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					 1 THOMAS E. PEREZ, Assistant Attorney General
   SAMUEL R. BAGENSTOS, Principal Deputy Assistant Attorney General
 2 ALISON BARKOFF, Special Counsel for Olmstead Enforcement
   ALLISON J. NICHOL, Chief
 3 RENEE M. WOHLENHAUS, Deputy Chief
   REGAN RUSH, Trial Attorney
 4 TRAVIS W. ENGLAND, Trial Attorney
          U.S. Department of Justice
 5        950 Pennsylvania Avenue, N.W. - NYA
          Washington, D.C. 20530
 6        Telephone: (202) 307-0663
          Travis.England@usdoj.gov
 7 MELINDA HAAG
   United States Attorney
 8
   ILA C. DEISS, NY SBN 3052909
 9 Assistant United States Attorney
          450 Golden Gate Avenue, Box 36055
10        San Francisco, California 94102
          Telephone: (415) 436-7124
11        FAX: (415) 436-7169
          Ila.deiss@usdoj.gov
12

13 ATTORNEYS FOR UNITED STATES

14                         IN THE UNITED STATES DISTRICT COURT
                         FOR THE NORTHERN DISTRICT OF CALIFORNIA
15
   ESTHER DARLING; RONALD BELL by                          Case No. C09-03798 SBA
16 his guardian ad litem Rozene Dilworth;
   GILDA GARCIA; WENDY HELFRICH by                         CLASS ACTION
17 her guardian ad litem Dennis Arnett;
   JESSIE JONES; RAIF NASYROV; ALLIE                       STATEMENT OF INTEREST OF THE
18 JO WOODARD, by her guardian ad litem                    UNITED STATES OF AMERICA
   Linda Gaspard-Berry; individually and on
19 behalf of all others similarly situated,                Hearing Date: July 26, 2011
                                                           Time:         1:00 p.m.
20                                                         Judge:        Hon. Saundra B.
21                     Plaintiffs,                                       Armstrong
                                                           Address:     1301 Clay Street
              v.                                                         Oakland, CA 94612
22
   TOBY DOUGLAS, Director of the                           Courtroom: 1, 4th Floor
23 Department of Health Care Services, State
   of California, DEPARTMENT OF
24 HEALTH CARE SERVICES,

25

26                     Defendants.
27

28
     DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; STATEMENT OF INTEREST OF THE UNITED STATES
 1                                                       Table of Contents
 2

 3 I.       INTRODUCTION ....................................................................................................... 1
 4
      II. STATEMENT OF FACTS .......................................................................................... 3
 5
         A. Overview of the ADHC Program ............................................................................ 3
 6
         B. Elimination of ADHC Under Assembly Bill 97 ...................................................... 5
 7
      III. ARGUMENT............................................................................................................... 6
 8
         A. Olmstead and the Integration Mandate ..................................................................... 6
 9
         B. Plaintiffs Satisfy the Requirements for a Preliminary Injunction ............................ 7
10
            1.      Plaintiffs Are Likely to Prevail On Their ADA Claim ........................................ 7
11

12               a. Plaintiffs have Article III standing to assert a violation of the ADA’s
                 Integration Mandate ................................................................................................. 8
13
                 b. Policies that place individuals with disabilities at serious risk of
14               institutionalization violate the ADA ........................................................................ 9
15               c. Defendants’ elimination of ADHC services will place Plaintiffs and others
                 similarly situated at serious risk of institutionalization ......................................... 13
16

17               d. The request that the implementation of AB 97 occur in a manner that
                 minimizes disruptions in care that put Plaintiffs and others similarly situated at
18               risk of entry into costly institutional settings is reasonable and does not
                 fundamentally alter Defendants’ overall program of services ............................... 19
19
            2.      Plaintiffs Will Suffer Irreparable Harm Absent a Preliminary Injunction ......... 21
20
            3. The Balance of Hardships Weighs Heavily in Plaintiffs’ Favor and Granting
21          Plaintiffs’ Request for a Preliminary Injunction is in the Public Interest.................. 22
22
      IV. CONCLUSION ......................................................................................................... 23
23

24

25

26
27
                                                                      ii
28
     DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; STATEMENT OF INTEREST OF THE UNITED STATES
 1                                                     Table of Authorities
 2 Cases

 3
      Baird ex rel. Baird v. Rose, 192 F.3d 462 (4th Cir. 1999) .................................................. 6
 4    Ball v. Rogers, 2009 WL 13954235 (D. Ariz. April 24, 2009) .................................. 13, 19
      Beno v. Shalala, 30 F. 3d 1057 (9th Cir. 1994) ................................................................ 21
 5
      Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161 (N.D. Cal. 2009) .......................... passim
 6    Cota v. Maxwell-Jolly, 688 F. Supp. 2d 980 (N.D. Cal. 2010) .................................. passim
      Crabtree v. Goetz, No. 08-0939, 2008 WL 5330506 (M.D. Tenn. Dec. 19, 2008) .......... 22
 7    Cruz v. Dudek, No. 10-23048, 2010 WL 4284955 (S.D. Fla. Oct 12, 2010) ................... 12
 8    Grooms v. Maram, 563 F. Supp. 2d 840 (N.D. Ill. 2008) ................................................. 20
      Haddad v. Arnold, No. 3:10-00414, 2010 WL 6650335 (M.D. Fla. July 9, 2010) .... 12, 22
 9    Hiltibran v. Levy, No. 2:10-cv-04185, 2011 WL 2534332 (W.D. Mo. June 24, 2011) .. 13
10    Hiltibran v. Levy, No. 2:10-cv-04185, 2010 WL 6825306 (W.D. Mo. Dec. 27, 2010) ... 13
      Independent Living Ctr. Of S. Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644 (9th Cir. 2009)22,
11      23
12    Long v. Benson, No. 08cv26, 2008 WL 4571903 (N.D. Fla. Oct. 14, 2008).................... 22
      Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ......................................................... 8
13    M.A.C. v. Betit, 284 F. Supp. 2d 1298 (D. Utah 2003) ..................................................... 12
14    M.R. v. Dreyfus, 767 F. Supp. 2d 1149 (W.D. Wash. 2011) ............................................ 11
      Makin v. Hawaii, 114 F. Supp. 2d 1017 (D. Haw. 1999) ................................................. 12
15    Marlo M. v. Cansler, 679 F. Supp. 2d 635 (E.D.N.C. 2010) ...................................... 12, 22
16    Mental Disability Law Clinic v. Hogan, No. 06-cv-6320, 2008 WL 4104460 (E.D.N.Y.
        Aug. 26, 2008)................................................................................................................. 9
17    Olmstead v. L.C., 527 U.S. 581 (1999) ..................................................................... 1, 7, 23
18    Pennsylvania Protection and Advocacy, Inc. v. Pennsylvania Dept. of Pub. Welfare, 402
        F.3d 374 (3d Cir. 2005) ................................................................................................. 21
19    Pitts v.Greenstein, No. 3:10-cv-00635, 2011 WL 1897552 (M.D. La. May 18, 2011).... 13
20    Radaszewski ex rel. Radazewski v. Maram, 383 F.3d 599 (7th Cir. 2004)....................... 20
      Sanchez v. Johnson, 416 F.3d 1051 (9th Cir. 2005) ........................................................... 6
21    V.L. v. Wagner, 669 F. Supp. 2d 1106 (N.D. Cal. 2009) ...................................... 12, 21, 23
22    Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) ............................................ 7
      Zukle v. Regents of Univ. of California, 166 F.3d 1041 (9th Cir. 1999) ............................ 6
23
      Statutes
24
   28 U.S.C. § 517 ................................................................................................................... 1
25 42 U.S.C. § 12101(a)(2) ...................................................................................................... 6

26 42 U.S.C. § 12101(b)(1) ..................................................................................................... 6
   42 U.S.C. § 12117(b) .......................................................................................................... 6
27
                                                               iii
28
     DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; STATEMENT OF INTEREST OF THE UNITED STATES
 42 U.S.C. § 12131 ............................................................................................................... 1
 42 U.S.C. § 12132 ......................................................................................................... 6, 11
 42 U.S.C. § 12133 ............................................................................................................... 1
 42 U.S.C. § 12134(a) .......................................................................................................... 6
 Cal. Health & Safety Code § 1570.2................................................................................... 3
 Cal. Welf. & Inst. Code § 14526.1(d)(4) ......................................................................... 4
 Cal. Welf. & Inst. Code § 14526.1 (d)(3) ........................................................................... 4
 Cal. Welf. & Inst. Code § 14526.1(d) ................................................................................. 4
 Cal. Welf. & Inst. Code § 14526.1(d)(1) ............................................................................ 4
 Cal. Welf. & Inst. Code § 14526.1(d)(5) ............................................................................ 4
 Cal. Welf. & Inst. Code § 14589.5(d) ................................................................................. 5
 Cal. Welf. & Inst. Code. § 14590 (e) .................................................................................. 5
 Other Authorities

