JAMES L. ROBART, District Judge.
Plaintiff Adam Dunakin is a 34-year-old man with a developmental disability, who has lived in nursing facilities for more than eight years. (Compl. (Dkt. # 1) ¶ 5.) He alleges that Defendants Kevin W. Quigley,
Before the court are three motions. Mr. Dunakin brings (1) a motion for class certification (Mot. for Cert. (Dkt. # 16)) and (2) a motion for partial summary judgment (PSJ Mot. (Dkt. # 17)). Defendants bring a motion for judgment on the pleadings and partial summary judgment (Rule 12(c) Mot. (Dkt. # 24)). The court has reviewed the parties' motions, all submissions filed in support of and opposition thereto, the balance of the record, and the applicable law. Being fully advised,
Mr. Dunakin filed his complaint on April 16, 2014. (See generally Compl.) The complaint enumerates six claims for relief. (See generally id.) Mr. Dunakin's first claim is based on Defendants' alleged violations of certain provisions of the NHRA. (Id. ¶¶ 33-34.) His second and third claims are based on alleged violations of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a). (Compl. ¶¶ 35-42.) His fourth claim alleges violations of certain provisions of Title XIX of the Social Security Act, 42 U.S.C. §§ 1396a(a)(8), 1396a(a)(10)(B)(i), 1396n(c)(2)(B). (Compl. ¶¶ 43-44.) His fifth and sixth claims seek declaratory and injunctive relief and are derivative of his first four claims. (See id. ¶¶ 45-48.) Mr. Dunakin brings these claims on behalf of himself and a putative class of similarly situated residents of privately-operated Medicaid-certified nursing facilities in Washington State who have intellectual disabilities or related conditions. (Id. ¶¶ 14-20.) Defendants filed an answer to Mr. Dunakin's complaint on May 8, 2014. (Answer (Dkt. # 8).)
Pursuant to the court's scheduling order (Sched. Ord. (Dkt. # 9)), Mr. Dunakin filed a motion for class certification on October 17, 2014 (see generally Mot. for Cert.), as well as a motion for partial summary judgment on the issue of the proper standard for PASRR screenings and evaluations (see generally PSJ Mot.). On November 10, 2014, Defendants filed a motion for dismissal on the pleadings of all of Mr. Dunakin's claims and for partial summary judgment on two portions of his fourth
In 1987, Congress passed the NHRA to end the practice of inappropriately placing individuals with intellectual disabilities and related conditions in nursing facilities without providing services for their unique needs. See Rolland v. Romney, 318 F.3d 42, 46 (1st Cir.2003). As directed by the NHRA, the Center for Medicaid and Medicare Services ("CMS") issued regulations to screen and assess individuals with intellectual disabilities and related conditions seeking admission to or residing in Medicaid-certified nursing facilities, including privately-operated nursing facilities. See Rolland v. Cellucci, 52 F.Supp.2d 231, 235 (D.Mass.1999); 42 C.F.R. § 483.100 et seq. This screening and assessment process is known as the Pre-Admission Screening and Resident Review ("PASRR") process. 42 U.S.C. § 1396r(e)(7)(A). Under the PASRR process, Medicaid recipients with intellectual disabilities and related conditions who are in or seek admission to nursing facilities must be screened and evaluated to determine whether they could be served in a community setting and require specialized services related to training, therapies, or other means of accomplishing improved functioning. See Romney, 318 F.3d at 46.
The NHRA requires that states accepting federal Medicaid funds have a screening plan, specifically a PASRR plan, to ensure that decisions to place individuals in nursing facilities are made appropriately. 42 U.S.C. § 1396r(e)(7)(A)(i); 42 C.F.R. § 483.104. The federal regulations developed under the NHRA require two levels of PASRR evaluations. Level I of the PASRR process requires that the State "identify all individuals who are suspected of having [an intellectual disability]" and who are being referred to a nursing home. 42 C.F.R. § 483.128(a). PASRR "Level II is the function of evaluating and determining whether [nursing facility] services and specialized services are needed." Id.
Within DSHS, the Developmental Disabilities Administration ("DDA") has responsibility for Washington State's PASRR program. See 42 C.F.R. § 483.100 ("The requirements of 42 C.F.R. §§ 483.100 through 483.138 governing the State's responsibility for ... PASRR ... of individuals with ... intellectual disability are based on section 1919(e)(7) of the Act"); (Hehemann Decl. (Dkt. # 28) ¶¶ 3-4.) DDA also provides services to individuals with developmental disabilities under state law. See RCW ch. 71A. The PASRR process and the process for determining whether an individual is eligible for state services from the DDA are separate processes, although both programs are administered through DDA. (See Manion Decl. (Dkt. # 27) ¶ 4.) In Washington, HCA is the designated "single state agency" for Medicaid purposes, and provides oversight of certain DSHS and DDA programs and functions. See RCW 74.04.050.
On September 25, 2014, DSHS described the PASRR process as it relates to individuals with intellectual disabilities or related conditions in guidance it issued to all Washington nursing facilities as follows:
(Hamburger Decl. (Dkt. # 21) Ex. D at 1 (bolding in original).) Defendants also state that if, upon review of a resident's file, it becomes apparent that no Level I screening was performed, or it was done incorrectly, then the nursing facility or the PASRR assessor should complete a new PASRR Level I screening and refer the resident for a PASRR Level II assessment, if indicated. (PSJ Resp. at 4 (citing Hehemann Decl. ¶ 6); see also Hehemann Decl. ¶ 10.)
On November 13, 2013, CMS issued to DSHS and HCA a notice of multiple PASRR violations with respect to 27 residents, whom DSHS transferred in 2011 from Lakeland Village Intermediate Care Facility, a state-operated Residential Habilitation Center ("RHC") for individuals with developmental disabilities, to the Lakeland Village nursing facility. (Kas Decl. (Dkt. # 20) ¶¶ 9-11, Ex. D.) Indeed, CMS found that DSHS had violated federal PASRR requirements thousands of times for just the 27 individuals involved in CMS's investigation. (Id.) CMS found that the residents of Lakeland Village had been transferred to the nursing facility without screening, evaluation, or the provision of specialized services. (See id. Ex. D.)
Since November 2013, Defendants have operated under a plan of "remediation" with CMS related to Defendants' state-operated Medicaid-certified nursing facilities. (See Hamburger Decl. Ex. A at 52:2-16, 146-49.) The "remediation" plan, however, does not include privately-operated Medicaid-certified nursing facilities. (See id.; see also id. Ex. C.) In a 2014 supplemental budget request, DSHS requested and obtained additional funding to remediate its PASRR program to comply with federal Medicaid requirements at state-operated DDA nursing facilities. (See generally id. Ex. C.) However, DSHS did not request additional funding for PASRR at privately-operated nursing facilities, in which approximately 300 people with developmental disabilities presently reside. (Id. at 06009150 ("These immediate steps to address the issues with the state-run RHC nursing facilities do not address the issue of the approximately 300 people with a developmental disability who are currently in community nursing facilities.").)
During the conduct of discovery in this lawsuit, Defendants' testimony or documentary evidence otherwise provided support for the following assertions by Mr. Dunakin concerning Defendants' compliance with federal PASRR requirements for residents of privately-operated nursing facilities:
According to Dr. Deborah Hill, a licensed psychologist and a member of the team of clinicians who evaluated Mr. Dunakin at Seattle Children's Hospital in 1995 and 1997, Mr. Dunakin's medical history indicates a diagnosis, prior to the age of 21, of muscular dystrophy, specifically fascio-scapulo-humeral muscular dystrophy ("FSHMD") and/or myotonic dystrophy. (Hill Decl. (Dkt. # 19) ¶¶ 3-5.) Accordingly, Dr. Hill opines that Mr. Dunakin has "a `related condition' to intellectual disability
Defendants, however, dispute this assessment. Dr. Christen A. Kishel, a clinical psychologist who works for DDA, testifies that she does "not see any document... that has an original diagnosing physician" indicating a diagnosis of FSHMD. (Kishel Decl. (Dkt. # 26) ¶ 10 at 4-5.) Dr. Kishel has little doubt that "Mr. Dunakin does indeed suffer from a congenital neuromuscular disorder as has been presumed by licensed physicians and by Dr. Hill...." (Id. ¶ 12.) However, Dr. Kishel believes that "without a specific diagnosis from an appropriate first-hand source ... it is impossible to conclude that Mr. Dunakin's neuromuscular condition `is known by reputable authorities to cause intellectual and adaptive skills deficits' as required by [Washington State regulations]."
Despite Defendants' present misgivings concerning Mr. Dunakin's diagnosis and the causes of his intellectual disabilities, there is no dispute that they previously determined that he was eligible for state services as a result of limitations in his intellectual and adaptive abilities. In 1999, Washington's Division of Developmental Disabilities ("DDD"), which is now known as DDA, determined that Mr. Dunakin was eligible for state services based on his diagnosis of muscular dystrophy and limitations in his cognitive and adaptive functioning as assessed in an evaluation called the ICAP. (Kishel Decl. ¶ 4; Hollinger Decl. (Dkt. # 18) ¶ 3; see also Hamburger Decl. Ex. J; Hill Decl. ¶ 10; Manion Decl. (Dkt. # 27) ¶ 8.) Indeed, while Mr. Dunakin lived at home with his mother, he received Medicaid Personal Care and employment-related services from DDA based on this 1999 assessment of eligibility. (Hollinger Decl. ¶ 3; see Hamburger Decl. Ex. I (attaching Rule 30(b)(6) deposition of DSHS employee Leslie Terpstra) at 43:7-44:1, 45:11-19, 46:12-47:9; Ex. J.)
Mr. Dunakin lived at home with his mother until he suffered a spinal injury in 2005. (Hollinger Decl. ¶ 2.) When he was discharged from the hospital in May 2006, he was sent to a Medicaid-certified privately-operated nursing facility. (Id.) From 2007, to the present, he has been a resident of Everett Care and Rehabilitation Center, which is such a facility. (Id.)
