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pdf Housing Works v. LA County Answer to complaint

Published on 25 August 2016 In Welfare Complaint Library 3742 downloads

Housing Works V. LA County Answer.pdf

” 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- SMRH:474543503.2 FIRST AMENDED ANSWER TO COMPLAINT SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations GREGORY F. HURLEY, Cal. Bar No. 126791 [email protected] MICHAEL J. CHILLEEN, Cal. Bar No. 210704 [email protected] ISAIAH Z. WEEDN, Cal. Bar No. 229111 [email protected] 650 Town Center Drive, 4th Floor Costa Mesa, California 92626-1993 Telephone: 714.513.5100 Facsimile: 714.513.5130 Attorneys for Defendants COUNTY OF LOS ANGELES, COUNTY OF LOS ANGELES BOARD OF SUPERVISORS, and LOS ANGELES COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION Housing Works, Los Angeles Catholic Worker, Independent Living Center of Southern California, Inc., and Timothy Laraway, Plaintiffs, v. County of Los Angeles, County of Los Angeles Board of Supervisors, and Los Angeles County Department of Public Social Services, Defendants. Case No. 2:15-CV-08982 FIRST AMENDED ANSWER TO COMPLAINT Defendants County of Los Angeles, County of Los Angeles Board of Supervisors, and Los Angeles County Department of Public Social Services, (collectively hereinafter Defendants ), in answer to the Complaint of plaintiffs Housing Works, Los Angeles Catholic Worker, Independent Living Center of Case 2:15-cv-08982-GW-RAO Document 20 Filed 01\/11\/16 Page 1 of 23 Page ID #:97 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- SMRH:474543503.2 FIRST AMENDED ANSWER TO COMPLAINT Southern California, Inc., and Timothy Laraway (collectively hereinafter Plaintiffs ), admit, deny, and allege as follows: INTRODUCTION 1. In response to Paragraph 1 of the Complaint, Defendants deny each and every allegation. 2. In response to Paragraph 2 of the Complaint, Defendants are not required to answer legal conclusions and argument. Moreover, as to Plaintiffs’ factual allegations Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations. Defendants deny each and every allegation. 3. In response to Paragraph 3 of the Complaint, Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations and, on that basis, deny each and every allegation. 4. In response to Paragraph 4 of the Complaint, Defendants admit only that defendant Los Angeles County Department of Public Social Services ( DPSS ) is charged with administering General Relief benefits ( GR ) in Los Angeles County. Defendants deny each and every other allegation. 5. In response to Paragraph 5 of the Complaint, Defendants admit only that there are online applications for the CalFresh and CalWORKS programs, which are both separate from and independent of the GR benefits program. Defendants are not required to answer legal conclusions and argument. Except for the admissions specified herein, Defendants deny each and every other allegation. 6. In response to Paragraph 6 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 7. In response to Paragraph 7 of the Complaint, Defendants deny each and every allegation. Case 2:15-cv-08982-GW-RAO Document 20 Filed 01\/11\/16 Page 2 of 23 Page ID #:98 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- SMRH:474543503.2 FIRST AMENDED ANSWER TO COMPLAINT 8. In response to Paragraph 8 of the Complaint, Defendants deny each and every allegation. 9. In response to response to Paragraph 9 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 10. In response to response to Paragraph 10 of the Complaint, Defendants admit only that the plaintiffs named in the Complaint are Housing Works, Independent Living Center of Southern California, Inc., Los Angeles Catholic Worker, and Timothy Laraway. Defendants deny each and every other allegation. JURISDICTION AND VENUE 11. In response to Paragraph 11 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 12. In response to Paragraph 12 of the Complaint, Defendants admit only that they reside in this District and provide certain services in this District. Defendants are not required to answer legal conclusions and argument. Except for the admissions specified herein, Defendants deny each and every other allegation. 13. In response to Paragraph 13 of the Complaint, Defendants admit only that they reside in this District. Defendants are not required to answer legal conclusions and argument. Except for the admissions specified herein, Defendants deny each and every other allegation. THE PARTIES 14. In response to Paragraph 14 of the Complaint, Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations and, on that basis, deny each and every allegation. 15. In response to Paragraph 15 of the Complaint, Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations and, on that basis, deny each and every allegation. Case 2:15-cv-08982-GW-RAO Document 20 Filed 01\/11\/16 Page 3 of 23 Page ID #:99 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- SMRH:474543503.2 FIRST AMENDED ANSWER TO COMPLAINT 16. In response to response to Paragraph 16 of the Complaint, Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations and, on that basis, deny each and every allegation. 17. In response to Paragraph 17 of the Complaint, Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations and, on that basis, deny each and every allegation. 18. In response to Paragraph 18 of the Complaint, Defendants admit only that Mr. Laraway applied for GR benefits at the Pomona DPSS office in 2013 and that his application was denied after he failed to attend a medical assessment appointment. Defendants deny each and every other allegation. 19. In response to Paragraph 19 of the Complaint, Defendants admit only that Mr. Laraway applied for GR benefits at the Metro East DPSS office and that his application was denied after he failed to attend a medical assessment appointment. Defendants deny each and every other allegation. 20. In response to Paragraph 20 of the Complaint, Defendants admit only that Mr. Laraway applied for GR benefits in August 2014, was designated temporary NSA, and approved for certain benefits. Defendants deny each and every other allegation. 21. In response to Paragraph 21 of the Complaint, Defendants admit only that defendant County of Los Angeles is a political subdivision of the State of California. Defendants are not required to answer legal conclusions and argument. Except for the admissions specified herein, Defendants deny each and every other allegation. 22. In response to Paragraph 22 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 23. In response to Paragraph 23 of the Complaint, Defendants admit that defendant Los Angeles County Department of Public Social Services is responsible Case 2:15-cv-08982-GW-RAO Document 20 Filed 01\/11\/16 Page 4 of 23 Page ID #:100 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- SMRH:474543503.2 FIRST AMENDED ANSWER TO COMPLAINT for administering the GR program, as well as other benefit programs, in Los Angeles County. STATEMENT OF FACTS 24. In response to Paragraph 24 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 25. In response to Paragraph 25 of the Complaint, Defendants admit only that defendant Los Angeles County Department of Public Social Services is responsible for administering the General Relief program in Los Angeles County. Defendants are not required to answer legal conclusions and argument. Except for the admissions specified herein, Defendants deny each and every other allegation. 