 Executive Order 12250, 45 Fed. Reg. 72995 (1980) .......................................................... 6
 H.R. Rep. No. 101-485 ..................................................................................................... 21
 Regulations

 28 C.F.R. § 35.130(b)(7) ..................................................................................................... 7
 28 C.F.R. § 35.130(d) ..................................................................................................... 1, 6
 28 C.F.R. § 35.190(a).......................................................................................................... 6
 28 C.F.R. Pt. 35, App. A (2010) ......................................................................................... 7
 Cal. Code & Regs. tit. 22, § 54309 ..................................................................................... 4




                                                                 iv

DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; STATEMENT OF INTEREST OF THE UNITED STATES
 1
  1          I.    INTRODUCTION
 2
  2            The United States respectfully submits this Statement of Interest, pursuant to 28 U.S.C.
 3
  3    § 517,1 because this litigation implicates the proper interpretation and application of title II of the
 4
  4    Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. (“ADA”), and in particular, its
 5
  5    integration mandate. See 28 C.F.R. § 35.130(d); Olmstead v. L.C., 527 U.S. 581 (1999). The
 6
  6    Department of Justice has authority to enforce title II and to issue regulations implementing the
 7
  7    statute. 42 U.S.C. §§ 12133-34. The United States thus has a strong interest in the resolution of
 8
  8    this matter.
 9
  9            This lawsuit alleges that the State of California’s action to eliminate Adult Day Health
10
 10    Care (“ADHC”) services on September 1, 2011, without ensuring sufficient alternative services
11
 11    are available, will place thousands of individuals with disabilities who currently receive ADHC
12
 12    services at serious risk of institutionalization, in violation of the ADA. (Second Am. Compl.,
13
 13    ECF No. 218 (Jun. 2, 2011), ¶¶ 1, 7.) See also Cal. Welf. & Inst. Code §§ 14589(b), 14589.5(a)
14
 14    (eliminating ADHC). In their Motion for Preliminary Injunction, Plaintiffs seek an order
15
 15    enjoining the California Department of Health Care Services (“DHCS”) and its director, Toby
16
 16    Douglas (collectively, “Defendants”) from eliminating ADHC services until adequate,
17
 17    appropriate, and uninterrupted services are available to avoid unnecessarily forcing Plaintiffs into
18
 18    segregated, institutional settings. (Pls.’ Mot. for Prelim. Inj., ECF No. 225 (Jun. 9, 2011) (“Pls.’
19
 19    Mot.”) at 1-2)2
20
 20
       1
21       28 U.S.C. § 517 permits the Attorney General to send any officer of the Department of Justice
 21    “to any State or district in the United States to attend to the interests of the United States in a suit
22     pending in a court of the United States.”
 22
23     2
        Plaintiffs have asked this Court to enjoin the State’s termination of ADHC as a Medi-Cal
 23
24     benefit. (See Pls.’ Mot. at 1.) CMS has approved the State Plan Amendment that eliminates
 24    ADHC as a federal/state Medi-Cal benefit. See Section II(B), infra. We recommend that this
25     Court enter an injunction preserving ADHC services unless and until adequate, appropriate, and
 25    uninterrupted replacement services are provided to prevent unnecessary institutionalization,
26     without specifically addressing the services’ status as federal/state Medi-cal benefit as the
 26
       Plaintiffs originally proposed in their Motion.
27
 27                                                      1
28
 28   DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; STATEMENT OF INTEREST OF THE UNITED STATES
 1            This Court has already twice granted Plaintiffs’ requests for preliminary injunction,
 2 enjoining the State from (1) reducing the maximum number of days of available ADHC services

 3 per week, and (2) implementing more restrictive eligibility criteria for the ADHC service. See

 4 Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161 (N.D. Cal. 2009); Cota v. Maxwell-Jolly, 688 F.

 5 Supp. 2d 980 (N.D. Cal. 2010), appeal pending, No. 10-15635 (9th Cir. filed Mar. 24, 2010).

 6 Both injunctions rested, in part, on a finding that Defendants’ reduction in available ADHC

 7 services, without ensuring provision of sufficient replacement services, would place impacted

 8 ADHC recipients at risk of institutionalization in violation of the ADA. See Brantley, 656 F.

 9 Supp. 2d at 1175; Cota, 688 F. Supp. 2d at 994-95.

10            The rationale supporting the issuance of this Court’s two prior injunctions applies with
11 even more force to Plaintiffs’ present motion for preliminary injunction. Now, the State is not

12 only reducing, but entirely eliminating a service that this Court has found to be “critical to

13 [Plaintiffs’] ability to avoid institutionalization, and to remain in a community setting.” Cota,

14 688 F. Supp. 2d at 994; see also Brantley, 656 F. Supp. 2d at 1174. Although Defendants posit

15 that the same or a similar array of medically necessary services will be available to Plaintiffs

16 through other existing State Medicaid (“Medi-Cal”) services, Defendants have failed to

17 meaningfully develop or implement “any means of ensuring that… the necessary alternative

18 services will be identified and in place for Plaintiffs so that there will not be a period where they

19 are not receiving the care prescribed by their [Individual Plans of Care (IPCs)].” See Brantley,
20 656 F. Supp. 2d at 1174. Plaintiffs have produced substantial evidence regarding the

21 devastating effects of Defendants’ current plan to implement termination of the ADHC program,

22 including institutionalization, deteriorating physical and mental health, and even death. Indeed,

23 class members have already begun to enter nursing facilities and other segregated, institutional

24

25

26
27                                                          2

28   DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; STATEMENT OF INTEREST OF THE UNITED STATES
 1
  1 settings as ADHC centers have begun to shut their doors and additional centers are starting to
 2         3
  2 close.
 3
  3       II. STATEMENT OF FACTS
 4
  4      A. Overview of the ADHC Program
 5
  5          ADHC is a community-based day program for low-income elderly individuals and
 6
  6 younger adults with disabilities that is offered through California’s Medi-Cal State Plan.
 7
  7 Brantley, 656 F.Supp.2d at 1164. The California legislature specifically designed the ADHC
 8
  8 program as a community-based alternative to institutional care. See Cal. Health & Safety Code §
 9
  9 1570.2. Services are provided through privately-run ADHC centers throughout the State, and
10
 10 each center must be licensed by DHCS. Brantley, 656 F. Supp. 2d at 1164. There are
11
 11 approximately 309 licensed and Medi-Cal certified ADHC centers in 34 of California’s 58
12
 12 counties. (Missaelides Decl. ¶¶ 38-39.) As of May 13, 2011, those centers served approximately
13
 13 34,735 ADHC program participants. (Missaelides Decl. ¶ 41.)
14
 14          Each ADHC center must directly provide the following services on-site: rehabilitation
15
 15 services (including physical therapy, occupational therapy, and speech therapy), medical and
16
 16 nursing services (including skilled nursing care rendered by a professional nursing staff and
17
 17 other self-care services), nutrition services (including one meal per day and dietary counseling
18
 18 and nutrition education), psychiatric and psychological services, medical social services,
19
 19 necessary nonmedical and medical transportation services to and from participants’ homes, and
20
 20 planned recreational and social activities to prevent deterioration and stimulate social interaction.
21
 21
22 3 (See Decl. of Lydia Missaelides, ECF No. 245, (“Missaelides Decl.”) ¶¶ 77-79, 107-110; Decl.
 22
     of Denise Houghton, ECF No. 241 (“Houghton Decl.”) ¶¶ 10-11, 21-24; Decl. of Peter Behr,
23 ECF No. 229, (“Behr Decl.”) ¶¶ 18, 21, 33, 36; Decl. of Debbie Toth, ECF No. 256, (“Toth
 23
24 Decl.”) ¶¶ 65-66; Decl. of Diane Puckett, ECF No. 251, (“Puckett Decl.”) ¶¶ 17, 19; Decl. of
 24 Tracy McCloud, ECF No. 244, (“McCloud Decl.”) ¶¶ 15-16, 43-52; Decl. of Dawn Myers
25 Purkey, ECF No. 246, (“Myers Purkey Decl.”) ¶¶ 40-44; Decl. of Celine Regalia, ECF No. 252,
 25 (“Regalia Decl.”) ¶¶ 57-58; Decl. of Nina Nolcox, ECF No. 248, (“Nolcox Decl.”) ¶¶ 13, 15;
26 Decl. of Catherine Davis, ECF No. 232, (“Davis Decl.”) ¶¶ 36-40; Suppl. Decl. of Lydia
 26
     Missaelides, ECF No. 290 (“Suppl. Missaelides Decl.”) ¶¶ 8-12).
27                                                           3
 27
28
 28 DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; STATEMENT OF INTEREST OF THE UNITED STATES
 1 Cal. Code Regs. tit. 22, § 54309 (2010). The ADHC centers are authorized to provide care at a

 2 daily all-inclusive Medi-Cal rate of $76.26 for all required services. (Missaelides Decl. ¶ 26.)