Individuals who are residents of nursing facilities may also be clients of DDA. (PSJ Resp. at 6.) However, because the nursing facility is generally in charge of residents' care, nursing facility residents generally do not receive DDA paid services and accordingly are placed in DDA's "no paid
Mr. Dunakin received a PASRR Level I screen related to his initial admission to a nursing facility on May 31, 2006. (Hamburger Decl. Ex. G.) His 2006 PASRR Level I form is undated, but appears on its face to have been sent via facsimile to DSHS on July 20, 2006. (Id.) Mr. Dunakin's PASRR Level I screen indicates that he has documented evidence of a developmental disability and that he has a history of a developmental disability with onset before the age of 22. (Id.) Significantly, Mr. Dunakin's 2006 PASRR Level I screen expressly states that a "Level II Evaluation is required." (Id.) DSHS, however, did not have a copy of Mr. Dunakin's 2006 Level I PASRR screen in its files, and Mr. Dunakin never received a Level II evaluation at that time. (See id. Ex. H at 28-29, 40 (attaching Rule 30(b)(6) Deposition of Scott Watling of DSHS).)
Mr. Dunakin received a second PASRR Level I screen in May 2008, a full year after he was transferred from his initial nursing facility to the Everett Rehabilitation and Care Center. (Id. Ex. M.) Mr. Dunakin's 2008 PASRR Level I screen directly contradicts his 2006 PASRR Level I screen. (Compare id. Ex. G with id. Ex. M.) Mr. Dunakin's 2008 PASRR Level I screen states that he does not have "documented evidence of a diagnosis of a developmental disability" and he has no "history of a developmental disability" in his past with onset before age 22. (Id. Ex. M.) This statement would also appear to be contrary to DDD's 1999 determination that Mr. Dunakin was eligible for state services for his developmental disabilities based on his diagnosis of muscular dystrophy and limitations in his cognitive and adaptive functioning. (See Hamburger Decl. Ex. J.) Further, his 2008 PASRR Level I screen indicates that his condition is so severe that he is unable to participate in specialized services. (Id.) DDA did not have a copy of this PASRR Level I screen in its files and only discovered it in Mr. Dunakin's file at his nursing facility after this lawsuit was filed. (Id. Ex. H at 40-41.)
In 2014, DDA was aware that Mr. Dunakin was one of its clients who had not received a Level II PASRR evaluation because he appeared on a list or report of DDA clients who were living in nursing facilities. (Hamburger Decl. Ex. H (Watling Dep.) at 64:9-65:7.) On April 28, 2014, after the present lawsuit was filed, DDA sent Mr. Scott Watling, a regional DSHS PASRR coordinator, to meet with Mr. Dunakin and conduct a PASRR Level II evaluation. (Id. at 12:10, 15:14-18:6; Teed Decl. Ex. F at PROD-000013 ("Scott Watling went out to meet with Adam Dunakin to complete a PASRR 2.").) At approximately the same time, DDA also directed Ms. Leslie Terpstra, a DDA eligibility review worker, to conduct a review of Mr. Dunakin's eligibility for DDA state services. (Id. Ex. I (attaching Rule 30(b)(6) Deposition of Leslie Terpstra of DSHS) at 12-13, 16-17.)
Although DDA notified Mr. Dunakin's mother of the eligibility review for DDA services (Hollinger Decl. ¶ 4), DDA did not notify Mr. Dunakin's attorneys of either the eligibility review or DDA's contact with Mr. Dunakin for purposes of conducting a PASRR Level II evaluation (Hamburger
When Mr. Watling reviewed Mr. Dunakin's file at the nursing facility, he discovered
Ms. Terpstra conducted Mr. Dunakin's DDA eligibility review by applying the same process and eligibility criteria that are applied to all individuals whose DDA eligibility is being assessed or reviewed. (Id. Ex. I at 91:21-93:12.) Ms. Terpstra conducted a review of Mr. Dunakin's file and spoke with Mr. Watling about Mr. Dunakin's nursing home records. (Id. at 18-22.) Based solely on a full-scale intelligence quotient ("FSIQ") score of 83 from 1997 that was in Mr. Dunakin's files, Ms. Terpstra determined that Mr. Dunakin was not eligible for DDA services. (Id. at 70:3-10.)
Although Ms. Terpstra concluded that Mr. Dunakin did not qualify for DDA services, she did not separately evaluate whether he was eligible for federal PASRR services. (Id. at 85:21-25.) Based on the determination that Mr. Dunakin's 1998 FSIQ score exceeded the intelligence quotient cut-off for DDA eligibility, everyone at DDA assumed that Mr. Dunakin was also ineligible for services under PASRR. (See id. Ex. E at 153:11-154:14 ("[W]e [DDA] believe that our state law matches federal law other than the one age portion with related condition. So if our intake eligibility people decided [Mr. Dunakin] was not eligible, we believe that would meet the federal definition as well."); Ex. H at 87:12-88:3; see also id Ex. H at 83:6-19; Teed Decl. Ex. F at PROD_000013 ("Adam was reviewed by our Intake and Eligibility Unit and found ineligible for DDA services. At this point, we have no services to offer and Adam does not qualify for a PASRR 2 review.").)
In a declaration dated November 10, 2014, Ms. Terry Heheman, DDA's PASRR Program Manager, testifies that as a result of CMS's investigation into DDA's PASRR practices at Lakeland Village, DDA began working closely with CMS in approximately January 2014, and has made changes to DDA's PASRR process statewide. (See Hehemann Decl. ¶ 5.) Ms. Hehemann testifies that DDA began expanding its enhanced PASRR process to privately-operated Medicaid-certified nursing facilities in approximately April 2014,
In their November 10, 2014, responsive memorandum, Defendants admit, consistent with Mr. Dunakin's position, that
(Hehemann Decl. ¶ 8 (italics added).)
Despite Ms. Hehemann's reassurance "that only the federal definition is being used" presently to determine PASRR eligibility for those with intellectual disabilities or related conditions, the revised PASRR Level II form she attaches to her declaration indicates otherwise. (See id. Ex. B at 3.) The PASRR Level II form that DDA recently re-designed to "enhance and refine the implementation of PASRR" continues to instruct DDA personnel to make determinations of "intellectual disability" or "related condition" using the State's criteria found in the Washington Administrative Code. (Id.) Specifically, the form for PASRR Level II evaluations states:
(Id.) This form is dated July 14, 2014 — more than four months after Defendants began expanding their enhanced PASRR process to privately-operated Medicaid-certified nursing facilities. (Id. ¶ 5; id. Ex. B.)
In addition to the foregoing, Mr. Dunakin points to additional evidence indicating that, despite Ms. Hehemann's assurances to the contrary, Defendants continued to utilize the state DDA eligibility requirements for PASRR screening and evaluations long after they began to apply their "enhanced PASRR process" to residents in privately-operated Medicaid-certified nursing facilities. For example, according to Ms. Hehemann's September 15, 2014, Rule 30(b)(6) deposition testimony, DDA was still utilizing, as of that date, the state standard for its PASRR reassessments that Defendants now acknowledge was incorrect:
(See Hamburger Decl. Ex. E at 82:16-83:1, 83:24; see also id. at 140:10-15 ("So then we explain that the federal and the state definitions are the same except for that age period for related condition, that ours is they have to have — the condition needs to have started before they were 18 and the federal definition says before they were 22."); id. at 154:5-9 ("[W]e believe that our state law matches federal law other than the one age portion with related condition. So if our intake eligibility people decided [Mr. Dunakin] was not eligible, we believe that would meet the federal definition as well.").) Thus, as of at least September 15, 2014, DDA was still operating on the understanding that the only difference between DDA's eligibility standard for state services and the federal PASRR standard was the age of onset. Yet, as of November 10, 2014, Defendants acknowledge that utilizing the state standard for PASRR evaluations was error. (See PSJ Resp. at 1, 7.)
Further, like Ms. Hehemann, Mr. Watling, the regional DSHS PASRR coordinator who was sent to evaluate Mr. Dunakin's PASRR eligibility on April 28, 2014, also understood that the only difference between the federal and state definitions was the age of onset. During his September 12, 2014, Rule 30(b)(6) deposition, Mr. Watling engaged in the following colloquy:
(Hamburger Decl. Ex. H at 87:12-88:3.)
Indeed, the form instructions to DDA staff concerning the federal PASRR standards (that Ms. Hehemann attaches to her declaration to demonstrate that DDA no longer utilizes the state eligibility standard for PASRR purposes) is dated October 31, 2014 — long after DDA began expanding its enhanced PASRR process to privately-operated Medicaid-certified nursing facilities in approximately April 2014, and only one month prior to DDA's target completion date for that upgrade. (Hehemann Decl. ¶ 5, Ex. C.) Thus, undisputed evidence indicates that for the majority of the time that DDA was expanding its revised PASRR process to privately-operated nursing facilities (from approximately April 2014 to DDA's target completion date of November 30, 2014), DDA was still applying a standard to its PASRR reassessments that it now acknowledges was in error.
The court now considers the parties' presently pending motions.
The court considers Defendants' Federal Rule of Civil Procedure 12(c) motion for dismissal on the pleadings first because if the court were to conclude that dismissal is appropriate, there would be no need for the court to consider any of the remaining motions. In this instance, however, the court determines that dismissal is appropriate only with respect to one part of Mr. Dunakin's claim under Title XIX of the Social Security Act. Although the court grants Defendants' motion to dismiss with respect to a portion of that claim, the court also grants Mr. Dunakin leave to amend his complaint.
Under Federal Rule of Civil Procedure 12(c), a party may move for judgment on the pleadings after the pleadings are closed. Judgment on the pleadings "is properly granted when, taking all the allegations in the pleadings as true, a party is entitled to judgment as a matter of law." Lyon v. Chase Bank USA, N.A., 656 F.3d 877, 883 (9th Cir.2011). The same standard governs a Rule 12(c) motion for dismissal as governs a Rule 12(b)(6) motion. Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir.1989). Specifically, to avoid dismissal, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Dismissal for failure to state a claim "is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011). In ruling on a motion to dismiss, a court may consider the pleadings, documents attached to the pleadings, and documents incorporated by reference in the pleadings. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.2003) (citing Van Buskirk v. CNN, 284 F.3d 977, 980 (9th Cir.2002)). The court has considered only these materials in ruling on Defendants' Rule 12(c) motion for dismissal on the pleadings.