26. In response to Paragraph 26 of the Complaint, Defendants admit that, among other eligibility requirements, a GR benefits recipient must be a Los Angeles County resident, have monthly net income of less than $221 (for one person), and have cash on hand or in a bank account of $50 or less at the time of application. Defendants further admit that the current version of the DPSS website includes the language quoted in Paragraph 26. 27. In response to Paragraph 27 of the Complaint, Defendants admit that a GR recipient, living alone is currently eligible to receive monthly GR benefits in the maximum amount of $221. Defendants are not required to answer legal conclusions and argument. Except for the admissions specified herein, Defendants deny each and every other allegation. 28. In response to Paragraph 28 of the Complaint, Defendants deny each and every allegation. 29. In response to Paragraph 29 of the Complaint, as to Plaintiffs’ allegations concerning the purported experiences and\/or perceptions of certain, unidentified applicants, Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations and, on that basis, deny each and Case 2:15-cv-08982-GW-RAO Document 20 Filed 01\/11\/16 Page 5 of 23 Page ID #:101 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- SMRH:474543503.2 FIRST AMENDED ANSWER TO COMPLAINT every one of these allegations. As to all other allegations, Defendants deny each and every one of them. 30. In response to Paragraph 30 of the Complaint, as to Plaintiffs’ allegations concerning the purported experiences and\/or perceptions of certain, unidentified applicants, Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations and, on that basis, deny each and every one of these allegations. As to all other allegations, Defendants deny each and every one of them. 31. In response to Paragraph 31 of the Complaint, Defendants deny each and every allegation. 32. In response to Paragraph 32 of the Complaint, Defendants admit that GR applicants are required to submit their applications in person at a DPSS office in Los Angeles County and that applicants may encounter lines during this process. Defendants deny each and every other allegation. 33. In response to Paragraph 33 of the Complaint, Defendants admit that GR applicants are required to pass through a security checkpoint before entering a DPSS office. As to Plaintiffs’ allegations concerning the purported experiences and\/or perceptions of certain, unidentified applicants, Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations and, on that basis, deny each and every one of these allegations. As to all other allegations, Defendants deny each and every one of them. 34. In response to Paragraph 34 of the Complaint, Defendants admit that GR applicants are provided with an application packet from DPSS personnel and that the applicant may encounter lines during this process . Defendants deny each and every other allegation. 35. In response to Paragraph 35 of the Complaint, Defendants admit that those GR applicants who have not previously obtained and completed their application packet may choose to complete their application packet in the DPSS Case 2:15-cv-08982-GW-RAO Document 20 Filed 01\/11\/16 Page 6 of 23 Page ID #:102 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- SMRH:474543503.2 FIRST AMENDED ANSWER TO COMPLAINT office’s lobby. As to Plaintiffs’ allegations concerning the purported experiences and\/or perceptions of certain, unidentified applicants, Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations and, on that basis, deny each and every one of these allegations. As to all other allegations, Defendants deny each and every one of them. 36. In response to Paragraph 36 of the Complaint, Defendants admit that GR applicants are required to submit their application packet to and meet with a DPSS caseworker and that applicants may encounter some waiting time during this process. As to Plaintiffs’ allegations concerning the purported experiences and\/or perceptions of certain, unidentified applicants, Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations and, on that basis, deny each and every one of these allegations. As to all other allegations, Defendants deny each and every one of them. 37. In response to Paragraph 37 of the Complaint, Defendants admit that during a GR applicant’s initial meeting with a DPSS caseworker, the caseworker will, among other things, review the application and may, at that time, designate the applicant as employable or unemployable based on the applicant’s statements as to his or her ability to work and\/or documentation from a medical or mental healthcare provider concerning the applicant’s ability to work. As to Plaintiffs’ allegations concerning the purported experiences and\/or perceptions of certain, unidentified applicants, Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations and, on that basis, deny each and every one of these allegations. As to all other allegations, Defendants deny each and every one of them. 38. In response to Paragraph 38 of the Complaint, Defendants admit that GR applicants identified as potentially NSA are referred for an evaluation by Department of Mental Health personnel who are co-located with DPSS. Defendants admit that such evaluations are typically scheduled to occur on the same day as the Case 2:15-cv-08982-GW-RAO Document 20 Filed 01\/11\/16 Page 7 of 23 Page ID #:103 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- SMRH:474543503.2 FIRST AMENDED ANSWER TO COMPLAINT initial caseworker interview but may, in certain circumstances, be scheduled for a later date. Defendants further admit that applicants may encounter wait times during this process. As to Plaintiffs’ allegations concerning the purported experiences and\/or perceptions of certain, unidentified applicants, Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations and, on that basis, deny each and every one of these allegations. As to all other allegations, Defendants deny each and every one of them. 39. In response to Paragraph 39 of the Complaint, Defendants admit that for those GR applicants not identified as potentially NSA during the caseworker meeting, the next steps in the application process are fingerprinting and issuance of an Electronic Benefits Transfer (EBT) card and that applicants may encounter wait times during these steps. Defendants deny each and every other allegation. 40. In response to Paragraph 40 of the Complaint, Defendants admit that certain applicants are required to submit to DPSS certain verifications in order to complete the GR application process. As to Plaintiffs’ allegations concerning the purported experiences and\/or perceptions of certain, unidentified applicants, Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations and, on that basis, deny each and every one of these allegations. As to all other allegations, Defendants deny each and every one of them. 41. In response to Paragraph 41 of the Complaint, Defendants admit that some GR applicants and recipients have mental disabilities and that the NSA program is intended, in part, to afford these individuals reasonable accommodations. Defendants are not required to answer legal conclusions and argument. Except for the admissions specified herein, Defendants deny each and every other allegation. 