 3            Authorization for an individual to receive ADHC services is only granted if the service is
 4 certified to be medically necessary. Cal. Welf. & Inst. Code § 14526.1(d). To be eligible for

 5 ADHC, a participant must be certified in their Individual Plan of Care (“IPC”) as having “one or

 6 more chronic or post acute medical, cognitive, or mental health conditions” requiring either

 7 monitoring, treatment, or intervention, “without which the participant’s condition will likely

 8 deteriorate and require emergency department visits, hospitalization or other

 9 institutionalization.” Cal. Welf. & Inst. Code § 14526.1(d)(1); (see also Ex. C to Missaelides

10 Decl., at 2 (Medical Necessity Criterion #1)). The participant’s network of non-ADHC supports

11 must be “insufficient to maintain the individual in the community,” either because the participant

12 lives alone and has no family or caregivers available to provide sufficient and necessary care or

13 supervision, or because the participant lives with one or more related or unrelated individuals

14 who are “unwilling or unable to provide sufficient and necessary care or supervision to the

15 participant.” Cal. Welf. & Inst. Code § 14526.1 (d)(3); (see also Ex. C to Missaelides Decl., at 3

16 (Medical Necessity Criterion #3)). The participant must also be certified as having a “high

17 potential … for the deterioration of the participant’s medical, cognitive, or mental health

18 condition or conditions in a manner likely to result in emergency department visits,
19 hospitalization or other institutionalization if ADHC services are not provided.” Cal. Welf. &

20 Inst. Code § 14526.1(d)(4); (see also Ex. C to Missaelides Decl., at 5 (Medical Necessity

21 Criterion #4)). Each participant’s IPC must also state the individualized ADHC services that the

22 participant’s condition or conditions require each day, and such services must be “designed to

23 maintain the ability of the participant to remain in the community and avoid emergency

24 department visits, hospitalizations or other institutionalization.” Cal. Welf. & Inst. Code

25 § 14526.1(d)(5); (see also Ex. C to Missaelides Decl., at 6 (Medical Necessity Criterion #5)).

26
27                                                          4

28   DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; STATEMENT OF INTEREST OF THE UNITED STATES
 1       B. Elimination of ADHC Under Assembly Bill 97

 2          On March 24, 2011, Governor Jerry Brown signed Assembly Bill 97 (Chapter 3, Statutes

 3 2011) (“AB 97”), which provides for the elimination of ADHC as an optional benefit under the

 4 California State Medicaid Plan. See Cal. Welf. & Inst. Code §§ 14589(b), 14589.5. On May 12,

 5 2011, Defendants submitted a State Plan Amendment (“SPA”) to the Centers for Medicare and

 6 Medicaid Services (“CMS”), requesting approval to eliminate ADHC effective September 1,
        4
 7 2011. (See Ex. K to Missaelides Decl.) CMS recently granted approval of this SPA,

 8 establishing September 1, 2011 as the effective date for the elimination of ADHC. (See Ex. A to
                            5
 9 Suppl. Missaelides Decl.)

10          Although AB 97 states that Defendants must implement a “short-term program” to

11 provide transition to alternative services for those beneficiaries impacted by the elimination of

12 ADHC, there is no requirement for this program to be implemented prior to the effective date of

13 the ADHC elimination. See Cal. Welf. & Inst. Code §§ 14589(b), 14589.5, 14590(a). Nor is

14 there any assurance that ADHC participants will not experience gaps in critical services that are

15 necessary to prevent their institutionalization. (See Missaelides Decl. ¶¶ 50-51.) AB 97 contains

16 no details as to how, when, or whether the impacted ADHC beneficiaries will receive appropriate

17 replacement services without gaps and/or reductions in care. See Cal. Welf. & Inst. Code.

18 § 14590(e).
19

20

21
     4
22  AB 97 calls for implementation of ADHC elimination on “the first day of the first calendar
   month following 60 days after the date the department secures all necessary federal approvals to
23 implement this section.” Cal. Welf. & Inst. Code § 14589.5(d).
     5
24   In the cover letter to the SPA approval, CMS Associate Regional Administrator Gloria Nagle
   notes that approval of the SPA “does not in any way address the State’s independent obligations
25 under the Americans with Disabilities Act or the Supreme Court’s Olmstead decision.” (Ex. A
   to Suppl. Missaelides Decl. at 1.)
26

27                                                        5

28 DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; STATEMENT OF INTEREST OF THE UNITED STATES
 1        III.    ARGUMENT
 2            A. Olmstead and the Integration Mandate
 3            Congress enacted the ADA in 1990 “to provide a clear and comprehensive national
 4 mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C.

 5 § 12101(b)(1). Congress found that “historically, society has tended to isolate and segregate

 6 individuals with disabilities, and, despite some improvements, such forms of discrimination

 7 against individuals with disabilities continue to be a serious and pervasive social problem.”

 8 42 U.S.C. § 12101(a)(2). For those reasons, Congress prohibited discrimination against
 9 individuals with disabilities by public entities:

10
              [N]o qualified individual with a disability shall, by reason of such disability, be
11            excluded from participation in or be denied the benefits of the services, programs,
              or activities of a public entity, or be subjected to discrimination by any such
12            entity.
13 42 U.S.C. § 12132.

14            As directed by Congress, the Attorney General issued regulations implementing title II,
                                                                                     6
15 which are based on regulations issued under section 504 of the Rehabilitation Act. See 42

16 U.S.C. § 12134(a); 28 C.F.R. § 35.190(a); Executive Order 12250, 45 Fed. Reg. 72995 (1980),

17 reprinted in 42 U.S.C. § 2000d-1. The title II regulations require public entities to “administer

18 services, programs, and activities in the most integrated setting appropriate to the needs of

19 qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). The preamble discussion of the

20 “integration regulation” explains that “the most integrated setting” is one that “enables

21

22    6
        In all ways relevant to this discussion, the ADA and Section 504 of the Rehabilitation Act are
23    generally construed to impose similar requirements. See Sanchez v. Johnson, 416 F.3d 1051,
      1062 (9th Cir. 2005); Zukle v. Regents of Univ. of California, 166 F.3d 1041, 1045 n. 11 (9th Cir.
24    1999). This principle follows from the similar language employed in the two acts. It also derives
      from the Congressional directive that implementation and interpretation of the two acts “be
25
      coordinated to prevent[ ] imposition of inconsistent or conflicting standards for the same
26    requirements under the two statutes.” Baird ex rel. Baird v. Rose, 192 F.3d 462, 468-9 (4th Cir.
      1999) (citing 42 U.S.C. § 12117(b)) (alteration in original).
27                                                     6

28   DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; STATEMENT OF INTEREST OF THE UNITED STATES
 1 individuals with disabilities to interact with nondisabled persons to the fullest extent possible….”
 1

 2
 2 28 C.F.R. Pt. 35, App. A at 572 (2010) (addressing § 35.130).
 3
 3           Twelve years ago, the Supreme Court applied these authorities and held that title II
 4
 4 prohibits the unjustified segregation of individuals with disabilities. Olmstead, 527 U.S. at 596.
 5
 5 There, the Court held that public entities are required to provide community-based services to
 6
 6 persons with disabilities when (a) such services are appropriate; (b) the affected persons do not
 7
 7 oppose community-based treatment; and (c) community-based services can be reasonably
 8
 8 accommodated, taking into account the resources available to the entity and the needs of others
 9
 9 who are receiving disability services from the entity. Id. at 607.
10
10           To comply with the ADA’s integration requirement, a state must reasonably modify its
11
11 policies, procedures, or practices when necessary to avoid discrimination. 28 C.F.R.
12
12 § 35.130(b)(7). The obligation to make reasonable modifications may be excused only where a

13 state demonstrates that the requested modifications would “fundamentally alter” the programs or
13

14
14 services at issue. Id.; see also Olmstead, 527 U.S. at 604-07.
15
15       B. Plaintiffs Satisfy the Requirements for a Preliminary Injunction
16
16           “A plaintiff seeking a preliminary injunction must establish [(1)] that he is likely to
17
17 succeed on the merits, [(2)] that he is likely to suffer irreparable harm in the absence of
18
18 preliminary relief, [(3)] that the balance of equities tips in his favor, and [(4)] that an injunction
19 is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, ___ (slip op. at
19

20
20 10), 129 S. Ct. 365, 374 (2008); see also Brantley, 656 F. Supp. 2d at 1169; Cota, 688 F. Supp.
21
21 2d at 991.
22
22               1. Plaintiffs Are Likely to Prevail On Their ADA Claim
23
23
             Plaintiffs have submitted substantial evidence of the devastating effects that Defendants’
24
24
     planned implementation of AB 97 will have, including placing at risk of institutionalization
25
25
     thousands of individuals with disabilities who rely on ADHC to remain in the community. The
26
26
27
27                                                        7
28
28 DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; STATEMENT OF INTEREST OF THE UNITED STATES
 1 first two prongs of Plaintiffs’ Olmstead claim do not appear to be in dispute – Defendants have

 2 determined that community-based care is appropriate and Plaintiffs do not oppose receiving

 3 services in the community. Plaintiffs also satisfy the last prong – that the modification to

 4 Defendants’ policies they request is reasonable and would not fundamentally alter the State’s

 5 programs. Plaintiffs request that the Defendants not terminate ADHC services until adequate

 6 services are provided to replace the care Plaintiffs need in order to avoid institutionalization, and

 7 that Defendants transition the Plaintiffs from ADHC to alternative services in a way that does not

 8 place Plaintiffs at risk of institutionalization. (Pls.’ Br. at 1.) This request will not

 9 fundamentally alter the State’s programs, because the State will face increased expenditures from

10 Plaintiffs’ more frequent hospitalizations, emergency room visits, and entry into long-term care

11 facilities in the absence of medically necessary ADHC or equivalent services.7

12                   a.      Plaintiffs have Article III standing to assert a violation of the ADA’s
                             Integration Mandate
13

14            Defendants argue that Plaintiffs lack standing for a preliminary injunction because

15 plaintiffs “fail to establish that they will imminently have no alternative but to submit to

16 institutionalization solely because a transition program, or an adequate one, is not yet in place.”