Mr. Dunakin brings his claim for violations of the NHRA and its accompanying federal PASRR regulations under 42 U.S.C. § 1983. Defendants argue that this claim must be dismissed because a violation of PASRR regulations is not a cognizable claim under 42 U.S.C. § 1983. (Rule 12(c) Mot. at 8-14.) For the reasons stated below, the court disagrees.
Section 1983 imposes liability on anyone who, under color of state law, deprives a person "of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983; see also Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997). "[W]hether Congress intended to create a federal right" is the touchstone for determining whether a statutory violation may be enforced through 42 U.S.C. § 1983. Gonzaga Univ. v. Doe, 536 U.S. 273, 283, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002) (italics in original). In Blessing, the Supreme Court identified three issues to consider when deciding whether a particular statutory provision gives rise to a federal right: (1) whether Congress intended for the provision in question to benefit the plaintiff; (2) whether the plaintiff has demonstrated that the right protected by the statute is not so vague and amorphous that its enforcement would strain judicial competence; and (3) whether the statute unambiguously imposes a binding obligation
In Gonzaga, the Supreme Court clarified the first prong of the Blessing test by rejecting the notion that a plaintiff could enforce a statute "so long as the plaintiff [fell] within the general zone of interest that the statute [was] intended to protect." 536 U.S. at 283, 122 S.Ct. 2268. Instead, the Gonzaga court insisted that "it is rights, not the broader or vaguer `benefits' or `interests,' that may be enforced under the authority of [42 U.S.C. § 1983]." Id. (italics in original). To create a privately enforceable right, a statute must be "phrased in terms of the person benefited," rather than "focus on the person regulated." Id. at 284, 287, 122 S.Ct. 2268. However, once a plaintiff "demonstrates that a statute confers an individual right, the right is presumptively enforceable by § 1983." Id. at 284, 122 S.Ct. 2268.
Defendants assert that the statutory provision of the NHRA that contains the PASRR guidelines, specifically 42 U.S.C. § 1396r(e)(7), fails the first Blessing factor as clarified by the Supreme Court in Gonzaga. (Rule 12(c) Mot. at 8-14.) Defendants do not challenge the remaining two Blessing factors. (Rule 12(c) Reply (Dkt. # 42) at 4 ("It is only the first prong of ... [the Blessing] test, whether Congress intended to create enforceable rights, that is at issue in this case.").) Thus, the court's analysis is limited to the first factor.
In Joseph S. v. Hogan, 561 F.Supp.2d 280 (E.D.N.Y.2008), advocacy groups and mentally disabled individuals brought an action alleging that the state's mental health system had the effect of warehousing individuals with mental illness in highly restrictive nursing homes, in violation of the NHRA and the PASRR provisions found in 42 U.S.C. § 1396r(e)(7). The Joseph S. court considered the same issue presented here: whether the PASRR provisions of the NHRA confer individual rights upon the plaintiffs and meet the first Blessing prong in light of the refinements to that prong articulated by the Supreme Court in Gonzaga. Joseph S., 561 F.Supp.2d at 300. The court concluded that the PASRR provisions do confer such individual rights. Id. "Unlike the statutes in Gonzaga and Blessing, §§ 1396r(e)(7)(A) and (B) are directly concerned with `whether the needs of any particular person have been satisfied.'" Joseph S., 561 F.Supp.2d at 300 (citing Blessing, 520 U.S. at 343, 117 S.Ct. 1353, as quoted in Gonzaga, 536 U.S. at 288, 122 S.Ct. 2268). The court finds the analysis of the Joseph S. court to be comprehensive in its consideration of the first Blessing factor as refined by Gonzaga and to be persuasive as well as more fully discussed below.
Rights-creating language "confer[s] a right directly on a class of persons that include[s] the plaintiff in the case" rather than "for the benefit of the public at large." Cannon v. Univ. of Chicago, 441 U.S. 677, 690 n. 13, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), cited with approval in Gonzaga, 536 U.S. at 284 n. 3, 122 S.Ct. 2268. The provisions in the NHRA requiring a preadmission screening program include specific language referring to the persons benefitted: "[T]he state must have in effect a preadmission screening program, for making determinations ... described in subsection (b)(3)(F) of this section for ... mentally retarded individuals... who are admitted to nursing facilities...." 42 U.S.C. § 1396r(e)(7)(A)(i). Subsection 1396r(b)(3)(F)(ii) of Title 42 states, in turn, that the State must determine "prior to admission that, because of the physical and mental condition of the individual, the individual requires the level of
42 U.S.C. §§ 1396r(e)(7)(B)(ii)(I), (II). Although these provisions are phrased in terms of the responsibilities imposed upon the State, their purpose is to protect the rights of individuals.
In addition to the foregoing provisions, the PASRR requirements to offer specialized services, alternative placement, and notice of PASRR determinations also focus on the rights of individual residents who are beneficiaries of these services. See 42 U.S.C. § 1396r(e)(7)(C). Like the PASRR evaluation sections quoted above, these provisions also begin with a mandatory command: "[T]he State must meet the following requirements...." Id. The provision mandates:
42 U.S.C. §§ 1396r(e)(7)(C)(i)(I), (II), (IV).
Unlike the statutory provisions at issue in Gonzaga, which the Supreme Court found to be "two steps removed from the interests of [the individual plaintiffs]," Gonzaga, 536 U.S. at 287, 122 S.Ct. 2268, the PASRR provisions above directly impact individual nursing home residents because they determine whether the resident will be placed in a nursing facility and what services the individual will receive. Thus, 42 U.S.C. § 1396r(e)(7) places "an unmistakeable focus on the benefited class," which here is individuals with mental disabilities who have been or will be placed in nursing facilities. See Gonzaga, 536 U.S. at 284, 122 S.Ct. 2268. The PASRR provisions' mandate of individualized determinations, see 42 U.S.C. §§ 1396r(e)(7)(A), (e)(7)(B), (b)(3)(F)(ii), indicates that Congress intended to create "an individual entitlement to services," see Gonzaga, 536 U.S. at 281, 122 S.Ct. 2268, that would "give rise to individual rights," id. at 288, 122 S.Ct. 2268.
Further, despite Defendants' arguments to the contrary (see Rule 12(c) Reply at 56), Ninth Circuit precedent indicates that the fact that the statute is phrased in terms of requirements for a state plan does not foreclose a finding that the statute also gives rise to individual rights. In Watson v. Weeks, 436 F.3d 1152 (9th Cir. 2006), the Ninth Circuit held that the language in the Medicaid Act, 42 U.S.C. § 1396a(a)(10), which states that "[a] State plan for medical assistance must ... provide... for making medical assistance
Defendants are correct that the NHRA is a spending statute and that such statutes generally do not create enforceable rights. Gonzaga, 536 U.S. at 280-81, 122 S.Ct. 2268. The typical remedy for state noncompliance with federally imposed conditions in a spending statute is not a private cause of action for noncompliance but rather action by the federal government to terminate funds to the state. Ball v. Rodgers, 492 F.3d 1094, 1103-04 (9th Cir.2007). However, such statutes may create rights enforceable under § 1983 when "Congress speaks with a clear voice and manifests an unambiguous intent to confer individual rights." Id. at 1104 (quoting Gonzaga, 536 U.S. at 280, 122 S.Ct. 2268) (internal quotations and alterations omitted). In addition, when the remedial devices specified in the statute are sufficiently comprehensive, those devices may suffice to demonstrate Congressional intent to preclude the remedy of suits under § 1983.
In Ball, the Ninth Circuit concluded that Congress intended to create individual rights enforceable via § 1983 in the free choice provisions of the Medicaid Act, 42 U.S.C. § 1396n(c)(2)(C) and § 1396n(d)(2)(C), based on the provision's repeated use of the word "individuals." The court concluded that the use of this term in conjunction with language describing the right to be informed and the right to choose among alternatives indicated that the statutory provisions were "`concerned with whether the needs of any particular person have been satisfied,' and not solely with an aggregate `institutional policy and practice.'" Ball, 492 F.3d at 1107 (quoting Gonzaga, 536 U.S. at 288, 122 S.Ct. 2268). "While express use of the term `individuals' (or `persons' or similar terms) is not essential to finding a right for § 1983 purposes, usually such use is sufficient for that purpose." Id. at 1108. Thus, the same analysis that the Ninth Circuit utilized in Ball would apply to the PASRR provisions of the NHRA at issue here, which specifically and repeatedly refer to "residents" of a nursing facility or "individuals" who are "mentally retarded." See 42 U.S.C. §§ 1396r(e)(7)(A)(i); 1396r(b)(3)(F)(ii); 1396r(e)(7)(B)(ii)(I), (II); 1396r(e)(7)(C)(i)(I), (II), (IV). See also Joseph S., 561 F.Supp.2d at 305 ("[T]he NHRA's denial of payment is based on
Generally, the ADA and Section 504 of the Rehabilitation Act prohibit discrimination against individuals with disabilities. There is no significant difference in the analysis of rights and obligations created by Title II of the ADA and Section 504 of the Rehabilitation Act,
Federal regulations implementing both the ADA and Section 504 have specific provisions referred to as "integration" regulations or mandates, which require public entities to treat individuals with disabilities in the "most integrated setting appropriate to the[ir] needs." 28 C.F.R. §§ 35.130(d), 41.51(d). In Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999), the Supreme Court held that these integration mandates require a state to provide services to individuals in community settings rather than institutions whenever the relevant professionals conclude that the services required by the individual may appropriately be rendered in a community setting, unless the expense involved would fundamentally alter the state's overall services and programs. Id. at 607, 119 S.Ct. 2176.
In Olmstead, the Supreme Court considered the scope of the ADA's integration mandate: "Specifically, we confront the question of whether the proscription of discrimination [in Title II of the ADA] may require placement of persons with mental disabilities in community settings rather than in institutions. The answer, we hold, is a qualified yes." Id. at 587, 119 S.Ct. 2176. The Court held that "[u]njustified isolation ... is properly regarded as discrimination based on disability." Id. at 597, 119 S.Ct. 2176. Thus, unnecessary segregation of persons with mental disabilities is discrimination per se under either the ADA or Section 504 of the Rehabilitation Act. See id.; see also Joseph S., 561 F.Supp.2d at 290. The state is to provide community-based treatment for persons with mental disabilities when such placement is appropriate, so long as "the affected person does not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities." Olmstead, 527 U.S. at 607, 119 S.Ct. 2176.