42. In response to Paragraph 42 of the Complaint, Defendants deny each and every allegation. Case 2:15-cv-08982-GW-RAO Document 20 Filed 01\/11\/16 Page 8 of 23 Page ID #:104 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- SMRH:474543503.2 FIRST AMENDED ANSWER TO COMPLAINT 43. In response to Paragraph 43 of the Complaint, as to Plaintiffs’ allegations concerning the purported experiences and\/or perceptions of certain, unidentified applicants, Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations and, on that basis, deny each and every one of these allegations. As to all other allegations, Defendants deny each and every one of them. 44. In response to Paragraph 44 of the Complaint, Defendants deny each and every allegation. 45. In response to Paragraph 45 of the Complaint, Defendants admit that DPSS personnel conduct lobby sweeps to, among other things, help identify potentially NSA GR applicants. As to all other allegations, Defendants deny each and every one of them. 46. In response to Paragraph 46 of the Complaint, as to Plaintiffs’ allegations concerning the purported experiences and\/or perceptions of certain, unidentified applicants, Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations and, on that basis, deny each and every one of these allegations. As to all other allegations, Defendants deny each and every one of them. 47. In response to Paragraph 47 of the Complaint, Defendants deny each and every allegation. 48. In response to Paragraph 48 of the Complaint, Defendants admit that DPSS caseworkers utilize ABP 4029 to screen certain GR applicants for mental disabilities. As to all other allegations, Defendants deny each and every one of them. 49. In response to Paragraph 49 of the Complaint, Defendants admit that in 2014, DPSS processed approximately 240,507 GR applications and designated approximately 18,267 of those applicants as NSA. Defendants further admit that in 2014, DPSS approved approximately 114,970 GR applicants to receive benefits and Case 2:15-cv-08982-GW-RAO Document 20 Filed 01\/11\/16 Page 9 of 23 Page ID #:105 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10- SMRH:474543503.2 FIRST AMENDED ANSWER TO COMPLAINT that approximately 16% of those approved applicants were designated as NSA. As to Plaintiffs’ allegations concerning other organizations’ alleged estimates, Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations and, on that basis, deny each and every one of these allegations. As to all other allegations, Defendants deny each and every one of them. 50. In response to Paragraph 50 of the Complaint, Defendants admit that the application process for the CalWORKs program administered by DPSS, which is separate from and independent of the GR benefits program, may include a voluntary screening for applicants to help identify potential barriers to employment. As to Plaintiffs’ allegations concerning other organizations’ alleged use of particular screening tools, Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations and, on that basis, deny each and every one of these allegations. As to all other allegations, Defendants deny each and every one of them. 51. In response to Paragraph 51 of the Complaint, Defendants deny each and every allegation. 52. In response to Paragraph 52 of the Complaint, Defendants admit that, under certain circumstances, GR applicants may be designated as temporary NSA. As to all other allegations, Defendants deny each and every one of them. 53. In response to Paragraph 53 of the Complaint, Defendants deny each and every allegation. 54. In response to Paragraph 54 of the Complaint, as to Plaintiffs’ allegations concerning the purported experiences and\/or perceptions of certain, unidentified applicants, Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations and, on that basis, deny each and every one of these allegations. As to all other allegations, Defendants deny each and every one of them. Case 2:15-cv-08982-GW-RAO Document 20 Filed 01\/11\/16 Page 10 of 23 Page ID #:106 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -11- SMRH:474543503.2 FIRST AMENDED ANSWER TO COMPLAINT 55. In response to Paragraph 55 of the Complaint, Defendants are not required to answer legal conclusions and argument and, on that basis, deny each and every allegation. 56. In response to Paragraph 56 of the Complaint, Defendants deny each and every allegation. 57. In response to Paragraph 57 of the Complaint, Defendants deny each and every allegation. 58. In response to Paragraph 58 of the Complaint, Defendants admit that for GR applicants designated as employable, an Employment Needs Evaluation conducted at a DPSS office is a mandatory part of the GR application process, that the Employment Needs Evaluation captures applicant information that will identify job readiness and barriers to employment, and that an applicant’s failure to participate in the Employment Needs Evaluation may result in the denial of benefits. As to all other allegations, Defendants deny each and every one of them. 59. In response to Paragraph 59 of the Complaint, Defendants admit that GR applicants designated as employable are required to attend an orientation for the General Relief Opportunities to Work program ( GROW ), that the orientation consists of a half-day classroom activity followed by a one-on-one interview between the participant and the GROW Case Manager, and that an applicant’s failure to attend the orientation may result in the denial of benefits. Defendants further admit that GR applicants may participate, on a strictly voluntary basis, in the Early Job Search program. Defendants further admit that certain GR recipients who are both designated as employable and enrolled in GROW may participate in a three-week program entitled Job Readiness Training. As to all other allegations, Defendants deny each and every one of them. 60. In response to Paragraph 60 of the Complaint, Defendants admit that participation in the GROW program is mandatory for GR recipients who are designated as employable and that non-compliance with this requirement may, Case 2:15-cv-08982-GW-RAO Document 20 Filed 01\/11\/16 Page 11 of 23 Page ID #:107 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -12- SMRH:474543503.2 FIRST AMENDED ANSWER TO COMPLAINT ultimately lead to the loss of GR benefits. As to all other allegations, Defendants deny each and every one of them. 61. In response to Paragraph 61 of the Complaint, Defendants admit that GR recipients designated employable are required to submit a Quarterly Eligibility Report once every three months stating, among other things, any changes in the recipient’s income, household composition, or property and that non- compliance with this requirement may, ultimately lead to the loss of GR benefits. As to all other allegations, Defendants deny each and every one of them. 62. In response to Paragraph 62 of the Complaint, Defendants admit that GR recipients designated employable who comply with program requirements may receive GR for nine months in a 12-month period. As to all other allegations, Defendants deny each and every one of them. 63. In response to Paragraph 63 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 64. In response to Paragraph 64 