17 (Defs.’ Opp. to Pls.’ Mot. for Prelim. Inj., ECF No. 267, (“Defs.’ Br.”) at 19-20.) This argument

18 is without merit and conflates the requirements of standing with the merits of Plaintiffs’ ADA
19 claims. It is well settled that to establish standing, a litigant must show (1) that he suffered actual

20 or threatened injury; (2) that the condition complained of caused the injury or threatened injury,

21 and (3) that the requested relief will redress the alleged injury. See Lujan v. Defenders of

22 Wildlife, 504 U.S. 555, 560-61 (1992). When examining whether plaintiffs suffered actual or

23 threatened injury, the inquiry focuses on whether the injury-in-fact is (1) “concrete and

24

25
      7
26  See pp. 19-21, infra, discussing increased costs of hospitalizations, emergency room visits, and
   entry into long term care facilities.
27                                                  8

28   DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; STATEMENT OF INTEREST OF THE UNITED STATES
 1 particularized,” and (2) actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Lujan, 504 U.S.

 2 at 560.

 3            Plaintiffs have standing because the loss of their ADHC services is concrete, actual and

 4 not hypothetical and thus this injury alone is sufficient to establish standing. See Cal. Pro-Life

 5 Council, Inc. v. Getman, 328 F.3d 1088, 1095 (9th Cir. 2003); United States v. Antelope, 395

 6 F.3d 1128, 1132 (9th Cir. 2005); see also Mental Disability Law Clinic v. Hogan, No. 06-cv-

 7 6320, 2008 WL 4104460, at *23-25 (E.D.N.Y. Aug. 26, 2008) (“the likely harm of another

 8 hospitalization and the fact that this harm could be avoided if [Plaintiff were to continue to

 9 receive existing services] is not too speculative or conjectural to preclude standing.”).

10 Defendants do not dispute that Plaintiffs will be terminated from the ADHC program because of

11 Defendants’ actions. Moreover, AB 97 and the promise of significantly reduced revenue have

12 already prompted ten ADHC centers to close, ending services to approximately 963

13 participants. (See Missaelides Decl. ¶ 78; Suppl. Missaelides Decl. ¶ 8; Ex. F. to Suppl.

14 Missaelides Decl..) The risk of institutionalization that directly results from this loss of services

15 provides a secondary injury grounding Plaintiffs’ standing. See pp. 10-13, infra.

16                   b.      Policies that place individuals with disabilities at serious risk of
                             institutionalization violate the ADA
17

18            Defendants argue that, in order to state a claim under the ADA’s integration mandate,

19 Plaintiffs must show that a public entity’s reduction or elimination of services will leave them

20 with “‘no choice’ but to submit to institutionalization in order to receive care necessary for the

21 preservation of their health or safety.” (Defs.’ Br. at 13.) This purported standard cannot be

22 squared with title II of the ADA and well-established precedent. As this Court and numerous

23 others have recognized, policies that place individuals with disabilities at serious risk of
                                                          8
24 institutionalization are discriminatory under the ADA.

25    8
     Defendants’ assertion that Plaintiffs have not stated a claim for relief under the ADA or
26 Rehabilitation Act because the ADA does not require the State to provide transition or
   replacement services, or to maintain a certain “level of services” is equally without merit. (See
27                                                   9

28   DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; STATEMENT OF INTEREST OF THE UNITED STATES
 1
 1            This Court has already concluded that “the risk of institutionalization is sufficient” to
 2 state a claim for violation of the ADA’s integration mandate. Brantley, 656 F. Supp. 2d at 1170;
 2

 3
 3 see also Cota, 688 F. Supp. 2d at 994-95. And the only Circuit Court of Appeals to directly
 4
 4 address this issue is in accord. See Fisher v. Oklahoma Health Care Auth, 335 F.3d 1175 (10th

 5 Cir. 2003).9 The plaintiffs in Fisher, like Plaintiffs in this case, received Medicaid-funded
 5

 6 medical care in the community. They argued that Oklahoma’s planned policy limiting the
 6

 7
 7 number of available medically necessary prescriptions covered in community-based settings,
 8
 8 while offering unlimited coverage to individuals in institutions, placed them at risk of
 9
 9 institutionalization. Id. at 1181-82. Because of the policy, they argued, they would remain in

10 their homes only “until their health ha[d] deteriorated” and “eventually [would] end up in a
10

11 nursing home.” Id. at 1181-82,1185. The Tenth Circuit agreed that the plaintiffs had a
11

12 cognizable claim under the ADA and noted that “nothing in the Olmstead decision supports a
12

13 conclusion that institutionalization is a prerequisite to enforcement of the ADA’s integration
13

14 requirements.” Id. at 1181.
14

15
15            Defendants attempt to avoid the core holding of Fisher – that a serious risk of
16 institutionalization is sufficient to state a claim under the ADA – by arguing that this Court
16

17 misread Fisher in adopting its holding in Brantley. (See Defs.’ Br. at 14.) Defendants assert that
17

18
18
   Defs.’ Br. at 11-12.) While the ADA does not mandate what specific services a state must offer,
19
19 it does require states to refrain from adopting policies or engaging in practices that discriminate,
   including those that will render individuals at risk of institutionalization. See Fisher v.
20
20 Oklahoma Health Care Auth., 335 F.3d 1175, 1181 (10th Cir. 2003); Brantley, 656 F. Supp. 2d
   at 1175; Cota, 688 F. Supp. 2d at 994-95.
21
21
      9
22
22       The question whether institutionalization is a prerequisite to establishing a violation of Title
      II’s integration mandate is currently pending in this Circuit in two cases addressing the
23
23    application of Olmstead to changes in eligibility criteria for community-based services for
      persons with disabilities. See Oster v. Wagner, No. 09-17581 (9th Cir. filed Nov. 18, 2009), and
24
24    Cota v. Maxwell-Jolly, No. 10-15635 (9th Cir. filed Mar. 24, 2010). The United States filed
25    amicus briefs in both Oster and Cota arguing, inter alia, that neither institutionalization, nor the
25
      risk of “imminent” institutionalization, is a prerequisite to establishing a violation of Title II’s
26
26    integration mandate.

27
27                                                         10

28
28   DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; STATEMENT OF INTEREST OF THE UNITED STATES
 1 to state a claim for violation of the integration mandate a plaintiff must show that he has “no
  1
  1
 2 choice” but to enter an institution to obtain needed care. (See id.) 10 In support of this
  2
  2
 3 conclusion, Defendants can only cite to a single decision from a district court in Washington,
  3
  3
 4 which outlines the purported “no choice” standard. See M.R. v. Dreyfus, 767 F. Supp. 2d
  4
  4
 5 1149,1168-70 (W.D. Wash. 2011), appeal docketed, No. 11-35026 (9th Cir. Feb. 10, 2011). The
  5
  5
 6 court’s decision in M.R., however, is a flawed interpretation of the integration mandate and
  6
  6
 7 cannot be squared with title II of the ADA and existing precedent.
  7
  7
 88
  8          Neither the ADA nor the integration regulation applies solely to institutionalized persons,
 9 or those having “no choice” but institutionalization. On the contrary, both protect “qualified
  9
  9
10 individuals with disabilities.” 28 C.F.R. § 35.130(d); accord 42 U.S.C. § 12132. Indeed, the
 10
 10
11 Tenth Circuit in Fisher explicitly concluded that, under Olmstead, those “imperiled with
 11
 11
12 segregation” or “threaten[ed]” with “segregated isolation” by reason of a change in state policy
 12
 12
13 may bring a challenge to that policy under the ADA without first submitting to
 13
 13
14 institutionalization. 335 F.3d at 1181-82. That language does not suggest that beneficiaries must
 14
 14
15 be put in a position where they have “no choice” but to enter an institution to receive necessary
 15
 15
16 care. In fact, Defendants’ fictional “no choice” requirement appears nowhere in the Fisher
 16
 16
17 opinion, and this Court has already explicitly rejected such an interpretation of the ADA. See
 17
 17
18 Brantley, 656 F. Supp. 2d at 1170.
 18
 18
19
 19
 19          The standard suggested by Defendants would present beneficiaries who live in the
20 community and face a reduction in services sufficient to present a serious risk of their
 20
 20
21 institutionalization with a Hobson’s choice: to be able to vindicate their rights under Olmstead
 21
 21
22 and obtain services in the most integrated setting appropriate to their needs, they must either first
 22
 22
23
 23
 23
24 10
 24
 24    Defendants also argue that the Tenth Circuit applied the “serious risk of institutionalization”
25 standard only to its analysis of the likelihood of irreparable harm. (See Defs.’ Br. at 14, n. 12.)
 25
 25 This is an overly narrow reading of Fisher and was rejected by this Court in Brantley. See
26 Brantley, 656 F. Supp. 2d at 1170-71.
 26
 26
27
 27                                                         11
 27
28
 28 DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; STATEMENT OF INTEREST OF THE UNITED STATES
 28
 1 be institutionalized or continue to receive reduced services and wait for a sufficient decline in