Here, Mr. Dunakin alleges that he is a qualified individual with a disability. (Compl. ¶¶ 5, 16, 28.) He alleges that he is eligible for a PASRR Level II evaluation, specialized services, and alternative community placement, but has been inhibited from accessing such services because Defendants have failed to conduct the required evaluation that would make such alternative community-based placement options and services available to him. (Id. ¶¶ 16, 29-31, 36-39, 42.) Mr. Dunakin pleads that he would like to receive his long-term care services in a less restrictive community-based setting. (Id. ¶ 32.) He also pleads that, because Defendants have failed to conduct a PASRR Level II evaluation, he has been denied non-institutional care or services that could lead to discharge, resulting in discrimination against him on the basis of his disability. (Id. ¶¶ 35-42.) Finally, he pleads the specific services, programs, or activities at issue. Specifically, he alleges that he seeks a PASRR evaluation, PASRR specialized services, notice pursuant to PASRR about the state's determination and information about available alternative community-based placements, and appropriate less restrictive placement. (Compl. ¶ 32, § VIII, ¶ 3.)
These allegations are sufficient to state claims under both the ADA and Section 504 of the Rehabilitation Act. See Joseph S., 561 F.Supp.2d at 292 (rejecting similar arguments by state defendants in that case); see also Day v. Dist. of Columbia, 894 F.Supp.2d 1, 22-23 (D.D.C.2012) (holding that, to state a claim under the ADA or
Mr. Dunakin pleads four claims under Title XIX of the Social Security Act. (Compl. ¶ 44.) He pleads that Defendants violated the Act by failing to provide Medicaid benefits (1) with reasonable promptness; (2) in compliance with Medicaid comparability requirements; (3) with a meaningful choice of providers, including a choice between institutional and community based services; and (4) with adequate written notice of Defendants' determinations, as well as the right to appeal to Defendants' administrative hearing process. (Id.) Defendants argue that these claims must be dismissed. (Rule 12(c) Mot. at 16-21.)
Defendants assert that the Social Security Act requires only that they promptly pay for Medicaid-covered services, and not that they arrange for or provide for such services. (Id. at 16-18.) Mr. Dunakin's claim for the provision of Medicaid benefits with reasonable promptness is based in part on 42 U.S.C. § 1396a(a)(8). (Compl. ¶ 44.) That provision of the Medicaid Act requires that "[a] State plan for medical assistance must ... provide that all individuals wishing to make application for medical assistance under the plan shall have an opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals." 42 U.S.C. § 1396a(a)(8). Defendants argue that Mr. Dunakin fails to state a claim under this provision because the Medicaid Act defines "medical assistance" as payment of part or all of the cost of services. (See Rule 12(c) Mot. at 16-17 (quoting 42 U.S.C. § 1396d(a) (2009)).) Defendants argue that the statute relates to the promptness of payment for services and not the actual provision of services, such as a PASRR evaluation, by the state. (See id.) Defendants assert that because Mr. Dunakin does not allege that the state refused to pay for services, his claim based on Defendants' alleged failure to provide Medicaid benefits with reasonable promptness under 42 U.S.C. § 1396a(a)(8) should be dismissed.
Defendants argument, however, appears to be based on an outdated version of 42 U.S.C. § 1396d(a). Until recently, the Medicaid Act defined "medical assistance" as "payment of part or all of the cost of" services. Leonard v. Mackereth, No. 11-7418, 2014 WL 512456, at *5 (E.D.Pa. Feb. 10, 2014) (quoting 42 U.S.C. § 1396d(a) (2009)). Based on that definition, some federal courts held that a state's obligation was limited to providing financial assistance only. Id. This is the argument that Defendants have adopted here. (Rule 12(c) Mot. at 16-17.) As part of the Patient Protection and Affordable Care Act, however, Congress amended the definition of "medical assistance" under 42 U.S.C. § 1396d(a). As of March 23, 2010, "[t]he term `medical assistance' means payment of part or all of the cost of ... care and services or the care and services themselves or both[.]" 42 U.S.C. § 1396d(a)
Following Mr. Dunakin's reference to and analysis of the amended version of 42 U.S.C. § 1396d(a) (see Rule 12(c) Resp. (Dkt. # 40) at 18-19), Defendants drop their assertion of this argument in their reply memorandum (Rule 12(c) Reply at 10-11). Accordingly, based on the amended definition of "medical assistance" in 42 U.S.C. § 1396d(a), the court denies Defendants' motion to dismiss Mr. Dunakin's claim under Title XIX of the Social Security Act on this ground.
The "comparability" requirement of the Medicaid Act is set forth in 42 U.S.C. § 1396a(a)(10)(B)(i), which provides that a state plan for medical assistance made available to an individual "shall not be less in amount, duration, or scope than the medical assistance made available to any other such individual ...." Id.; see also 42 C.F.R. § 440.240.
Mr. Dunakin asserts that he has pleaded that he and other individuals with intellectual disabilities and related conditions do not have the specialized services that constitute "active treatment," and that those services are provided to other similarly needy individuals placed in Defendants' intermediate care facilities for individuals with intellectual disabilities ("ICF-IIDs"). (Rule 12(c) Resp. at 19.) Mr. Dunakin argues that Defendants efforts to reform the State's PASRR program did not include the approximately 300 people with developmental disabilities and related conditions who were living in privately-operated nursing facilities. (Id. at 20 (citing Appendix A to the complaint (Dkt. # 1-1) (attaching a copy of DDA's 2014 Supplemental Budget stating that DDA's "immediate steps" to reform the PASRR program "do not address the issue of the approximately 300 people with developmental disabilities who are currently in community nursing facilities.")).) He further argues that "[e]ven five months after the lawsuit was filed, [D]efendants' Rule 30(b)(6) witness testified that only a few [of these individuals] were actually receiving specialized services." (Rule 12(c) Resp. at 20.)
Although pleading such a claim may be feasible, Mr. Dunakin has failed to do so here. The facts he describes in his response may have been developed in discovery, but they are not adequately pleaded in his complaint. In his response to Defendants' motion to dismiss, Mr. Dunakin cites several provisions of his complaint (see Rule 12(c) Resp. at 19 (citing Compl. ¶¶ 22-23, 26,-32)), but the claim described above is not to be found within them. Accordingly, the court grants Defendants' motion to dismiss Mr. Dunakin's claim based on Medicaid comparability. However, as discussed below, the court also grants Mr. Dunakin leave to amend his complaint with respect to this claim.
Mr. Dunakin bases his third claim under Title XIX of the Social Security Act on one of the "free choice" provisions of the Medicaid Act. (See Compl. ¶ 44 (citing 42 U.S.C. §§ 1396n(c)(2)(B) and (C)).) The portion of the Medicaid Act at issue relates to the federal home- and community-based services ("HCBS") waiver program, which allows states to be reimbursed for providing beneficiaries with noninstitutional care, so long as the cost of providing this care is less than or equal to the cost of caring for the same beneficiaries in more traditional long-term institutions. See Ball v. Rodgers, 492 F.3d 1094, 1107 (9th Cir.2007). HCBS waivers, however, are only available if a state provides certain "assurances" to the Secretary of Health and Human Services. Id. (citing 42 U.S.C. § 1396n(c)(2), (d)(2)). Section 1396n(c)(2)(C), upon which Mr. Dunakin relies, provides that certain individuals, as defined in § 1396n(c)(2)(B),
42 U.S.C. § 1396n(c)(2)(C).
Defendants assert without citation to legal authority that 42 U.S.C. § 1396n(c)(2) "cannot form a basis for relief" because it "relates only to waivers" for state Medicaid plans. (Rule 12(c) Mot. at 20.) The Ninth Circuit, however, has expressly held that Medicaid beneficiaries
Mr. Dunakin alleges that Defendants violated Title XIX of the Social Security Act by failing to provide Medicaid benefits "with adequate written notice of [D]efendants' determinations, as well as the[] right to appeal to [D]efendants' administrative hearing process, pursuant to 42 C.F.R. § 431.200 et seq." (Compl. ¶ 44.) Defendants argue that Mr. Dunakin has not identified any action on their part that entitled him to notice or the notice to which he was entitled but that they failed to provide or provided improperly. (Rule 12(c) Mot. at 21.) Yet, Mr. Dunakin alleges that Defendants never provided him with notice about the results of his initial PASRR Level I screening, his entitlement to a PASRR Level II evaluation, the availability of specialized services, or the possibility of alternative community-based placement. (Compl. ¶¶ 16, 30-31.) He also alleges that Defendants' PASRR system as a whole failed to provide "adequate notice and due process" regarding his and the proposed class's "eligibility for Medicaid services (including placement in a less restrictive setting and specialized services) and their rights to appeal any determination through an administrative hearing." (Id. ¶ 17; see also id. ¶¶ 31, 44.) These factual allegations are sufficient.
Defendants also complain that Mr. Dunakin's reference to "42 C.F.R. § 431.200 et seq." is too vague and forces them to guess which specific provisions are at issue. A plaintiff, however, is not required to plead the law, only facts. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Indeed, although the court must accept well-pleaded facts as true when considering a Rule 12(c) motion,
The court granted Defendants' Rule 12(c) motion with respect to Mr. Dunakin's claim based on the "comparability" requirement of the Medicaid Act as set forth in 42 U.S.C. § 1396a(a)(10)(B)(i). (See Compl. ¶ 44(2).) When the court grants a motion to dismiss, it must also decide whether to grant leave to amend. Mora v. Countrywide Mortg., No. 2:11-cv-00899-GMN-RJJ, 2012 WL 254056, at *2 (D.Nev. Jan. 26, 2012). Ordinarily, leave to amend a complaint should be freely given following an order of dismissal. See Fed.R.Civ.P. 15(a)(2). Generally, leave to amend is only denied when it is clear that the deficiencies of the complaint cannot be cured by amendment. See DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir.1992) ("A district court does not err in denying leave to amend where the amendment would be futile."). It is not clear that the deficiencies of Mr. Dunakins' claim based on the "comparability" requirement of the Medicaid Act cannot be cured by amendment. Accordingly, the court grants Mr. Dunakin leave to amend his complaint with respect to this claim within 30 days of the date of this order. If Mr. Dunakin does not timely file an amended complaint addressing this claim, the court will dismiss it.