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 65. In response to Paragraph 65 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 66. In response to Paragraph 66 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 67. In response to Paragraph 67 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. Case 2:15-cv-08982-GW-RAO Document 20 Filed 01\/11\/16 Page 12 of 23 Page ID #:108 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -13- SMRH:474543503.2 FIRST AMENDED ANSWER TO COMPLAINT 68. In response to Paragraph 68 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 69. In response to Paragraph 69 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 70. In response to Paragraph 70 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 71. In response to Paragraph 71 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 72. In response to Paragraph 72 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 73. In response to Paragraph 73 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 74. In response to Paragraph 74 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 75. In response to Paragraph 75 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 76. In response to Paragraph 76 of the Complaint, Defendants deny each and every allegation. 77. In response to Paragraph 77 of the Complaint, as to Plaintiffs’ allegations concerning the purported experiences and\/or perceptions of certain, Case 2:15-cv-08982-GW-RAO Document 20 Filed 01\/11\/16 Page 13 of 23 Page ID #:109 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -14- SMRH:474543503.2 FIRST AMENDED ANSWER TO COMPLAINT unidentified GR applicants, Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations and, on that basis, deny each and every one of these allegations. As to all other allegations, Defendants deny each and every one of them. 78. In response to Paragraph 78 of the Complaint, Defendants deny each and every allegation. 79. In response to Paragraph 79 of the Complaint, Defendants deny each and every allegation. FIRST CAUSE OF ACTION AMERICANS WITH DISABILITIES ACT 42 U.S.C. 12132 80. In response to Paragraph 80 of the Complaint, Defendants incorporate their responses to the previously alleged paragraphs of the Complaint. 81. In response to Paragraph 81 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 82. In response to Paragraph 82 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 83. In response to Paragraph 83 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 84. In response to Paragraph 84 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 85. In response to Paragraph 85 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. Case 2:15-cv-08982-GW-RAO Document 20 Filed 01\/11\/16 Page 14 of 23 Page ID #:110 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -15- SMRH:474543503.2 FIRST AMENDED ANSWER TO COMPLAINT 86. In response to Paragraph 86 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 87. In response to Paragraph 87 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 88. In response to Paragraph 88 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 89. In response to Paragraph 89 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 90. In response to Paragraph 90 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 91. In response to Paragraph 91 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 92. In response to Paragraph 92 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 93. In response to Paragraph 93 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 94. In response to Paragraph 94 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. Case 2:15-cv-08982-GW-RAO Document 20 Filed 01\/11\/16 Page 15 of 23 Page ID #:111 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -16- SMRH:474543503.2 FIRST AMENDED ANSWER TO COMPLAINT 95. In response to Paragraph 95 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 96. In response to Paragraph 96 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 97. In response to Paragraph 97 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. SECOND CAUSE OF ACTION SECTION 504 OF THE REHABILITATION ACT OF 1973 29 U.S.C. 794 98. In response to Paragraph 98 of the Complaint, Defendants incorporate their responses to the previously alleged paragraphs of the Complaint. 99. In response to Paragraph 99 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 100. In response to Paragraph 100 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 101. In response to Paragraph 101 of the Complaint, Defendants admit that each of them receive federal funds. 102. In response to Paragraph 102 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 103. In response to Paragraph 103 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. Case 2:15-cv-08982-GW-RAO Document 20 Filed 01\/11\/16 Page 16 of 23 Page ID #:112 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -17- SMRH:474543503.2 FIRST AMENDED ANSWER TO COMPLAINT 104. In response to Paragraph 104 of the Complaint, Defendants deny each and every allegation. 105. In response to Paragraph 105 of the Complaint, Defendants deny each and every allegation. 106. In response to Paragraph 106 of the Complaint, Defendants deny each and every allegation. 107. In response to Paragraph 107 of the Complaint, Defendants deny each and every allegation. 108. In response to Paragraph 108 of the Complaint, Defendants deny each and every allegation. 109. In response to Paragraph 109 of the Complaint, Defendants deny each and every allegation. 110. In response to Paragraph 110 of the Complaint, Defendants deny each and every allegation. THIRD CAUSE OF ACTION CALIFORNIA GOVERNMENT CODE 11135 111. In response to Paragraph 111 of the Complaint, Defendants incorporate their responses to the previously alleged paragraphs of the Complaint. 112. In response to Paragraph 112 of the Complaint, Defendants are not required to answer legal conclusions and argument. Defendants deny each and every allegation. 113. In response to Paragraph 113 of the Complaint, Defendants admit that each of them receive funds from the State of California. 114. In response to Paragraph 114 of the Complaint, Defendants deny each and every allegation. 115. In response to Paragraph 115 of the Complaint, Defendants deny each and every allegation. Case 2:15-cv-08982-GW-RAO Document 20 Filed 01\/11\/16 Page 17 of 23 Page ID #:113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -18- SMRH:474543503.2 FIRST AMENDED ANSWER TO COMPLAINT 116. In response to Paragraph 116 of the Complaint, Defendants deny each and every allegation. 117. In response to Paragraph 117 of the Complaint, Defendants deny each and every allegation. 118. In response to Paragraph 118 of the Complaint, Defendants deny each and every allegation. 119. In response to Paragraph 119 of the Complaint, Defendants deny each and every allegation. In addition, Defendant asserts the following affirmative defenses with respect to all of Plaintiff’s causes of actions and claims. These affirmative defenses are proffered with the caveat that Defendants have not had the opportunity to undertake any discovery in this matter and Plaintiffs have not provided indeed, have refused to provide their initial disclosures. Accordingly, Defendants reserve the right to amend this Answer to include additional affirmative defenses and\/or additional factual bases for affirmative defenses stated below to the extent Defendants deem such amendment(s) necessary. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE (Failure to State a Claim) 1. The Complaint, and each and every claim therein, fails to state a claim for which relief can be granted and should, therefore, be dismissed. SECOND AFFIRMATIVE DEFENSE (Lack of Standing) 2. Plaintiffs lack standing to pursue their alleged claims. THIRD AFFIRMATIVE DEFENSE (Statute of Limitations) 3. Plaintiffs’ claims are barred to the extent that they are based on alleged denials of benefits more than two years prior to the date the Complaint was filed. Case 2:15-cv-08982-GW-RAO Document 20 Filed 01\/11\/16 Page 18 of 23 Page ID #:114 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -19- SMRH:474543503.2 FIRST AMENDED ANSWER TO COMPLAINT Cal. Civ. Proc. 335.1; see, e.g., Californians for Disability Rights, Inc. v. California Dept. of Transp., 2009 WL 2982840, *1 (N.D. Cal. 2009) (California’s two-year limitations period for personal injury actions applies to federal disability discrimination claims brought in California). FOURTH AFFIRMATIVE DEFENSE (Equal Opportunity\/Effective Access) 4. Plaintiffs had an equal opportunity to benefit from the benefits identified in the Complaint. For example, even if certain features of the benefits’ application\/approval process mentioned in the Complaint allegedly did not comply with applicable access standards, any alleged noncompliance was de minimis, the benefits were equally accessible despite the features’ alleged noncompliance, and\/or Plaintiffs were able to access the benefits. FIFTH AFFIRMATIVE DEFENSE (Demanded Accommodations Would Violate the ADA) 5. The potential accommodations mentioned in the Complaint are not reasonable because, if implemented, they would, themselves, constitute a violation of the Americans with Disabilities Act. SIXTH AFFIRMATIVE DEFENSE (Privilege) 6. Defendants’ conduct was privileged because it was undertaken pursuant to the terms of the applicable laws, regulations, orders, and approvals relating to provision of the benefits and programs identified in the Complaint. SEVENTH AFFIRMATIVE DEFENSE (Undue Burden) 7. Insofar as Defendants have not made alterations to the benefits\/program application process at issue, which Plaintiff contends should have been made, those alterations were not and are not required under federal or California law, and any Case 2:15-cv-08982-GW-RAO Document 20 Filed 01\/11\/16 Page 19 of 23 Page ID #:115 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -20- SMRH:474543503.2 FIRST AMENDED ANSWER TO COMPLAINT requirements to make those alterations would impose an undue burden upon Defendants. EIGHTH AFFIRMATIVE DEFENSE (Estoppel) 8. Plaintiffs are estopped by their conduct from recovering any relief under the Complaint. NINTH AFFIRMATIVE DEFENSE (Waiver) 9. Plaintiffs’ claims are barred, in whole or in part, by the doctrine of waiver. TENTH AFFIRMATIVE DEFENSE (Failure to Mitigate Damages) 10. Plaintiffs failed to properly mitigate their alleged damages and therefore are precluded from recovering those alleged damages. ELEVENTH AFFIRMATIVE DEFENSE (Indispensable Party) 11. Plaintiffs’ alleged claims are barred, in whole or in part, because of their failure to name an indispensable party or parties, including but not limited to parties responsible for providing mental health care or other relevant services or benefits to Plaintiffs and\/or Plaintiffs’ clients. TWELFTH AFFIRMATIVE DEFENSE (Fundamental Alteration) 12. Any allegedly wrongful acts or omissions performed by Defendants or their agents, if there were any, do not subject Defendants to liability because the relief demanded in the Complaint would, if granted, result in a fundamental alteration of Defendants’ services. Case 2:15-cv-08982-GW-RAO Document 20 Filed 01\/11\/16 Page 20 of 23 Page ID #:116 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -21- SMRH:474543503.2 FIRST AMENDED ANSWER TO COMPLAINT THIRTEENTH AFFIRMATIVE DEFENSE (Mootness) 13. Plaintiffs’ claims are barred under the doctrine of mootness because the barriers alleged by Plaintiffs, if there were any, have been remediated. FOURTEENTH AFFIRMATIVE DEFENSE (Reasonable Modifications to Policies, Practices and Procedures) 14. Plaintiffs’ claims are barred because Defendants made and\/or were willing to make reasonable modifications to their policies, practices, and\/or procedures to accommodate Plaintiffs’ alleged disabilities. FIFTEENTH AFFIRMATIVE DEFENSE (No Private Right Of Action) 15. Plaintiffs’ claims are barred because there is no private right of action to enforce Defendants’ Self-Evaluation and Transition Plan. SIXTEENTH AFFIRMATIVE DEFENSE (Accessible When Viewed In Their Entirety) 16. Plaintiffs’ claims are barred because Defendants’ services, programs and activities are readily accessible to and usable by Plaintiff when viewed in their entirety. SEVENTEENTH AFFIRMATIVE DEFENSE (Lack of Notice) 17. Plaintiffs’ claims are barred because Plaintiffs failed to provide any notice to Defendants regarding the alleged accessibility issues prior to filing this lawsuit. EIGHTEENTH AFFIRMATIVE DEFENSE (Laches) 18. Plaintiffs’ claims are barred under the doctrine of laches. Case 2:15-cv-08982-GW-RAO Document 20 Filed 01\/11\/16 Page 21 of 23 Page ID #:117 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -22- SMRH:474543503.2 FIRST AMENDED ANSWER TO COMPLAINT NINETEENTH AFFIRMATIVE DEFENSE (Torts Claims Act; Failure to Exhaust Administrative Remedies) 19. Plaintiffs’ claims are barred because they failed to comply with the Tort Claims Act, including, without limitation, the claim presentation requirements and thus Plaintiffs failed to exhaust their administrative remedies. PRAYER WHEREFORE, Defendants pray that this Court enter a judgment as follows: 1. That the Complaint be dismissed with prejudice and that judgment be entered in favor of Defendants; 2. That Plaintiffs take nothing by way of their Complaint; 3. That Defendants be awarded their costs of suit incurred in defense of this action, including their reasonable attorney’s fees; and 4. For such further and other relief as the Court may deem just and proper. Dated: January 11, 2016 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP By \/s\/ Isaiah Z. Weedn GREGORY F. HURLEY MICHAEL J. CHILLEEN ISAIAH Z. WEEDN Attorneys for Defendants COUNTY OF LOS ANGELES, COUNTY OF LOS ANGELES BOARD OF SUPERVISORS, and LOS ANGELES COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES Case 2:15-cv-08982-GW-RAO Document 20 Filed 01\/11\/16 Page 22 of 23 Page ID #:118 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -23- SMRH:474543503.2 FIRST AMENDED ANSWER TO COMPLAINT DEMAND FOR JURY TRIAL Defendants hereby demand a trial by jury. Dated: January 11, 2016 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP By \/s\/ Isaiah Z. Weedn GREGORY F. HURLEY MICHAEL J. CHILLEEN ISAIAH Z. WEEDN Attorneys for Defendants COUNTY OF LOS ANGELES, COUNTY OF LOS ANGELES BOARD OF SUPERVISORS, and LOS ANGELES COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES Case 2:15-cv-08982-GW-RAO Document 20 Filed 01\/11\/16 Page 23 of 23 Page ID #:119 ”

pdf Housing Works V. LA County Complaint for Unlawful Discrimination Against Persons with Mental Health Issues