 2 health so that institutionalization is necessary (i.e., so that they finally have “no choice”). As the

 3 Tenth Circuit correctly recognized, the integration mandate “would be meaningless if plaintiffs

 4 were required to segregate themselves by entering an institution before they could challenge an

 5 allegedly discriminatory law or policy that threatens to force them into segregated isolation.”

 6 Fisher, 335 F.3d at 1181. Thus, contrary to Defendants’ assertions, protection under the ADA is

 7 not limited to persons who are currently institutionalized, face “imminent institutionalization, or

 8 have “no choice” but to enter into an institution to obtain needed services.11

 9            Rather, the correct standard, as recognized by the vast majority of courts, is that a state
10 may be found liable under title II if it adopts a policy that places individuals with disabilities who

11 receive services from the state at serious risk of being institutionalized.12 This conclusion

12
      11
        Defendants argue that Plaintiffs’ IPCs do not support the contention that they would face a risk
13
      of indefinite placement in an institution. (See Defs.’ Br. at 16.) But even policies that risk
14    temporary institutionalization have been recognized as actionable under the ADA. See, e.g.,
      Marlo M. v. Cansler, 679 F. Supp. 2d 635, 638 (E.D.N.C. 2010) (granting preliminary injunction
15    where evidence demonstrated that plaintiffs would suffer regressive consequences if “even
      temporarily” returning to an institutional setting); Cruz v. Dudek, No. 10-23048, 2010 WL
16    4284955, at *3-7 (S.D. Fla. Oct 12, 2010) (granting preliminary injunction where state’s denial
      of community-based services placed plaintiffs at risk of institutionalization and state had
17
      proposed entry into nursing home for sixty days prior to providing community-based services)
18    (Order adopting Magistrate’s Report and Recommendation, Nov. 24, 2010); Haddad v. Arnold,
      ___F.Supp. 2d___, No. 3:10-00414, 2010 WL 6650335, at *17 (M.D. Fla. July 9, 2010)
19    (granting preliminary injunction after finding that the plaintiff would suffer irreparable injury if
      forced to enter a nursing home). Just as long-term isolation and segregation in an institutional
20    setting deprives an individual of his or her freedom to interact with others in the community,
      temporary unjustified institutionalization similarly disrupts the individual’s established life in the
21
      community, placing at risk the individual’s psychological, emotional, and physical wellbeing.
22    12
        See, e.g., V.L. v. Wagner, 669 F. Supp. 2d 1106, 1109 (N.D. Cal. 2009), appeal pending sub.
23    nom. Oster v. Wagner, No. 09-17581 (9th Cir. Nov. 18, 2009) (granting preliminary injunction to
      plaintiffs facing risk of institutionalization because of alterations to the In-Home Support
24    Services program); M.A.C. v. Betit, 284 F. Supp. 2d 1298, 1309 (D. Utah 2003) (holding that the
      “integration mandates of the ADA and § 504 apply equally to those individuals already
25    institutionalized and those at risk of institutionalization”); Makin v. Hawaii, 114 F. Supp. 2d
26    1017, 1034 (D. Haw. 1999) (individuals on waiting list for community-based services offered
      could challenge state’s administration of the program as violating title II’s integration mandate
27                                                       12

28   DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; STATEMENT OF INTEREST OF THE UNITED STATES
 1 follows from the principle that it is the elimination of services that have enabled beneficiaries to

 2 remain in the community, i.e., the failure to provide services in the most integrated setting

 3 appropriate to the needs of qualified individuals with disabilities, that violates the ADA. This is

 4 so regardless of whether the failure to provide the services causes an individual to be

 5 immediately hospitalized, or whether it causes an individual to decline in health over time and

 6 eventually enter an institution to seek necessary care. This conclusion is consistent with title II’s

 7 emphasis on ensuring that services are provided to persons with disabilities in the most

 8 integrated setting.
 9                  c.     Defendants’ elimination of ADHC services will place Plaintiffs and others
                           similarly situated at serious risk of institutionalization
10

11          Defendants’ plan to eliminate ADHC, without ensuring the availability of adequate

12 replacement services, will place Plaintiffs at serious risk of institutionalization in violation of the

13 ADA. Twice before, this Court has found that the mere reduction of available ADHC services

14 would place recipients of ADHC services at risk of institutionalization. See Brantley, 656 F.

15 Supp. 2d at 1171-72, 1176; Cota, 688 F. Supp. 2d at 997. Now Plaintiffs face the wholesale

16 elimination of ADHC services. The deficiencies in Defendants’ transition planning process “will

17 likely lead to gaps in services and result in harm to vulnerable participants in the form of, for

18 example, poor health outcomes, hospitalization, institutionalization in nursing facilities, and even

19
   because it “could potentially force Plaintiffs into institutions”); Ball v. Rogers, No. CV 00-67,
20 2009 WL 1395423, at *5 (D. Ariz. Apr. 24, 2009) (holding state liable under the ADA for failure
   to provide adequate services to avoid unnecessary institutionalization); Pitts v.Greenstein, No.
21
   3:10-cv-00635, 2011 WL 1897552, at *3 (M.D. La. May 18, 2011) (denying defendants motion
22 for summary judgment in part because defendants’ planned reduction in the number of available
   weekly personal care hours “plainly violates the ADA by creating a greater risk of
23 institutionalization.”); Hiltibran v. Levy, No. 2:10-cv-04185, 2010 WL 6825306, at *4-5 (W.D.
   Mo. Dec. 27, 2010) Hiltibran v. Levy, No. 2:10-cv-04185, 2011 WL 2534332, at *7 (W.D. Mo.
24 June 24, 2011); (Opinions granting plaintiffs’ motion for preliminary injunction and motion for
   summary judgment in after finding that the defendants policy not to provide necessary
25
   incontinence supplies placed individuals at risk of institutionalization in violation of the ADA.)
26

27                                                       13

28 DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; STATEMENT OF INTEREST OF THE UNITED STATES
 1
 1 death.” (Decl. of Kathleen Wilber, ECF No. 257 (“Wilber Decl.”) ¶ 7.B.) As this Court
 2
 2 previously found, “even temporary gaps in services would present serious consequences for
 3
 3 Plaintiffs and place them at great risk of being institutionalized.” Brantley, 656 F. Supp. 2d at
 4
 4 1174.
 5
 5          Plaintiffs have submitted declarations from six experts, and numerous ADHC providers,
 6
 6 as well as declarations from the individual participants or their caregivers, each of whom testifies
 7
 7 that the loss of ADHC services, without the provision of adequate replacement services to
 8
 8 substitute for those outlined in their IPCs, will place Plaintiffs and class members at serious risk
 9
 9 of institutionalization. For example, Named Plaintiff Allie Jo Woodard is an 81 year-old
10
10 recipient of ADHC services five days per week who has been diagnosed with bipolar affective
11
11 disorder, depression, diabetes, glaucoma, hypertension, seizure disorder, and osteoarthritis.
12
12 (Decl. of Linda Gaspard-Berry, ECF No. 239, (“Gaspard-Berry Decl.”) ¶¶ 3-4.) Both her
13
13 daughter (who is her primary caregiver) and her ADHC provider of eleven years attest that
14
14 without ADHC services Ms. Woodard will be unable to receive the daily skilled nursing
15
15 monitoring, and regular medical and rehabilitative care that help her avoid acute hospitalization
16
16 and long-term institutionalization. (Id. ¶¶ 17-18; Davis Decl. ¶ 30.) Named Plaintiff Esther
17
17 Darling is 74 years old and has been diagnosed with congestive heart failure, diabetes, post-
18
18 stroke paralysis affecting her left side, atrial fibrillation, incontinence, edema, depression,
19
19 hearing loss, and other disabilities. (Decl. of Esther Darling, ECF No. 231, (“Darling Decl.”) ¶¶
20
20 4, 6; Decl. of Jeffrey Yee, M.D., ECF No. 258, (“Yee Decl.”) ¶ 11) She lives alone in her
21
21 apartment but receives some daily assistance from a personal care worker through the State’s In-
22
22 Home Supportive Services (“IHSS”) program. (Darling Decl. ¶ 8) In addition, she has attended
23
23 the Yolo Adult Day Health Center for the last 14 years, and currently attends five days per week.
24
24 (Id. ¶ 3.) The Center’s Medical Director, who has been Ms. Darling’s physician for more than
25
25 twenty years and who helped draft her current IPC, attests that without ADHC she will not be
26
26 able to remain safely in her home. (Yee Decl. ¶ 15). He states that daily monitoring by a
27                                                     14
27
28
28   DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; STATEMENT OF INTEREST OF THE UNITED STATES
 1
 1 qualified nurse, which she receives at the ADHC, is necessary to assess changes in her condition,
 2
 2 and that an IHSS worker is not qualified to perform these tasks. (Id.)
 3
 3           The impact of Defendants’ actions on other Plaintiffs will be similarly devastating. (See