The court next considers Mr. Dunakin's motion for class certification. (See generally Mot. for Cert.) Mr. Dunakin brings his motion under Federal Rule of Civil Procedure 23(b)(2). Specifically, Mr. Dunakin seeks certification of a class that consists of all individuals who:
(Compl. ¶ 14.) The court finds that Mr. Dunakin has met the criteria for class certification under Rule 23(b)(2) and accordingly grants his motion as discussed below.
A district court may certify a class only if all of the requirements of Federal Rule of Civil Procedure 23(a) are met, including: "(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a); see also Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___, 131 S.Ct. 2541, 2548, 180 L.Ed.2d 374 (2011); Rodriguez v. Hayes, 591 F.3d 1105, 1122 (9th Cir.2010). These Rule 23(a) prerequisites are often referred to in shorthand as numerosity, commonality, typicality, and adequacy.
In addition to meeting the Rule 23(a) prerequisites, the party seeking class certification must also fall into one of three categories under Rule 23(b). Dukes, 131 S.Ct. at 2548; see also Leyva v. Medline
Rule 23 "does not set forth a mere pleading standard." Dukes, 131 S.Ct. at 2551. Rather, certification is proper "only if `the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.'" Id. (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). Indeed, in conducting the class certification analysis, "it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question." Id. at 2551 (quoting Falcon, 457 U.S. at 160, 102 S.Ct. 2364) (internal quotation marks omitted). This is because "the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action." Id. (internal quotation omitted). Nonetheless, the ultimate decision regarding class certification "involve[s] a significant element of discretion." Yokoyama v. Midland Nat'l Life Ins. Co., 594 F.3d 1087, 1090 (9th Cir.2010).
Although not specifically mentioned in Rule 23, Defendants argue that Mr. Dunakin must, in addition to showing numerosity, commonality, typicality, and adequacy, demonstrate that the members of the proposed class are "ascertainable." (See Resp. to Cert. (Dkt. # 22) at 4 ("A class definition must be precise, objective, and the class must be presently ascertainable.") Under the ascertainability doctrine, the class must be sufficiently definite so that it is feasible for the court to determine membership by reference to objective criteria. See Williams v. Oberon Media, Inc., 468 Fed.Appx. 768, 770 (9th Cir. 2012) (citing O'Connor v. Boeing N. Am. Inc., 184 F.R.D. 311, 319 (C.D.Cal.1998) (holding that the district court did not abuse its discretion in denying the class motion because the proposed members were not "precise, objective or presently ascertainable")). A class is sufficiently defined and ascertainable if it is "administratively feasible for the court to determine whether a particular individual is a member." O'Connor, 184 F.R.D. at 319; accord Davoll v. Webb, 160 F.R.D. 142, 143 (D.Colo.1995).
Although ascertainability may be applicable when considering certification of a class under Rule 23(b)(3), many courts have determined that it is of less importance or not applicable at all when considering certification under Rule 23(b)(2). See, e.g., Shelton v. Bledsoe, 775 F.3d 554, 561 (3d Cir.2015) ("[I]t does not follow ... that ascertainability is always a prerequisite to class certification. In the context of a(b)(3) class, the requirement that the class be defined in a manner that allows for ready identification of class members serves several important objectives that either do not exist or are not compelling in (b)(2) classes."). Courts have applied the ascertainability doctrine differently in the two contexts due to the distinctions between a Rule 23(b)(2) class and a Rule 23(b)(3) class. See Shelton, 775 F.3d at 562. Rule 23(b)(3) requires finding that common questions of law or fact predominate over questions affecting only individual members, and that a class action is superior to other methods of adjudication. Fed.R.Civ.P. 23(b)(3). Certification under Rule 23(b)(3) proceeds in a much wider set of circumstances than certification under
On the other hand, "[t]he key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted — the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them." Wal-Mart, 131 S.Ct. at 2557 (internal quotations and citation omitted). Indeed, an Advisory Committee note to Rule 23 states that "illustrative" examples of a Rule 23(b)(2) class include "various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration." Fed.R.Civ.P. 23 advisory committee's note (1966). Moreover, enforcement often does not require identification of individual members in a Rule 23(b)(2) class because if relief is granted the defendants are legally obligated to comply. Shelton, 775 F.3d at 561.
Although the Ninth Circuit has not ruled on this issue, several other circuit courts have held that, due to the unique characteristics of a Rule 23(b)(2) class, it is improper to require ascertainability for a Rule 23(b)(2) class. See, e.g., id. at 559-63 ("[A]scertainability is not a requirement for certification of a(b)(2) class seeking only injunctive and declaratory relief...."); Shook v. El Paso, 386 F.3d 963, 972 (10th Cir.2004) ("[M]any courts have found Rule 23(b)(2) well suited for cases where the composition of the class is not readily ascertainable."); Yaffe v. Powers, 454 F.2d 1362, 1366 (1st Cir. 1972) (holding that, because "notice to the members of a(b)(2) class is not required... the actual membership of the class need not ... be precisely delimited"). The court finds the reasoning of these decisions to be persuasive and adopts it here.
Other courts have certified very broadly defined Rule 23(b)(2) classes in which members are defined by their eligibility for certain types of services or by a qualifying condition. See, e.g., Lane v. Kitzhaber, 283 F.R.D. 587, 594 (D.Or.2012) (certifying Rule 23(b)(2) class of "[i]ndividuals with intellectual or developmental disabilities... who qualified for supported employment services"); Rosie D. v. Romney, 410 F.Supp.2d 18, 22 (D.Mass.2006) (certifying Rule 23(b)(2) class of children "who were (or might become) eligible to receive, but were not receiving, what Plaintiffs described as `intensive home-based services'"); Katie A. v. Diana Bonta, 433 F.Supp.2d 1065, 1067 (C.D.Cal.2006) (certifying class of foster children who "have a mental illness or condition that has been documented or, had an assessment already been conducted, would have been documented; and ... who need individualized mental health services"), overruled on other grounds, 481 F.3d 1150 (9th Cir.2007); K.M. v. Regence BlueShield, No. C13-1214 RAJ, 2014 WL 801204, at *12 (W.D.Wash. Feb. 27, 2014) (certifying Rule 23(b)(2) class of beneficiaries who "require neurodevelopmental therapy for the treatment of a qualified mental health condition"). Indeed, Mr. Dunakin's proposed class definition is similar to the one approved in another PASRR class action. See Van Meter v. Harvey, 272 F.R.D. 274, 276 (D.Me.2011). The court discerns no bar to certification of the proposed class under Rule 23(b)(2) based on ascertainability here.
The numerosity requirement is satisfied when "the class is so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a)(1). There is no
The question is whether joinder of all potential plaintiffs would be impracticable. See McCluskey v. Trs. of Red Dot Corp. Emp. Stock Ownership Plan & Trust, 268 F.R.D. 670, 674 (W.D.Wash. 2010). It is a long-standing rule that "impracticability" does not mean "impossibility"; rather, impracticability means only "the difficulty or inconvenience of joining all members of the class." Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913-14 (9th Cir.1964) (internal citations omitted). In assessing impracticability of joinder when the class size is not great, courts consider factors such as "the geographical diversity of class members, the ability of individual claimants to institute separate suits, and whether injunctive or declaratory relief is sought." Jordan, 669 F.2d at 1319; see also McCluskey, 268 F.R.D. at 674 (citing Newberg and Conte, 1 Newberg on Class Actions § 3.6 (4th ed. 2002) ("[F]actors relevant to the joinder impracticability issue include judicial economy arising from avoidance of a multiplicity of actions, geographic dispersement of class members, size of individual claims, financial resources of class members, the ability of claimants to institute individual suits, and requests for prospective injunctive relief which would involve future class members.")).
Based on DDA's data, Mr. Dunakin asserts that the projected size of the class is approximately 300 people. (Hamburger Decl. Ex. C at 2; id. Ex. E; Teed Decl. Ex. B at 100.) This number, although not enormous, qualifies under the standards described above. If, as alleged, Defendants have failed to institute a PASRR system that complies with the requirements of federal law, then many, if not all, of these individuals, and perhaps more, have been or will be injured by Defendants' failure to provide proper PASRR screening and evaluation. Further, all of the proposed class members suffer from disabilities, are residents of privately-operated nursing facilities spread across the state, and are low-income Medicaid recipients. Defendants have not disputed the impracticability of joinder in these factual circumstances (see Resp. to Cert. at 12-13), and the court finds that these circumstances render individual suits by the putative class members here to be impracticable. See Van Meter, 272 F.R.D. at 282 ("[D]isability, confinement and financial difficulty, and the inability of class members to bring their own separate actions have been found to be factors strongly weighing against the practicability of joinder.").
Defendants nevertheless argue that Mr. Dunakin has not proven numerosity because Defendants' own data is imprecise and therefore the exact number of PASRR-eligible nursing home residents is impossible to determine. (See Resp. to Cert. at 13 ("DDA has compiled a list of individuals who are either DDA clients, or whose minimum data sets suggest they might be eligible for PASRR.") (italics in original).) However, because he seeks only declaratory and injunctive relief, Mr. Dunakin does not need to establish the
To satisfy commonality, the plaintiff must demonstrate that "there are common questions of law or fact to the class." Fed.R.Civ.P. 23(a)(2). "Commonality" is met through the existence of a "common contention" that is of "such a nature that it is capable of classwide resolution." Dukes, 131 S.Ct. at 2551. A contention is capable of classwide resolution if "the determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Id. Accordingly, "what matters to class certification ... is not the raising of common questions — even in droves — but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation." Id. This requirement is "construed permissively." Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir.1998). Accordingly, "[a]ll questions of fact and law need not be common to satisfy the rule." Id.; see also Rodriguez v. Hayes, 591 F.3d 1105, 1122 (9th Cir.2010). Indeed, commonality poses a "limited burden" because it "only requires a single significant question of law or fact." Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 589 (9th Cir.2012).