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Housing Works V. LA County Complaint .pdf

” 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 la-1302790 CLAUDIA MENJIVAR (SBN #291981) [email protected] LEGAL AID FOUNDATION OF LOS ANGELES 5228 Whittier Boulevard Los Angeles, CA 90022 Telephone: (213) 640-3940 Facsimile: (213) 640-3911 ROBERT D. NEWMAN (SBN #86534) [email protected] WESTERN CENTER ON LAW AND POVERTY 3701 Wilshire Boulevard, Suite 208 Los Angeles, CA 90010-2826 Telephone: (213) 235-2619 Facsimile: (213) 487-4727 ANNA RIVERA (SBN #239601) [email protected] DISABILITY RIGHTS LEGAL CENTER 256 S. Occidental Boulevard, Suite B Los Angeles, CA 90057 Telephone: (213) 736-1031 Facsimile: (213) 736-1428 SEAN P. GATES (SBN #186247) [email protected] MORRISON & FOERSTER LLP 707 Wilshire Boulevard Los Angeles, CA 90017-3543 Telephone: (213) 892-5200 Facsimile: (213) 892-5454 (Additional counsel listed on following page) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Housing Works, Los Angeles Catholic Worker, Independent Living Center of Southern California, Inc., and Timothy Laraway, Plaintiffs, v. County of Los Angeles, County of Los Angeles Board of Supervisors, and Los Angeles County Department of Public Social Services, Defendants. Case No. 2:15-cv-08982 COMPLAINT FOR UNLAWFUL DISCRIMINATION AGAINST PERSONS WITH MENTAL DISABILITIES DEMAND FOR JURY TRIAL Case 2:15-cv-08982 Document 1 Filed 11\/18\/15 Page 1 of 29 Page ID #:1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 la-1302790 Additional counsel: YOLANDA ARIAS (SBN #130025) [email protected] BARBARA SCHULTZ (SBN #168766) [email protected] RYAN BRADLEY (SBN #211255) [email protected] MATTHEW CLARK (SBN #233736) [email protected] LEGAL AID FOUNDATION OF LOS ANGELES 5228 Whittier Boulevard Los Angeles, CA 90022 Telephone: (213) 640-3923 Facsimile: (213) 640-3911 ANTIONETTE D. DOZIER (SBN #244437) [email protected] WESTERN CENTER ON LAW AND POVERTY 3701 Wilshire Boulevard, Suite 208 Los Angeles, CA 90010-2826 Telephone: (213) 235-2619 Facsimile: (213) 487-4727 KARA JANSSEN (SBN #274762) [email protected] DISABILITY RIGHTS LEGAL CENTER 256 S. Occidental Boulevard, Suite B Los Angeles, CA 90057 Telephone: (213) 736-1031 Facsimile: (213) 736-1428 RYAN MALLOY (SBN #253512) [email protected] MORRISON & FOERSTER LLP 707 Wilshire Boulevard Los Angeles, CA 90017-3543 Telephone: (213) 892-5200 Facsimile: (213) 892-5454 Case 2:15-cv-08982 Document 1 Filed 11\/18\/15 Page 2 of 29 Page ID #:2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 la-1302790 INTRODUCTION 1. This lawsuit challenges the systematic, unlawful, and wrongful denial of subsistence benefits to the most needy and vulnerable citizens in Los Angeles County\u2014indigent persons with mental or developmental disabilities. 2. The County of Los Angeles has a statutory duty to provide General Relief (GR) benefits to indigent residents of Los Angeles County. GR is the program of last resort for residents who are unable to support themselves, are unsupported by other means, and do not qualify for any other cash-aid program. GR benefits consist of a meager $221 per month. GR recipients have been described as the poorest of the poor. Roughly half of GR recipients are homeless. 3. A disproportionately large percentage of GR applicants have mental and\/or developmental disabilities (collectively, mental disabilities ). Each year, thousands of indigent residents of Los Angeles County are unable to secure GR benefits to which they are entitled due to their mental disabilities. 4. Defendant Los Angeles County Department of Public Social Services (DPSS) is charged with administering GR in Los Angeles County. DPSS has implemented a complex, time-consuming process for applying for GR benefits. Applicants typically must complete a long application packet and spend long hours, if not several days, in loud, crowded, and chaotic DPSS offices. For persons with serious mental disabilities such as schizophrenia, bipolar disorder, and severe depression, the application process is a daunting and insurmountable barrier to securing GR benefits. 5. There are simple ways that DPSS could make the GR application process more accessible to persons with mental disabilities. DPSS could, for example, allow online applications for GR benefits. DPSS already has an online application process in place for CalFresh (food stamp), CalWORKs (welfare for families), and other services. A similar online application process for GR would allow friends and social workers to assist applicants with mental disabilities in Case 2:15-cv-08982 Document 1 Filed 11\/18\/15 Page 3 of 29 Page ID #:3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 la-1302790 completing applications for GR benefits. 6. Additionally, DPSS could employ a mental-health screening tool near the beginning of the GR application process. DPSS could then expedite and simplify the application process for individuals who screen positive for mental disabilities and assist those individuals in completing the process. DPSS also could direct individuals who screen positive for mental disabilities to on-site mental health specialists for a more thorough mental health assessment. 7. DPSS’s discrimination against persons with mental disabilities does not end with its burdensome GR application process. The requirements that DPSS imposes for obtaining and maintaining GR benefits are even more onerous. For example, individuals must participate in three weeks of job training before their GR applications will be approved. Furthermore, to continue receiving GR benefits, the individuals must spend 80 additional hours every month in the job-readiness program. For many individuals with mental disabilities, these requirements are unreasonable and unrealistic. 8. DPSS purports to solve the above-discussed problems through its Needs Special Assistance (NSA) program. But the accommodations that DPSS offers through the NSA program are inadequate, especially during the initial stages of the GR application process, when many applicants with mental disabilities give up on the process and forego benefits to which they are entitled. Furthermore, even according to the County’s own statistics, DPSS systematically under-identifies persons with serious mental disabilities. In addition, when DPSS does identify an individual as NSA, DPSS usually designates the person temporary NSA. Then, after a short time period has expired, DPSS denies the person any accommodations, without any clinical assessment that he or she is capable of complying with DPSS’s onerous requirements. 9. Defendants’ discrimination against persons with mental disabilities and failure to provide reasonable accommodations violate the Americans with Case 2:15-cv-08982 Document 1 Filed 11\/18\/15 Page 4 of 29 Page ID #:4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 la-1302790 Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973 ( Section 504 ), and Section 11135 of the California Government Code ( Section 11135 ). 