 4 Decl. of Gary Steinke, ECF No. 254 (“Steinke Decl.”) ¶ 27; McCloud Decl. ¶ 39; Decl. of Gilda
 4

 5 Garcia, ECF No. 237 (“Garcia Decl.”) ¶ 18; Decl. of Vitta Perelman, ECF No. 249 ¶¶ 14-15
 5

 6 (Gilda Garcia’s risk of acute hospitalization and institutionalization); Nolcox Decl. ¶¶ 33-34;
 6

 7 Decl. of William I. Gardner, ECF No. 238 (“Gardner Decl.”) ¶ 17 (Ronald Bell’s risk of
 7

 8
 8 placement in a nursing facility); Gardner Decl. ¶¶ 18-19; Decl. of Dennis Arnett, ECF No. 227

 9 (“Arnett Decl.”) ¶ 18; Regalia Decl. ¶¶ 53-54 (Wendy Helfrich’s risk of institutional placement);
 9

10 Steinke Decl. ¶ 29; Behr Decl. ¶¶ 27, 36; Decl. of Jessie Jones, ECF No. 243 (“Jones Decl.”) ¶
10

11 10; Decl. of Helene Philips, ECF No. 250 (“Philips Decl.”) ¶ 14 (Jessie Jones would have to
11

12
12 enter a nursing facility without appropriate services); Toth Decl. ¶ 49; Gardner Decl. ¶ 23 (Raif
13
13 Nasyrov would have to enter a nursing facility without appropriate services); Decl. of Cordula

14 Dick-Muehlke ECF No. 233 (“Dick-Muehlke Decl.”) ¶¶ 33-34; Steinke Decl. ¶¶ 21-25; Toth
14

15
15 Decl. ¶ 68; McCloud Decl. ¶¶ 43, 52; Puckett Decl. ¶¶ 46-48; Myers-Purkey Decl. ¶¶ 38-44;
16
16 Regalia Decl. ¶¶ 29-31, 56-58; Nolcox Decl. ¶¶ 22, 35-37; Davis Decl. ¶¶ 36-40; Behr Decl. ¶¶

17 34, 36; Houghton Decl. ¶ 21-24 (Class Members’ risks of institutionalization)).
17

18
18           Defendants allege that they are developing a “short-term plan” to transition the
19
19 approximately 35,000 ADHC program participants to existing Medi-Cal services by September

20 1, 2011.13 Even assuming that ADHC participants or their proxies could locate, contact, apply
20

21
21 to, be assessed for medical necessity determinations by, and admitted to these hypothetical
22
22   13
     The 2011-2012 budget for the State of California, signed into law on June 30, 2011,
23
23 appropriates $85 million to fund ADHC transition assistance. See Budget Act of 2011, Senate
   Bill 87, enrolled June 28, 2011, Item 4260-101-0001 (13); Ex. H to Hendrickson Decl,
24
24 “Governor’s Objections to appropriations contained in Senate Bill 87.”) This one-time
25 appropriation is designed to support transition of ADHC beneficiaries to alternative Medi-Cal
25
   services but contains no instructions as to what services, if any, might be actually available
26 before ADHC services are eliminated.
26
27
27                                                       15

28
28 DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; STATEMENT OF INTEREST OF THE UNITED STATES
 1 alternatives before the September 1st termination date, existing Medi-Cal services are likely
                                                                                                      14
 2 insufficient to replace the ADHC services that are prescribed in recipients current plans of care.

 3 For example, IHSS, which many of the Plaintiffs and other ADHC participants already receive,

 4 is a personal care program and does not offer the skilled nursing services, physical, speech, or

 5 occupational therapies, or sufficient medication management and supervision currently provided

 6 at their ADHC centers. (See Yee Decl. ¶ 15; Darling Decl. ¶ 8; Myers-Purkey Decl. ¶ 22;

 7 Missaelides Decl. ¶¶ 89-90.) The Multi-Purpose Senior Services Program (MSSP) is a

 8 Medicaid home and community-based waiver that provides care coordination services to a

 9 limited number of participants, is only available to individuals over the age of 65, is not available

10 in all areas of the state, and has a waiting list. (See Missaelides Decl. ¶ 91; Ex. N to Missaelides

11 Decl. at PL 00907.) Other purported alternative programs currently in existence have waiting

12 lists, and obtaining these services after ADHC is eliminated will be difficult, if not impossible

13 for many Plaintiffs and class members. (See Missaelides Decl. ¶ 81; Wilber Decl. ¶ 9.) As one

14 of Plaintiffs’ experts attests

15            [t]hese services are administered by a variety of different agencies and
              departments, have varying eligibility requirements and assessment procedures,
16            and may be limited in their availability in terms of the type and amount of
              services provided. Other services may have capped enrollment or limited or no
17            availability in certain geographic locations. Some services are at capacity and
              currently rely on waiting lists.
18

19    (Wilber Decl. ¶ 11.)

20

21
      14
22   (See Dick-Muehlke Decl. ¶¶ 21-23, 26-30; Decl. of Megan Elliott, ECF No. 235 (“Elliott
   Decl.”) ¶¶ 22-24; Decl. of Joseph Hafkenschiel, ECF No. 240 ¶12-18, 20-28, 31; Missaelides
23 Decl. ¶¶ 80-92; Wilber Decl. ¶¶ 7, 9, 11-19, 22; Yee Decl. ¶¶ 15, 18-19; Behr Decl. ¶¶ 30-35;
   Davis Decl. ¶¶ 24-29, 31-35; Houghton Decl. ¶¶ 16-20; McCloud Decl. ¶¶ 21-26, 28, 40-51;
24 Myers Purkey Decl. ¶¶ 14, 21-24, 28, 34-35, 37, 39-40; Nolcox Decl. ¶¶ 16-22, 34; Puckett Decl.
   ¶¶ 17, 22-34, 41-43,45; Regalia Decl. ¶¶ 20-28, 36, 39, 44, 46, 55; Toth Decl. ¶¶ 30-41, 50-51,
25
   58-60.)
26

27                                                         16

28   DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; STATEMENT OF INTEREST OF THE UNITED STATES
 1            Indeed, Defendants have submitted scant evidence demonstrating concrete and realistic

 2 efforts to locate and identify alternative services and actually ensure that such services will be

 3 provided to the highly medically acute population of individuals currently receiving ADHC

 4 services when those services terminate on September 1, 2011. (See Defs.’ Br. at 2-3.) Rather,

 5 Defendants’ efforts undertaken thus far amount to pre-planning, instead of actual implementation

 6 of effective transitions. For example, there are “ongoing meetings” between five state agencies,

 7 whose staff are “reaching out to local partners … to inform them of the pending benefit

 8 elimination so that they can begin to prepare for possible referrals…. provid[ing] other

 9 departments with a contact list of thirty-three Area Agencies on Aging15 and a map identifying

10 each catchment area,” and developing “[c]ounty-level community resource sheets identifying

11 key local agencies … and their contact information.” (Decl. of Jane Ogle, ECF No. 274, (“Ogle

12 Decl.”) ¶ 12-13; see also Ex. B to Ogle Decl, “Draft Community Resource Guide for Los

13 Angeles City.”) Staff from DHCS and California Department of Aging (“CDA”) are reviewing

14 the IPCs of current ADHC participants who receive four or five days per week of ADHC

15 services in an attempt to “understand[] the most prevalent diagnoses,” which will allegedly aid

16 Defendants with “identify[ing] the community resources that may be able to provide an

17 alternative to ADHC services” and “communicating the results to state and local agencies with