Mr. Dunakin asserts the following "overarching" common question of law and fact: Do defendants have a PASRR program in place for Medicaid-certified privately-operated nursing facilities that meets all relevant federal requirements? (Reply for Cert. (Dkt. # 33) at 4.) He asserts several additional common questions regarding putative class members' access to appropriate and adequate services: (1) Do Defendants have a PASRR program in place to properly screen and assess individuals with intellectual disabilities or related conditions residing in Medicaid-certified, privately-operated nursing facilities, consistent with federal law and regulations? (2) Do defendants provide, with reasonable promptness, all specialized services identified by the PASRR process to proposed class members? (3) Do Defendants properly determine whether individuals with intellectual disabilities and related conditions residing in Medicaid-certified, privately-operated nursing facilities want to live in less restrictive, community-based settings and, if so, provide for class members to access those less restrictive community-based settings? (4) Do Defendants provide adequate notice and the opportunity to appeal adverse decisions to individuals with intellectual disabilities or related conditions residing in Medicaid-certified, privately operated nursing facilities regarding their eligibility for Medicaid services (including PASRR screening, assessment, specialized services and placement in a less restrictive community-based setting)? (Id.; see also Mot. for Cert. at 10.)
In response, Defendants do not challenge Mr. Dunakin's common questions directly. Rather, Defendants assert that the foregoing questions "presume[] that every member of the class has already been identified as an individual with an intellectual disability or related condition." (Resp. to Cert. at 10.) Defendants assert that because there is uncertainty concerning the existence of an intellectual disability in each class member, "[t]he issues presented as `common' to the class are completely hypothetical." (Id.) Mr. Dunakin's
"[R]epresentative claims are `typical' if they are reasonably co-extensive with those of absent class members; they need not be substantially identical." Hanlon, 150 F.3d at 1020. "Typicality refers to the nature of the claim or defense of the class representative, and not to the specific facts from which it arose or the relief sought."
The Ninth Circuit has provided guidance on how to analyze typicality in a case involving challenged policies or practices:
Parsons, 754 F.3d at 687. The Ninth Circuit has also cautioned, however, that "a named plaintiff's motion for class certification should not be granted if there is a danger that absent class members will suffer if their representative is preoccupied with defenses unique to it." Id.
Defendants' strongest argument against certification of the class lies in the typicality requirement. (Resp. to Cert. at 7-9.) Defendants found a 2008 PASRR Level I assessment in Mr. Dunakin's medical records after this lawsuit was filed, which indicates that Mr. Dunakin does not qualify for a PASRR Level II assessment.
Defendants, however, ignore the larger picture surrounding Mr. Dunakin's alleged experience with Defendants' PASRR policies and procedures. Mr. Dunakin has presented evidence of a 2006 PASRR I evaluation, which identified him as having "Developmental Disability Indicators." (Hamburger Decl. Ex. G.) Yet, Mr. Dunakin never received a PASRR Level II evaluation at that time. Years later, in 2014, DDA placed Mr. Dunakin on a list or report of DDA clients who were living in nursing homes. (Hamburger Decl. Ex. H (Watling Rule 30(b)(6) Dep.) at 64:21-65:7.) DDA has acknowledged that the people on the report are individuals that it knows should receive a Level II PASRR evaluation. (See Teed Decl. Ex. B (Hehemann Rule 30(b)(6) Dep.) at 242:15-22.) Yet, again, Mr. Dunakin did not receive such an evaluation.
Furthermore, Mr. Dunakin asserts that the 2008 PASRR Level I assessment, which denied his eligibility for a PASRR Level II evaluation, was in error.
Although the facts surrounding Mr. Dunakin's claims have grown more complex as a result of discovery, the court concludes that his claims are nonetheless typical of the putative class. First, there is no dispute that Mr. Dunakin is a resident of a Medicaid-certified, privately-operated nursing facility. Although not uncontroverted, Mr. Dunakin also has put forth substantial evidence that he suffers from a "related condition" to intellectual disability.
Defendants' arguments to the contrary essentially go to the merits of Mr. Dunakin's claims. Although "a court's class-certification analysis must be rigorous and may entail some overlap with the merits of the plaintiff's underlying claim," Dukes, 131 S.Ct. at 2551 (internal quotation marks omitted), "Rule 23 grants courts no license to engage in free ranging merits inquiries at the certification stage," Amgen Inc. v. Conn. Ret. Plans and Trust Funds, ___ U.S. ___, 133 S.Ct. 1184, 1194-95, 185 L.Ed.2d 308 (2013). See also id. at 1195 ("Merits questions may be considered to the extent — but only to the extent — that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied."); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) ("In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.") (quoting with approval Miller v. Mackey Int'l, 452 F.2d 424, 427 (5th Cir. 1971)); Staton v. Boeing Co., 327 F.3d 938, 954 (9th Cir.2003) ("Although some inquiry into the substance of a case may be necessary to ascertain satisfaction of the commonality and typicality requirements of Rule 23(a), it is improper to advance a decision on the merits to the class certification stage."). Thus, the court need not and should not determine whether Mr. Dunakin will ultimately prevail on his claims in the context of this Rule 23 motion; rather, the court should determine whether Mr. Dunakin has sufficiently demonstrated the requirements of Rule 23. Based on the pleadings and evidence submitted by the parties, the court concludes that Mr. Dunakin has met his burden under Rule 23 of demonstrating that his claims are typical of the putative class.
"To determine whether named plaintiffs will adequately represent a class, courts must resolve two questions: `(1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?'" Ellis v. Costco Wholesale Corp., 657 F.3d 970, 985 (9th Cir.2011) (quoting Hanlon, 150 F.3d at 1020).
Defendants challenge Mr. Dunakin's adequacy as a class representative on the same grounds on which they challenge typicality and commonality. (See Resp. to Cert. at 14 ("Plaintiff does not appear to be a member of the putative class and has not suffered the same injuries he alleges are common to the class.").) The court relies on its reasoning stated above addressing Defendants' arguments concerning those issues. (See infra §§ III.B.4,
The competency of counsel has been largely subsumed under Rule 23(g) and the requirement that the court appoint adequate class counsel. Fed.R.Civ.P. 23(g)(1)(A)(i)-(iv). When appointing class counsel, the court considers the work Plaintiff's counsel has done in identifying and investigating potential claims, counsel's experience with class litigation and the types of claims at issue, counsel's knowledge of the applicable law, and the resources that counsel will commit to representing the class. Id. The court may also consider any other pertinent matter relevant to counsel's ability to adequately represent the class. Fed.R.Civ.P. 23(g)(1)(B).
Defendants "do not dispute the experience of Plaintiff's counsel." (Resp. to Cert. at 14.) However, they challenge the adequacy of Plaintiff's counsel by asserting that Plaintiff's memoranda in support of partial summary judgment and class certification "demonstrates a fundamental misunderstanding of both DDA's actions and process, and of the relevant law." (Id.) The court agrees with Mr. Dunakin that the parties' disagreement over the law or how their dispute should be resolved is not a valid basis for challenging the adequacy of counsel. (See Reply to Cert. at 8 (citing Fed.R.Civ.P. 23(g)(1)(A)(i)-(iv)).) Based on the evidence of their qualifications, prior experience in class litigation, and specifically Medicaid and disability-related class litigation, and willingness to commit the time and resources necessary to vigorously pursue this litigation (see generally Kas Decl.; Hamburger Decl. ¶¶ 1-10), the court finds that Plaintiff's counsel satisfies the requisite criteria for adequacy of representation.
As noted above, in addition to the Rule 23(a) requirements of numerosity, commonality, typicality, and adequacy, Mr. Dunakin must demonstrate that class certification is appropriate under one of three categories in Rule 23(b). Dukes, 131 S.Ct. at 2548. Mr. Dunakin seeks certification only under Rule 23(b)(2). (Mot. for Cert at 1415; Reply to Cert. at 9-10.) Certification of a class is appropriate under Rule 23(b)(2) where "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed. R.Civ.P. 23(b). In Dukes, the Supreme Court explained that Rule 23(b)(2) certification is appropriate where injunctive or declaratory relief can be provided to the members of the class without engaging in a case-by-case analysis of the individual circumstances of each class member:
131 S.Ct. at 2557 (internal quotations and citations omitted).
Defendants assert that rule 23(b) certification is not appropriate here because Mr. Dunakin "has not established that ... Defendants have taken, or refused to take, any actions "that apply generally to the class" or that any relief would be "appropriate respecting the class as a whole." (Resp. to Cert. at 15 (quoting Fed.R.Civ.P. 23(b)(2)).) Defendants argue that "determining what relief is available for a given individual in the class would necessarily require evidentiary hearings on both whether that individual is a member of the class at all, and what specific injury that individual may have incurred." (Id.)
The court disagrees. Mr. Dunakin is not asking the court to make separate determinations concerning the individual services that are appropriate for each class member. Rather, class members seek relief from systemic barriers to proper treatment and services. Specifically, Mr. Dunakin seeks implementation of appropriate policies, practices, and procedures by Defendants to ensure that putative class members are screened and evaluated as required by the NHRA and the PASRR regulations, informed that they may be eligible for community-based services, and provided with appropriate services by Defendants with reasonable promptness. (See Compl. at 15.) In other words, he does not ask the court to order individualized remedies for the various class members; instead, he asks the court for an order requiring Defendants "to develop a system of evaluation and implementation of corresponding services that complies with federal standards." See Van Meter v. Harvey, 272 F.R.D. 274, 282 (D.Me.2011).
Van Meter involves similar facts and is instructive here. In Van Meter, Medicaid recipients who were suffering from defined chronic disabilities brought a putative class action alleging that the Maine Department of Health and Human Services ("DHHS") violated the NHRA, Title II of the ADA, and the Rehabilitation Act by failing to ensure that Plaintiffs received appropriate treatment in the most integrated setting possible. See id. at 275. The court found class certification under Rule 23(b)(2) to be appropriate, stating:
Id. at 283-84. The same is true here. The court finds that Mr. Dunakin has demonstrated that his action falls within the parameters of Rule 23(b)(2).
