <div> <B><U>     </U></B><B>C .      Defendants’ Failure to Ensure Meaningful Choice Between Institutions and</B><B><U> </U></B><B>Community-Based Care                                                                              </B></div> <bR> <div>             Title XIX of the Act requires that persons with disabilities who are determined likely to require the services of an Intermediate Care Facility for the Mentally Retarded (ICF/MR) be informed both 1) that “feasible alternatives” under the Medicaid Home and Community-Based Waiver Program are available under the waiver, 42 U.S.C. § 1396n(C), 42 C.F.R. § 435.217, and 2) that the affected person with a disability him- or herself has a choice between institutional and community services.  42 U.S.C. § 1396n(c)(2)(C).</div> <div>        California participates in the Home and Community-Based Services Waiver.  Defendants have administered and are responsible for administering these services, and in so doing have acted under color of state law.</div> <div>        Defendants have chronically underfunded community services provided under the waiver, including by virtue of their differential wage, benefit and payment structure.  This underfunding has resulted in the compelled, unnecessary institutionalization of thousands of persons with developmental disabilities who, contrary to law, have been given no meaningful choice between segregated and isolated institutions and appropriate, integrated, non-isolated community services, because no such community services exist.</div> <DIV ALIGN="LEFT"></DIV> <div> <B>RELIEF</B></div> <div>      WHEREFORE, organizational Plaintiffs and individual Plaintiffs and the class they represent respectfully request that this Court:</div> <bR> <bR> <div>        Determine that this action shall be maintained as a class action pursuant to Rule 23, Fed. R. Civ. Proc., and designate individual Plaintiffs as representatives of the class described above,</div> <div>                 Declare that Defendants’ differential wage, benefits and payment structure for California’s developmental disability services program violates Plaintiffs’ rights under the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and Title XIX of the Social Security Act,</div> <bR> <bR> <div>                      Preliminarily and, after full hearing, permanently enjoin Defendants from continuing to maintain substantially differential wages and benefits and payments between integrated, community-based residential and other services for people with developmental disabilities and institutions,</div> <div>        Preliminarily and, after full hearing, permanently enjoin Defendants to establish substantial equality in wages and benefits and payments between integrated community-based residential and other services for people with developmental disabilities and institutions,</div> <div>      Preliminarily and, after full hearing, permanently enjoin Defendants from continuing to utilize criteria, methods and procedures of administration and payment which have the effect of discriminating on the basis of disability and severity of disability by unnecessarily segregating and institutionalizing people with developmental disabilities,</div> <div>        Preliminarily and, after full hearing, permanently enjoin Defendants to utilize criteria, methods and procedures of administration and payment which eliminate unnecessary segregation and institutionalization of people with developmental disabilities,</div> <div>         Preliminarily and, after full hearing, permanently enjoin Defendants from continuing to use methods and procedures relating to the utilization of and payment for care and services which fail to safeguard against unnecessary institutionalization and which fail to assure efficiency, economy and quality of services to people with developmental disabilities,</div> <div>        Preliminarily and, after full hearing, permanently enjoin Defendants to use methods and procedures relating to the utilization of and payment for care and services which assure efficiency, economy and quality of services to people with developmental disabilities, including substantial equality in wages and benefits and payments between integrated, community-based, noninstitutional services to people with developmental disabilities and institutions,</div> <div>        Preliminarily and, after full hearing, permanently enjoin Defendants to provide to each individual Plaintiff services which are integrated, community-based and noninstitutional, and which are of the necessary quality and economy, and which are efficient to achieve the purposes of Title XIX of the Social Security Act, namely to help individuals attain and retain capacity for independence and self-care,</div> <div>         Enjoin Defendants to submit to Plaintiffs and the Court for approval a plan and timetables for the implementation of the aforesaid Orders,</div> <div>        Award reasonable attorneys’ fees and costs to Plaintiffs in accordance with the Americans with Disabilities Act, 42 U.S.C. § 12205, Section 504 of the Rehabilitation Act, and 42 U.S.C. § 1988(b), and</div> <div>        Award such other relief as may be appropriate or proper and just.</div> <bR> <bR> <bR> <div>                          RESPECTFULLY SUBMITTED,</div> <bR> <div>                          PUBLIC INTEREST LAW CENTER</div> <div>                               OF PHILADELPHIA</div> <bR> <bR> <bR> <bR> <div>                          By:     ___________________________________</div> <div>                               Thomas K. Gilhool</div> <div>                               Judith A. Gran</div> <div>                               Max Lapertosa</div> <div>                                    </div> <div>                          </div> <div>                          DISABILITY RIGHTS EDUCATION</div> <div>                               AND DEFENSE FUND</div> <div>                          </div> <div>                          By:     Diane Lipton</div> <div>                               Arlene Mayerson</div> <div>                               Larisa Cummings</div> <div>                          </div> <div>                          NEWMAN, AARONSON & VANAMAN</div> <div>                          </div> <div>                          By:     Valerie Vanaman</div> <bR> <div> May 4, 2000.                    Attorneys for Plaintiffs</div> <bR> <div>   <table border=4><tr><td> <applet CODEBASE="http://www3.counter.bloke.com/c/" CODE="Counter.class" WIDTH=75 HEIGHT=20> <param name=URL value="http://www.oaksgroup.org"> <param name=reset value="0"> <param name=img value="/c/default.gif"> </applet></td></tr></table>  </div> <bR> </td> </tr></table></body>