18 requests that these results are reviewed to determine the availability of needed services.” (See
19 Ogle Decl. ¶ 15.) (emphasis added)16 And less than sixty days before all ADHC services will

20
      15
      Area Agencies on Aging receive federal, state and local funds to contract with local
21
   organizations for service to seniors. (Ogle Decl. ¶ 13.) California law identifies these agencies as
22 the local units in California to administer programs in compliance with the federal Older
   Americans Act and applicable regulations. (Id.)
23 16
      Defendants assert that a “large proportion” of the IPCs they have reviewed thus far indicate the
24 necessity for “medication management” and assert that such services are available through the
   IHSS program, hypothesizing that “many participants may be eligible for additional IHSS
25 hours.” As noted supra, p. 17, Plaintiffs’ experts have identified a number of reasons why IHSS

26 will likely be insufficient to provide the medication management and supervision necessary to
   prevent acute hospitalization and long-term institutionalization of current ADHC recipients.
27                                                  17

28   DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; STATEMENT OF INTEREST OF THE UNITED STATES
 1 abruptly end, Defendants cannot point to any viable plans to either expand existing services or

 2 create new services to replace the essential panoply of services provided on-site at ADHC

 3 centers.17

 4            Rather than undertaking concrete and extensive efforts to actually ensure ADHC
 5 recipients are not imperiled with declining physical and mental health and institutionalization,

 6 Defendants instead attempt to shift their responsibilities under the ADA to other State and local

 7 agencies, and, largely, to ADHC providers, even as those providers are on the verge of shutting

 8 their doors. The Defendants have not provided specific instructions to ADHC providers

 9 regarding discharge planning, availability of replacement services, timeliness, monitoring post-

10 discharge, or funding of the transition process.18 This Court previously found such an approach

11 to meeting the State’s obligations under title II to be “cavalier.” Brantley, 656 F. Supp. 2d at

12 1174. Indeed, Defendants “bear the burden of ensuring more than a ‘theoretical’ availability” of

13 alternative services to meet needs outlined in Plaintiffs IPCs in order to satisfy Defendants’

14 obligations under the ADA. Id; see also Ball v. Rodgers, No. 00-cv-67, 2009 WL 1395423, at *5

15

16
      17
      On June 15, 2011, the California Legislature passed a bill that would require DHCS to submit
17 to CMS by September 1, 2011 an application to implement a new home and community-based

18 waiver program called the Keeping Adults Free from Institutions (“KAFI”) program. (See
   Suppl. Missaelides Decl. ¶ 7; Ex. E to Suppl. Missaelides Decl. “Assembly Bill 96.”) If signed
19 into law, the program would utilize ADHC centers to provide a “well-defined scope of medical,
   behavioral health, and social services” for Medi-cal beneficiaries who have been assessed to be
20 at risk of institutionalization. (Ex. E to Suppl.Missaelides Decl.) As of July 12, 2011, this
   program has not been signed into law. (Suppl. Missaelides Decl. ¶ 7).
21
      18
22      (See Toth Decl., Ex. B, “ADHC Program Updates” at PL00912 (letter informing providers of
      their responsibilities); Missaelides Decl., Ex. I, at 5: 2-6 (provider responsibilities); 5:10-13;
23    18:14-23; 20:3-7; 27:19-27 (lack of information on viability of alternative services,); 8:1-6;
      13:11-14; 28:6-16-19; 30:9-13 (lack of DHCS assistance for transition,); 6:7-8; 13:13-14; 19: 12-
24    14 (lack of specificity regarding transition process); 14: 8-15; 22:13-18 (lack of information
      about timing and availability of KAFI program, ); 6:22-24; 8: 2-6 (lack of information regarding
25    additional funding); Wilber Decl. ¶¶ 7.C, 21 (lack of information regarding a mechanism to
26    monitor (1) whether participants actually receive adequate alternative services; and (2) the safety
      of discharged participants)).
27                                                       18

28   DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; STATEMENT OF INTEREST OF THE UNITED STATES
 1 (D. Ariz. April 24, 2009) (state defendants violated title II’s integration mandate because their
 1

 2 “failure to provide adequate services to avoid unnecessary gaps in service and institutionalization
 2

 3 was discriminatory.”)
 3

 4
 4                  d.     The request that the implementation of AB 97 occur in a manner that
 5                         minimizes disruptions in care that put Plaintiffs and others similarly
 5
                           situated at risk of entry into costly institutional settings is reasonable and
 6
 6                         does not fundamentally alter Defendants’ overall program of services

 7
 7           It is entirely reasonable, and not a fundamental alteration of the Defendants’ programs,
 8
 8 for Plaintiffs to request that the State, which is undertaking a dramatic elimination of a critical
 9
 9 program for one of California’s most vulnerable populations, ensure that the service alteration
10
10 does not place individuals at risk of institutionalization in violation of the ADA.
11
11           Hastily terminating ADHC services without ensuring that sufficient alternative services
12
12 are provided will cost the State more money, despite AB 97’s purpose to address the State’s
13
13 budget deficit. Defendants ask this Court to rely solely on the Legislature’s belief that
14
14 discontinuing ADHC would save the State money, and entirely disregard evidence that the
15
15 elimination of ADHC services would cost the State $51 million more than it saves in the first
16
16 year alone, due to increased hospitalizations and placements in nursing facilities. (See Defs.’ Br.
17
17 at 8; Ex. B to Auerbach Decl., The Lewin Group, “Projected Economic Impact of Eliminating
18
18 California’s Medi-Cal Adult Day Health Care Program” (“Lewin Study”), at 1.) And
19
19 Defendants have not offered any analysis of the expense involved with former ADHC
20
20 participants’ increased utilization of alternative home and community-based services, if any such
21
21 services are in fact available. (See Decl. of Leslie Hendrickson, PhD, ECF No. 287,
22
22 (“Hendrickson Decl.”) ¶ 40.)
23
23           Instead, Defendants’ fundamental alteration argument rests primarily upon the
24
24 unsupported and incorrect assertion that federal financial participation would necessarily be
25
25 unavailable to the State for continuing ADHC services in the short term. (See Defs.’ Br. at 13,
26
26 17-18). Nothing in federal Medicaid law prohibits the State from requesting, through another
27
27                                                       19

28
28 DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; STATEMENT OF INTEREST OF THE UNITED STATES
 1 State Plan Amendment to CMS, to alter or restore the ADHC service as a Medi-Cal benefit, or

 2 delay the effective date of the State’s approved State Plan Amendment removing ADHC as a

 3 covered service.19 In fact, CMS has already expressed its willingness to consider such an

 4 amendment. (See Ex. D to Gershon Decl., “Jul. 12, 2011 Letter from CMS to Elissa Gershon.”)

 5 And CMS has indicated in numerous communications that it will work with states to assist them

 6 in meeting their independent obligations under title II of the ADA and Olmstead.20 Other Courts

 7 have held that requiring a state to seek to alter or amend services reimbursable by CMS would

 8 not be a fundamental alteration. See, e.g. Radaszewski ex rel. Radazewski v. Maram, 383 F.3d

 9 599, 611 (7th Cir. 2004) (requiring the state to modify the services provided via its waiver

10 program need not be a fundamental alteration); Grooms v. Maram, 563 F. Supp. 2d 840, 857

11 (N.D. Ill. 2008) (requiring that the state amend its waiver application in order to continue to

12 provide the level of services plaintiff required to remain living in the community would not be a

13 fundamental alteration).

14            That the State is experiencing a budget deficit does not exculpate it from complying with
15 the Olmstead integration mandate. Fisher, 335 F.3d at 1183 (“that [a state] has a fiscal problem,

16 by itself, does not lead to an automatic conclusion” that providing the community services that

17 plaintiffs seek would be a fundamental alteration). Further, “[i]f every alteration in a program or

18 service that required the outlay of funds were tantamount to a fundamental alteration, the ADA’s
19 integration mandate would be hollow indeed.” Fisher, 335 F.3d at 1183; see also Pennsylvania

20
      19
      See State Medicaid Manual, § 13026 (outlining process for approving State Plan Amendments
21 and reserving authority for the CMS Administrator to determine that a previously approved plan

22 no longer meets the requirements for approval) available at:
   http://www.cms.gov/Manuals/PBM/itemdetail.asp?filterType=none&filterByDID=-
23 99&sortByDID=1&sortOrder=ascending&itemID=CMS021927&intNumPerPage=10
      20
24   See, e.g. State Medicaid Director Letters – No. 10-008: “Community Living Initiative” (May
   20, 2010), No. 01-007: “Olmstead Update No. 5” (Jan. 10, 2001), No. 01-006: “Olmstead Update
25 No. 4” (Jan. 10, 2001), “Olmstead Update No. 3” (Jul. 25, 2000), “Olmstead Update No. 2” (Jul.