In sum, the court finds that Mr. Dunakin has demonstrated all of the prerequisites of Rule 23(a) and (b)(2). Accordingly, the court grants Mr. Dunakin's motion for class certification and appoints him as class representative. Consistent with its analysis above concerning Mr. Dunakin's counsel's qualifications (see supra § III.B.6), the court also appoints Susan Kas of Disability Rights Washington and
Mr. Dunakin moves for partial summary judgment seeking a declaration that Defendants violate the NHRA when, in conducting PASRR screenings and evaluations, Defendants use the definition of "developmental disability" found in state regulations, rather than the definition of "intellectual disability and related conditions" found in federal regulations. (See generally PSJ Mot.) Mr. Dunakin argues that Defendants' misapplication of the state definition for "developmental disability" has resulted in the improper denial of PASRR services to himself and other class members. (Id.)
Defendants also move for partial summary judgment on two of Mr. Dunakin's claims under Title XIX of the Social Security Act. (See Rule 12(c) Mot. at 22-23.) Defendants ask the court to enter summary judgment on Mr. Dunakin's claims that Defendants failed to provide Medicaid benefits to him and class members with reasonable promptness (Compl. ¶ 44(1)) and that they failed to provide adequate written notice of Defendants' determinations, as well as the right to administratively appeal any such determination (id. ¶ 44(4)). (See Rule 12(c) Mot. at 22-23.) The court now considers these motions.
Federal Rule of Civil Procedure 56 permits a court to grant summary judgment where the moving party demonstrates (1) the absence of a genuine issue of material fact and (2) entitlement to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Galen v. Cnty. of L.A., 477 F.3d 652, 658 (9th Cir.2007). The moving party bears the initial burden of production to show the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548.
If the moving party does not bear the ultimate burden of persuasion at trial, it can show the absence of an issue of fact in two ways: (1) by producing evidence negating an essential element of the nonmoving party's case, or, (2) by showing that the nonmoving party lacks evidence of an essential element of its claim or defense. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1106 (9th Cir.2000). If the moving party will bear the ultimate burden of persuasion at trial, it must establish a prima facie showing in support of its position on that issue. UA Local 343 v. Nor-Cal Plumbing, Inc., 48 F.3d 1465, 1471 (9th Cir.1994). That is, the moving party must present evidence that, if uncontroverted at trial, would entitle it to prevail on that issue. Id. at 1473.
If the moving party meets its burden of production, the burden then shifts to the non-moving party to designate specific facts demonstrating the existence of genuine issues for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The non-moving party "may not rest upon the mere allegations or denials of the [nonmoving] party's pleading," but must provide affidavits or other sources of evidence that "set forth specific facts showing that there is a genuine issue for trial" — that is, facts from which a factfinder could reasonably find in the non-moving party's favor. Fed. R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether the factfinder could reasonably find in the non-moving party's favor, "the court must draw all reasonable inferences in favor of the nonmoving party." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
Mr. Dunakin asserts that in conducting PASRR screenings and evaluations Defendants improperly utilize the definition of "developmental disability" found in the Washington Administrative Code, WAC §§ 388-823-0200, 388-823-0210, rather than the definition of "intellectual disability and related conditions" found in the Code of Federal Regulations, 42 C.F.R. §§ 483.102(b)(3), 435.1010. (See generally PSJ Mot.) In their response, Defendants admit that, for an unspecified period of time, they applied the state eligibility standard for the provision of state DDA services to implement the federal PASRR program and that their use of the state eligibility standard for federal PASRR purposes was in error. (PSJ Resp. at 1 ("Defendants do not dispute that the [state] developmental disability eligibility determinations and PASRR determinations have different standards."); id. at 7; Hehemann Decl. ¶ 8 ("[F]or a brief period of time, the state eligibility definition, with the exception of age of onset, was being used to implement PASRR, but that has since changed so that only the federal definition is being used.").) They claim, however, that they have now corrected this problem — which would essentially render Mr. Dunakin's motion for partial summary judgment moot. (See PSJ Resp. at 1 ("The contention that ... Defendants currently apply the same standard [to both state and PASRR eligibility determinations] is wrong.") The court, however, is unconvinced that the State's prior practice has been corrected with respect to Mr. Dunakin and the other class members.
As an initial matter, it is important to take a close look at how the state and federal eligibility standards compare with one another. Under the federal PASRR program, CMS considers a person to have intellectual disability if he or she has (1) "[a] level of retardation (mild, moderate, severe or profound) described in the American Association on Intellectual Disability's Manual on Classification in Intellectual Disability (1983)," or (2) "[a] related condition as defined by [42 C.F.R.] § 435.1010." See 42 C.F.R. § 483.102(b)(3). On the surface, these PASRR requirements seem similar to DDA's requirements because to qualify for DDA services based on developmental disability, the individual "must have [1] a diagnosis of intellectual disability ... or [2] other condition found by DDA to be closely related to intellectual disability or requiring treatment similar to that required for individuals with intellectual disability." WAC § 388-8230015 (in relevant part). Thus, both programs require either (1) retardation (as it is phrased in the federal regulations) or intellectual disability (as it is phrased in the state regulations), or (2) a "related condition" (as it is phrased in the federal regulations) or a "closely related" condition (as it is phrased in the state regulations). The "similarity" between the federal and state provisions, however, begins to break down when one compares how the federal PASRR program defines "retardation" and "related condition" to how the State defines "intellectual disability" and "closely related" condition. The devil, as they say, is in the details.
The critical issue underlying Mr. Dunakin's motion for partial summary judgment centers on how the PASRR regulations define a "related condition" under 42 C.F.R. § 435.1010. The federal PASRR regulations define "[p]ersons with related
In addition, the federal regulations also set forth specific requirements regarding the "minimum data" and "process requirements" necessary for the state intellectual disability authority to determine whether or not a resident with intellectual disability needs PASRR services. 42 C.F.R. § 483.136(a). Using the data that the state is required to compile, the state "must validate that the individual has [an intellectual disability] or is a person with a related condition and must determine whether specialized services for intellectual disability are needed." 42 C.F.R. § 483.136(c)(2). The federal regulations specify that "[i]n making this determination," the State "must make a qualitative judgment on the extent to which the person's status reflects ... the characteristics commonly associated with the need for specialized services." Id. (italics added). Further, the regulations contain an exhaustive list of the specific characteristics that the state must consider in making its "qualitative judgment," including: (1) demonstration of the "[i]nability to — (A) [t]ake care of the most personal care needs; (B) [u]nderstand simple commands; (C) [c]ommunicate basic needs and wants; (D) [b]e employed at a productive wage without systematic long term supervision or support; (E) [l]earn new skills without aggressive and consistent training; (F) [a]pply skills learned in a training situation to other environments or settings without aggressive and consistent training; (G) [d]emonstrate behavior appropriate to the time, situation or place without direct supervision; and (H) [m]ake decisions requiring informed consent without extreme difficulty;" (2) "[d]emonstration of severe maladaptive behavior(s) that place the person or others in jeopardy to health and safety;" and (3) "[p]resence of other skill deficits or specialized training needs that necessitate the availability of trained [intellectual disability] personnel 24 hours per day, to teach the person functional skills." 42 C.F.R. § 483.136(c)(2)(i)-(iii).
As noted above, under the state system, to qualify for DDA services based on developmental disability, the individual "must have a diagnosis of [1] intellectual disability... or [2] other condition found by DDA to be closely related to intellectual disability or requiring treatment similar to that required for individuals with intellectual disability." WAC § 388-823-0015 (in relevant part). In addition, the condition must originate prior to age 18, be expected to continue indefinitely, and result in substantial limitations. Id. Already, there is a distinction between the federal PASRR and the state regulations because the state
It is the distinction between the PASRR regulations concerning "related condition" and the state regulations concerning "closely related" condition that is at issue in this motion. To be considered eligible in Washington for state services under the category of "other condition similar to intellectual disability," an individual must have "a diagnosis by a licensed physician of a neurological or chromosomal disorder that is known by reputable authorities to cause intellectual and adaptive skills deficits." WAC § 388-823-0600 (italics added). In addition, the condition must, in part, originate before age 18, be expected to continue indefinitely without improvement, not be attributable to mental illness or emotional, social or behavioral disorder, and result in substantial functional limitations.
The PASRR requirements with respect to "related condition" are substantially different from the foregoing state regulations. Although the state regulations require impairment in both intellectual and adaptive skills, the PASRR regulations require impairment in only one of these categories. Compare WAC § 388-823-0600 and WAC § 388-823-0610 with 42 C.F.R. § 435.1010 (defining "[p]ersons with related conditions"). As noted above, Defendants have acknowledged that their prior failure to recognize this difference was error. (PSJ Resp. at 1, 7; Hehemann Decl. ¶ 8.) Indeed, a new form that Defendants use to train staff indicates that for a related condition under PASRR a person need only demonstrate impairment in general intellectual functioning or adaptive functioning, but not both. (See Hehemann Decl. Ex. C.) This form, however, is dated October 31, 2014, which is only one month prior to Defendant's target date of completing its implementation of PASRR enhancements in privately-operated nursing facilities. (See Hehemann Decl. ¶ 5.) Further, there is no evidence that Defendants understood this distinction between the state and federal regulations at any of the times when they evaluated Mr. Dunakin for PASRR eligibility. Indeed, all of Defendants' testimony indicates that, until at least September 2014, they believed that the only distinction between the state and federal regulations was the required age of onset. (See Hamburger Decl. Ex. E at
The fact that Defendants acknowledged their error so late in the process is pivotal with respect to Mr. Dunakin's motion. The State contends that, beginning in April 2014, it has revisited PASRR evaluations for at least 270 people in the class or approximately 90 percent of the class. (See Hehemann Decl. ¶ 6 ("I can report that approximately 270 individuals in privately-operated Medicaid certified nursing facilities have been reassessed for PASRR purposes since April 2014 using the current PASRR process and systems. This is over 90% of the individuals who we initially contemplated might require review.").) Indeed, Defendants expressed the goal of completing that process by November 2014. (See Hehemann Decl. ¶ 5.) Yet, the undisputed evidence before the court is that during most of this period of time — until at least September 2014 — Defendants were still applying what they now admit was the wrong standard for PASRR evaluations. (See Hamburger Decl. Ex. E at 82:16-83:1, 83:24; id. at 140:10-15; id. at 154:5-9; id. Ex. H at 87:12-88:3.) Thus, despite Defendants' reassurance that they have reassessed most of the class for PASRR eligibility, there is no evidence that these reassessments were completed using the correct standard.