10. Plaintiffs are Housing Works, Independent Living Center of Southern California, Inc., Los Angeles Catholic Worker (collectively, Organizational Plaintiffs ) and Timothy Laraway. Each Plaintiff seeks injunctive and declaratory relief from Defendants’ ongoing violations of the ADA, Section 504, and Section 11135. In addition, Mr. Laraway seeks monetary relief to compensate for the injuries he incurred from Defendants’ failure to provide him with the GR benefits to which he was lawfully entitled in a timely fashion. JURISDICTION AND VENUE 11. This Court has subject-matter jurisdiction over Plaintiffs’ causes of action under the ADA and Section 504 pursuant to 28 U.S.C. 1331 and 1343. This Court has supplemental jurisdiction over Plaintiffs’ cause of action under Section 11135 pursuant to 28 U.S.C. 1367. The facts giving rise to Plaintiffs’ cause of action under Section 11135 are substantially the same as those giving rise to Plaintiffs’ causes of action under the ADA and Section 504. Plaintiffs also seek declaratory relief pursuant to 28 U.S.C. 2201 et seq. 12. The Court has personal jurisdiction over Defendants at least because they reside in this District and provide services in this District and because a substantial part of the events and omissions giving rise to Plaintiffs’ claims occurred in this District. 13. Venue is proper pursuant to 28 U.S.C. 1391(b) at least because Defendants reside in this District and because a substantial part of the events and omissions giving rise to Plaintiffs’ claims occurred in this District. THE PARTIES A. Plaintiffs 14. Plaintiff Housing Works (HW) is a nonprofit organization providing extensive services to chronically homeless persons in Los Angeles County who Case 2:15-cv-08982 Document 1 Filed 11\/18\/15 Page 5 of 29 Page ID #:5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 la-1302790 struggle with serious mental illness. The majority of HW clients are trying to obtain GR, on GR, or transitioned from GR to Supplemental Security Income (SSI). Approximately 85 percent of HW clients on GR are NSA eligible. HW’s office is located in Hollywood, California. HW’s mission is to create accessible housing and service options that model, with respect and dignity, sustainable, environmentally sensitive, and affordable communities with people of limited resources. After conducting medical and social assessments, HW locates permanent supportive housing tailored to address its clients’ individual health and addiction needs. Once its clients are housed, HW provides on-site, holistic services such as mental health counseling, job placement, and assistance with applying for public benefits, such as GR and SSI. As explained below, Defendants’ failure to provide GR benefits to qualified individuals with mental disabilities, in violation of the ADA, Section 504, and Section 11135, has diverted HW’s time and resources to providing subsistence-level assistance to those individuals and has frustrated HW’s organizational goals. 15. Plaintiff Independent Living Center of Southern California (ILCSC) is a nonprofit organization dedicated to providing services to people with disabilities while educating the community. ILCSC has offices in Van Nuys and Lancaster, California. ILCSC provides job coaching, vocational training, homemaker training, socialization training, classes on disability rights, housing referrals, and many other services to residents of Los Angeles County who are persons with disabilities, older adults, or veterans. ILCSC also provides subsistence-level assistance, such as food and shelter, to indigent persons, including persons with mentally disabilities. As explained below, Defendants’ failure to provide GR benefits to qualified individuals with mental disabilities, in violation of the ADA, Section 504, and Section 11135, has diverted ILCSC’s time and resources to providing subsistence- level assistance to those individuals and has frustrated ILCSC’s organizational goals. Case 2:15-cv-08982 Document 1 Filed 11\/18\/15 Page 6 of 29 Page ID #:6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 la-1302790 16. Plaintiff Los Angeles Catholic Worker (LACW) is an unincorporated association that is part of the lay Catholic Worker movement founded over eighty years ago to feed the hungry, shelter the homeless, care for the sick, clothe the naked, and visit the prisoner. LACW operates a free soup kitchen and hospitality house for homeless guests, provides free blankets, toiletries, and reading glasses for the homeless, purchases special shopping carts for homeless people to store their personal property, provides hospice care for the dying in downtown Los Angeles, publishes a Christian newspaper, and engages in political advocacy. Many individuals using LACW services are on GR and are NSA eligible. As explained below, Defendants’ failure to provide GR benefits to qualified persons with mental disabilities, in violation of the ADA, Section 504, and Section 11135, has diverted LACW’s time and resources to providing subsistence-level assistance to those individuals and has frustrated LACW’s organizational goals. 17. Plaintiff Timothy Laraway is a resident of Los Angeles County and a 57-year-old man suffering from multiple mental disorders, including post-traumatic stress disorder, anxiety, depression, and bi-polar disorder. Mr. Laraway has been hospitalized and under psychiatric care because of his mental disorders, and has taken medication to treat them. Mr. Laraway believes he also has a learning disability and problems with his memory. Mr. Laraway’s mental conditions render him unable to earn an income, and he has experienced periods of homelessness. 18. Mr. Laraway attempted to apply for GR benefits in or about April 2013 at the Pomona DPSS office. Mr. Laraway informed the DPSS worker that he had mental illnesses and memory problems, but he was not screened for NSA or given any special assistance. The DPSS worker instructed Mr. Laraway to appear for an off-site medical evaluation the following day, but refused Mr. Laraway’s request that she write down the appointment information to help him remember it. Mr. Laraway missed the appointment because he became confused and overslept, so his GR application was denied. During these events, DPSS did not Case 2:15-cv-08982 Document 1 Filed 11\/18\/15 Page 7 of 29 Page ID #:7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 la-1302790 undertake any investigation to determine what would constitute reasonable accommodations for Mr. Laraway. 19. Mr. Laraway applied again for GR in or about January 2014 at the Metro East #15 DPSS office. Again, Mr. Laraway informed the DPSS worker of his mental illnesses, but DPSS did not provide any accommodation. Again, Mr. Laraway was instructed to report for an off-site medical appointment, but he was unable to keep the appointment for reasons connected with his mental impairments. Mr. Laraway returned to DPSS to request a new appointment, but the DPSS worker said that she could not reschedule him because he had missed too many appointments already, and that his application would be automatically denied. Again, during these events, DPSS did not undertake any investigation to determine what would constitute reasonable accommodations for Mr. Laraway. 20. With the assistance of an advocate from the Legal Aid Foundation of Los Angeles, Mr. Laraway re-applied for GR benefits in August 2014, and was finally designated temporary NSA and approved for benefits. DPSS, however, has never provided Mr. Laraway with any compensation for the 16-month period between April 2013 and August 2014 when he was prevented from obtaining GR because of DPSS’s failure to reasonably accommodate his mental disorders. B. Defendants 21. Defendant County of Los Angeles is a political subdivision of the State of California. Pursuant to Welfare and Institutions Code 17000, County of Los Angeles is required to provide general assistance to eligible indigent residents who lack any other means of support. 