26 25, 2000), “The recent Supreme Court Decision in Olmstead v L.C. , 119 S. Ct. 2176 (1999)”
   (Jan. 14, 2000), available at: http://www.cms.gov/SMDL/SMD/list.asp
27                                                20

28   DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; STATEMENT OF INTEREST OF THE UNITED STATES
 1 Protection and Advocacy, Inc. v. Pennsylvania Dept. of Pub. Welfare, 402 F.3d 374, 380 (3d Cir.

 2 2005). Congress was aware that integration “will sometimes involve substantial short-term

 3 burdens, both financial and administrative,” but the long-term effects of integration “will benefit

 4 society as a whole.” Fisher, 335 F.3d at 1183, citing, H.R. Rep. No. 101-485, pt.3, at 50,

 5 reprinted in 1990 U.S.C.C.A.N. 445,773. Thus, Plaintiffs requested modification to

 6 Defendants’ planned elimination of the ADHC program is reasonable and will not fundamentally

 7 alter the Defendants’ programs.

 8            In sum, Plaintiffs have established that they are likely to succeed on the merits of their

 9 ADA and Rehabilitation Act claims.

10                2. Plaintiffs Will Suffer Irreparable Harm Absent a Preliminary Injunction
11
              As discussed above, the elimination of ADHC services under AB 97 and Defendants’ ill-
12
      conceived and poorly described short term transition plan put Plaintiffs at serious risk of
13
      unnecessary institutionalization, constituting irreparable harm. In enjoining prior reductions in
14
      available ADHC services, this Court held that “the reduction or elimination of public medical
15
      benefits is sufficient to establish irreparable harm to those likely to be affected by the program
16
      cuts.” Cota, 688 F. Supp. 2d at 997; Brantley, 656 F. Supp. 2d at 1176; see also, Beno v.
17
      Shalala, 30 F. 3d 1057, 1063-64, n. 10 (9th Cir. 1994). Further, this Court found that “[e]ach of
18
      the Plaintiffs [threatened with reduction of ADHC services] suffers from debilitating physical
19
      and/or mental conditions for which the availability of ADHC services is critical to ensuring that
20
      their tenuous physical and mental conditions remain stable, enabling them to remain in the
21
      community.” Brantley, 656 F. Supp. 2d 1176. This Court granted the Plaintiffs’ requested
22
      injunction, reasoning that,“[g]iven the tenuousness and complexities of their conditions, an
23
      interruption in their care, even if temporary, will have serious consequences for Plaintiffs.” Id;
24
      see also V.L. v. Wagner, 669 F. Supp. at 1112.
25
26

27                                                         21

28   DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; STATEMENT OF INTEREST OF THE UNITED STATES
 1            Courts have routinely recognized that the harm associated with institutionalization – even

 2 on a short term basis – is severe. See Long v. Benson, No. 08cv26, 2008 WL 4571903, at *2

 3 (N.D. Fla. Oct. 14, 2008) (unpublished) (granting a preliminary injunction based in part on the

 4 reasoning that forcing the individual to leave his community placement and enter a nursing home

 5 “will inflict an enormous psychological blow” and that “each day he is required to live in the

 6 nursing home will be an irreparable harm.”) (emphasis added); Marlo M., 679 F. Supp. 2d at 638

 7 (granting a preliminary injunction where plaintiffs established that they would “suffer regressive

 8 consequences if moved [to a nursing home], even temporarily.”) (emphasis added); Crabtree v.

 9 Goetz, No. 08-0939, 2008 WL 5330506, at *25 (M.D. Tenn. Dec. 19, 2008) (unpublished)

10 (granting a preliminary injunction enjoining state defendants from reducing available home

11 health care services and explaining that institutionalization “would be detrimental to [plaintiffs’]

12 care, causing, inter alia, mental depression, and for some Plaintiffs, a shorter life expectancy or

13 death.”); Haddad v. Arnold, No. 3:10-00414, 2010 WL 6650335, at *17 (M.D. Fla. July 9, 2010)

14 (granting preliminary injunction after finding that the plaintiff will suffer irreparable injury if

15 forced to enter a nursing home.)

16                3. The Balance of Hardships Weighs Heavily in Plaintiffs’ Favor and Granting
                     Plaintiffs’ Request for a Preliminary Injunction is in the Public Interest
17

18            The final two factors to be considered on a motion for preliminary injunction – the
19 balance of hardships and the public interest – may be viewed together. Brantley, 656 F. Supp. 2d

20 at 1177 (citing Independent Living Ctr. Of S. Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644, 657-58

21 (9th Cir. 2009), cert granted on other grounds, Douglas v. Independent Living Ctr. Of S. Cal.,

22 Inc., Nos. 09-958, 09-1158, 10-283 (Jan. 18, 2011). As this Court has recognized, “where the

23 issue concerns the proposed reduction in medical benefits to indigents due to budgetary

24 concerns, the Ninth Circuit has recognized that both the balance of hardships and public interest

25 favor plaintiffs.” Brantley, 656 F. Supp. 2d at 1177 (citing Independent Living Ctr. Of S. Cal.,
26 Inc., 572 F. 3d at 657-58).

27                                                         22

28   DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; STATEMENT OF INTEREST OF THE UNITED STATES
 1          Further, because the additional costs of providing institutional care is so high – estimated

 2 at $51 million – any financial hardships that Defendants may incur will likely be offset by the

 3 cost savings that accrue from avoiding unnecessary institutionalizations. (See Lewin Study at 5.)

 4 This Court has recognized that that “financial considerations attributable to [a] state's ‘fiscal

 5 crisis’ are outweighed by the ‘robust public interest in safeguarding access to healthcare for those

 6 eligible for Medicaid, whom Congress has recognized as the most needy in the country.’” Cota,

 7 688 F. Supp. 2d at 999 (citing Independent Living Ctr., 572 F. 3d at 657-58) (internal citations

 8 omitted); see also V.L., 669 F. Supp. 2d at 1122 (determining that the risk of institutionalization

 9 and inability to access necessary medical care harm to the beneficiaries facing reductions in

10 IHSS hours outweighs the Defendants’ budget considerations).

11          Lastly, there is a public interest in eliminating the discriminatory effects that arise from

12 segregating persons with disabilities into institutions when they can be appropriately placed in or

13 remain in community settings. As the Supreme Court explained in Olmstead, the unjustified

14 segregation of persons with disabilities can stigmatize them as incapable or unworthy of
                                   21
15 participating in community life. Olmstead, 527 U.S. at 600.

16        IV.        CONCLUSION

17          For the reasons stated above, the Court should grant Plaintiffs’ Motion for Preliminary
18 Injunction and enjoin the State from eliminating ADHC services unless and until adequate,
19 appropriate, and uninterrupted services are provided. With the Court’s permission, counsel for

20 the United States will be present at any upcoming hearings.

21 DATED: July 12, 2011

22

23
     21
24   See also Brief for the United States as Amicus Curiae Supporting Respondents at 16-17,
   Olmstead v, L.C., 527 U.S. 581 (1999) (No. 98-536) (1999 WL 149653) (“To be segregated is to
25 be misunderstood, even feared,” and “only by breaking down barriers between people can we
   dispel the negative attitudes and myths that are the main currency of oppression.”) (citing 136
26
   Cong. Rec. H2603 (daily ed. May 22, 1990) (statement of Rep. Collins).
27                                                  23

28 DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; STATEMENT OF INTEREST OF THE UNITED STATES
 1

 2

 3                                                      Respectfully submitted,

 4
   MELINDA HAAG                                         THOMAS E. PEREZ
 5 United States Attorney                               Assistant Attorney General
   Northern District of California
 6
                                                        SAMUEL R. BAGENSTOS
 7                                                      Principal Deputy Assistant Attorney General

 8                                                      ALISON BARKOFF
                                                        Special Counsel for Olmstead Enforcement
 9
                                                        Civil Rights Division
10

11

12 /s/ Ila Deiss__                                      /s/ Travis England
   ILA C. DEISS, NY SBN 3052909                         ALLISON J. NICHOL,
13 450 Golden Gate Avenue, Box 36055                    Chief
   San Francisco, California 94102                      KATHLEEN R. WOLFE,
14
   Telephone: (415) 436-7124                            Acting Special Legal Counsel
15 Facsimile: (415) 436-7169                            RENEE M. WOHLENHAUS
   Ila.deiss@usdoj.gov                                  Deputy Chief
16                                                      REGAN RUSH
                                                        Trial Attorney
17                                                      TRAVIS W. ENGLAND
18                                                      Trial Attorney

19                                                      Disability Rights Section
                                                        Civil Rights Division
20                                                      U.S. Department of Justice
                                                        950 Pennsylvania Avenue, N.W. - NYA
21                                                      Washington, D.C. 20530
22                                                      Telephone:     (202) 307-8987
                                                        Facsimile:     (202) 307-1197
23                                                      travis.england@usdoj.gov

24

25

26
27                                                         24
28   DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; STATEMENT OF INTEREST OF THE UNITED STATES

				
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