Second, there is no dispute that even in Defendants' revised PASRR materials, they are still applying the wrong standard for PASRR assessments. In their form for PASRR Level II evaluations, Defendants instruct DDA staff and others who may be completing the form to use state criteria for determining both intellectual disability as well as a related condition under PASRR. (See Hehemann Decl. Ex. B at 3.) Specifically, the form instructs:
(Id. (italics in original).) Thus, this "revised" form reiterates the very error concerning a "related condition" — that the only distinction between the federal and state definitions is age of onset — that Defendants claimed to have abandoned in their recent PASRR enhancements.
Finally, the federal PASRR regulations expressly direct that in determining whether an individual has an intellectual disability or related condition, the evaluator must make "a qualitative judgment" based on a variety of factors that are explicitly enumerated. 42 C.F.R. § 483.136(c)(2)(i)-(iii). There is no such requirement for making a "qualitative judgment" in the State's regulations. Indeed, the assessment of intellectual disability or "closely related" condition under the State's regulations is much more quantitative in nature — requiring specific FSIQ and adaptive skills test scores to qualify. See WAC § 388-823-0210; WAC § 388-823-0610. In addition, there is no evidence before the court or indication in any legal source cited by the parties or that the court could independently find that the state regulations mandate consideration of the numerous characteristics required under the federal regulations to be a part of the evaluator's "qualitative judgment." See 42 C.F.R. § 483.136(c)(2). Thus, it was also error for the State to rely upon its own regulations for PASRR eligibility assessments when these specific factors mandated in the federal regulations were not incorporated into the state regulations.
Defendants move for partial summary judgment with respect to subsections one and four of claim four in the complaint. (Rule 12(c) Mot. at 22-23.) Subsection one contains Mr. Dunakin's claim under Title XIX of the Social Security Act that Defendants failed to provide him with Medicaid benefits with reasonable promptness. (Compl. ¶ 44(1) (citing 42 U.S.C. §§ 1396a(a)(8), 1396a(a)(10)(A)).) Subsection four contains Mr. Dunakin's claim under the same statute that Defendants failed to provide him with adequate written notice of their determinations and/or his right to an administrative appeal. (Id. ¶ 44(4) (citing 42 C.F.R. § 431.200 et seq.).)
Defendants argues that because Mr. Dunakin received a PASRR Level I screen in 2008 that determined he did not need a PASRR Level II evaluation, they are entitled to summary judgment with respect to his claims that he was denied Medicaid services with reasonable promptness and that they failed to provide him with adequate notice of their determinations and his right to appeal. (Rule 12(c) Mot. at 22-23.) They argue that they have no duty to provide Medicaid services in the event of a PASRR Level I screen that determines an individual does not have an intellectual disability. (Id. at 23 (citing 42 C.F.R. § 483.120(b)).) They also argue that they have no duty to provide notice or specialized services under PASRR because he did not receive a PASRR Level II evaluation. (Id. at 22-23 (citing 42 C.F.R. §§ 431.200, 431.201, 483.120(b)).)
Even assuming that Defendants' analysis of the law is correct, there are serious factual flaws with their argument. First, there is evidence indicating that Mr. Dunakin received a PASRR Level I screen in 2006 that called for Defendants to conduct to a PASRR Level II evaluation. (Hamburger Decl. Ex. G.) Defendants may criticize the validity of the 2006 PASRR Level I screen (see Rule 12(c) Reply (Dkt. # 42) at 2 (asserting that it was created by a chiropractor)), but it nevertheless raises an issue of fact regarding Mr. Dunakin's claim for lack of inadequate notice under subsection four of claim four. Specifically, there is no evidence that Defendants provided Mr. Dunakin notice that he was "suspected" of having an intellectual disability or related condition following his 2006 PASRR Level I screen. Such notification is required. See 42 C.F.R. § 483.128(a) ("The State's performance of the Level I identification function must provide at least ... for the issuance of written notice to the individual or resident and his or her legal representative that the individual or resident is suspected of having... [an intellectual disability] and is
Further, Defendants' motion is premised on the notion that there is no question of fact that Mr. Dunakin is not entitled to a PASRR Level II examination or Medicaid services due to his 2008 PASRR Level I screen that stated no Level II evaluation was required. Defendants' motion ignores evidence presented by Mr. Dunakin that raises issues of fact with respect to his entitlement to both a PASRR Level II evaluation and resulting Medicaid services. First, Defendants ignore Mr. Dunakin's 2006 PASRR Level I screen indicating that Mr. Dunakin should receive a PASRR Level II evaluation and that it was sent to Defendants via facsimile. (Hamburger Decl. Ex. G.) Second, Defendants ignore evidence that Mr. Dunakin was a DDA client through the date on which this lawsuit was filed and that Defendants have a policy that DDA clients are presumptively "PASRR eligible." (Hehemann Decl. Ex. C at 1 ("If the person is a DDA client, you may assume that he or she is PASRR eligible.").) Third, Defendants ignore evidence that they had placed Mr. Dunakin on a list of individuals who were DDA clients, who were living in nursing homes, and who they believed needed to have PASRR Level II evaluations. (See Hamburger Decl. Ex. H at 64:9-65:7.) Fourth, Defendants ignore evidence that, since 1999, they had considered Mr. Dunakin to have a "related condition" to intellectual disability due to his muscular dystrophy and his severe adaptive behaviors (id. Ex. J (attaching letter from DSHS to Mr. Dunakin dated April 12, 1999, stating that he is eligible for state services "based on the scores you received on the assessment tool Inventory for Client and Agency Planning (ICAP)")), and they had provided corresponding services, including supported employment and personal care services (id. Ex. I at 43, 45). Finally, in contravention to Dr. Kishel's declaration, Mr. Dunakin submits declarations from Dr. Hill in which she opines that Mr. Dunakin has a "related condition" to intellectual disability as defined in 42 C.F.R. § 435.1010. (Hill Decl. ¶ 2; see also 2d Hill Decl.) All of the foregoing evidence creates issues of fact with respect to Mr. Dunakin's Title XIX claims. Accordingly, the court denies Defendants' motion for partial summary judgment with respect to subparts one and four of claim four in the complaint.
Based on the foregoing, the court GRANTS in part and DENIES in part Defendants' motion for judgment on the pleadings and for partial summary judgment (Dkt. # 24). Specifically, the court grants dismissal with respect to Mr. Dunakin's claim based on the "comparability" requirement of the Medicaid Act as set forth in 42 U.S.C. § 1396a(a)(10)(B)(i), but the court also grants Mr. Dunakin leave to amend his complaint with respect to this claim within 30 days of the date of this order as described above. In all other respects, the court denies Defendants' motion. The court GRANTS Mr. Dunakin's motions for class certification (Dkt. # 16) and for partial summary judgment (Dkt. # 17) as described in detail above.
State law requires, in relevant part, that whenever DSHS is require to give notice, it "shall give notice to the person with a developmental disability and ... to at least one other person ... in the following order of priority: (a) A legal representative of the person with a developmental disability; (b) A parent or a person with a developmental disability who is eighteen years of age or older;...." RCW 71A.10.060(1)(a). The federal regulations further require the involvement a "legal representative" in PASRR evaluations, "if one has been designated under State law." 42 C.F.R. § 483.128(c)(2). DDA was aware of Mr. Dunakin's legal representation at the time of Mr. Watling's contact. Defendants' argument that the contact at issue related only to Mr. Dunakin's eligibility for DDA services, which "is not within the scope of this case or the scope of representation" is disingenuous as best. (See PSJ Resp. at 16.) First, Mr. Watling testified that his purpose in contacting Mr. Dunakin was to perform a Level II PASRR evaluation. (Hamburger Decl. Ex. H at 12:10, 15:14-18:6; see also Teed Decl. Ex. F at PROD-000013.) Second, Defendants have made Mr. Dunakins' eligibility for DDA services an issue in this case by conflating the eligibility requirements for state services with the PASRR process. (See infra §§ II.F, III.C.2.)
Defendants, however, also assert that they were entitled to provide notice only to Mr. Dunakin's mother in this instance and not to his counsel because Mr. Dunakin signed an "Authorization To Use or Disclose Protected Health Information" form listing "self" as his "Legal Representative Name." (See Teed Decl. Ex. E.) Mr. Duankin's attorneys respond that the form is suspect because it was Mr. Watling who filled out the form for Mr. Dunakin's signature. (PSJ Reply (Dkt. # 34) at 11-12.) However, it is unclear from the evidence cited whether Mr. Watling or someone from Mr. Dunakin's nursing facility actually filled out the form. (See 2d Hambureger Decl. (Dkt. # 37) Ex. P (attaching excerpts of Mr. Watling's Rule 30(b)(6) deposition) at 47:12-20.) In any event, the court concludes that it has insufficient information to make any determination regarding whether Mr. Dunakin's signature on the form represented a knowing and voluntary relinquishment of his right to have his counsel notified under RCW 71A.10.060(1)(a) or whether the form otherwise meets the requirements for waiving notice to counsel under RCW 71A.10.060(3). However, because Mr. Dunakin and his counsel do not request that the court take any specific action with respect to Mr. Watling's contact with Mr. Dunakin, the court need not decide this issue here. On the other hand, the court also declines to "strike" this portion of Mr. Dunakin's memoranda as requested by Defendants. Defendants' mere disagreement with Mr. Dunakin's attorneys concerning the import of Mr. Watling's contact with Mr. Dunakin without notice to counsel is not a proper basis for striking portions of Mr. Dunakin's memoranda.