22. Defendant Board of Supervisors of Los Angeles County is the legislative body charged by law with adopting standards of general assistance aid and care for indigent residents in Los Angeles County pursuant to Welfare and Institutions Code 17001. 23. Defendant Los Angeles County Department of Public Social Services Case 2:15-cv-08982 Document 1 Filed 11\/18\/15 Page 8 of 29 Page ID #:8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 la-1302790 is responsible for administering the GR program, as well as other benefit programs, in Los Angeles County. STATEMENT OF FACTS A. California’s General Relief Program 24. California Welfare and Institutions Code 17000 provides that each county in California shall relieve and support all incompetent, poor, indigent persons, and those incapacitated by age, disease, or accident, lawfully resident therein, when such persons are not supported and relieved by their relatives or friends, by their own means, or by state hospitals or other state or private institutions. 25. To fulfill the mandates of 17000, the counties in California provide indigent adults with financial assistance known as either general assistance or general relief. In Los Angeles County, the program is called General Relief and is administered by DPSS. 26. Eligibility for the County’s GR program is limited to those destitute residents who have $50 or less in cash or in a bank account and whose income is less than $221 per month. According to DPSS’s website, [a]n average GR case consists of one person, living alone, with no income or resources. 27. A GR recipient living alone receives a maximum monthly grant of $221. The grant is supposed to cover a GR recipient’s housing, utilities, food, clothing, transportation, and other basic necessities of life. B. DPSS’s Complex GR Application Process 28. DPSS has implemented a complex, time-consuming process for applying for GR benefits. The process discriminates against persons with mental disabilities and imposes undue barriers to their access to GR benefits. 29. For example, the GR application process discriminates against persons who suffer from social anxiety. Social anxiety is a symptom of a wide spectrum of mental disorders, including psychosis, schizophrenia, major depression, anxiety Case 2:15-cv-08982 Document 1 Filed 11\/18\/15 Page 9 of 29 Page ID #:9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 la-1302790 disorders, and post-traumatic stress disorder. Persons with social anxiety are frequently discouraged from applying for GR, or give up during the application process, because it requires spending many hours (or even days) in a DPSS office, which is typically crowded, noisy, and chaotic. 30. As another example, the GR application process discriminates against persons who have cognitive disorders. Persons with cognitive disorders are often unable to complete the application process due to its complexity. 31. A non-exhaustive list of the steps of the GR application process is set forth below. These steps, both individually and collectively, discriminate against persons with mental disabilities such as social anxiety and cognitive disorders and improperly obstruct their access to GR benefits, for the reasons explained in the preceding paragraphs. Particular steps of the GR process discriminate against persons with mental disabilities in other ways, as set forth below. 32. As an initial matter, DPSS requires that GR applicants submit their applications in person at one of the 14 DPSS offices in Los Angeles County. Upon arriving at the DPSS office, applicants are often required to stand in line outside for a long period of time just to enter the office. 33. Next, applicants must go through a security checkpoint. Persons with mental disorders such as schizophrenia and post-traumatic stress disorder are often intimidated by the security guards and thus forego applying for GR benefits. Upon information and belief, DPSS fails to ensure that guards are adequately trained on awareness of and sensitivity to persons with mental disabilities. 34. Upon entering the lobby of the DPSS office and checking in, applicants must obtain an application packet from a Case Opening Clerk. The line or wait time to obtain the application packet can be over an hour long. 35. After receiving the GR application packet, applicants then try to find a place in the lobby to complete the application packet. Often there is no seating available, so they end up standing or sitting on the floor. The GR application Case 2:15-cv-08982 Document 1 Filed 11\/18\/15 Page 10 of 29 Page ID #:10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 la-1302790 packet is lengthy and complex. Typically, applicants receive no assistance in completing the packet, even when they suffer from serious mental disabilities. Applicants with mental disabilities often give up and forego GR benefits to which they are entitled. 36. Applicants who manage to complete the application packet cannot simply submit it at that time. They instead are required to wait in the DPSS office to meet with a caseworker. Applicants routinely spend several hours\u2014or even the entire day\u2014waiting for a meeting with a caseworker, all the time straining to hear their name called out over the din of noise in the office. Applicants often avoid leaving the lobby for any reason\u2014even to go to the bathroom\u2014out of fear that they will miss the announcement of their meeting with a caseworker. Many applicants are also afraid to step outside for a break from the lobby because they will be required to wait in the outside lines and go through another security check before coming back in. The long period of waiting in a noisy DPSS office can be intolerable for persons with mental disorders such as schizophrenia, attention deficit order, bipolar disorder, and severe depression. Those persons often give up and forego GR benefits to which they are entitled. 37. When applicants finally meet with caseworkers, the caseworkers review the applications, decide who is eligible for GR benefits, and categorize those individuals who are deemed eligible as employable or unemployable. It is only at this point in the process\u2014after hours of waiting\u2014that DPSS makes any serious effort to determine whether an applicant has mental disabilities. And that effort is a poor one. In practice, caseworkers typically categorize applicants as employable unless the applicants say they are unemployable. Persons with mental disabilities often respond to caseworkers that they are employable, even if they cannot realistically maintain a job, because they do not understand the question, are reticent to discuss their disability, or incorrectly believe that they meet the definition of employable. Furthermore, as discussed below, the NSA screening Case 2:15-cv-08982 Document 1 Filed 11\/18\/15 Page 11 of 29 Page ID #:11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 la-1302790 protocol employed by DPSS is defective and fails to identify large numbers of persons who have mental disabilities. 38. Applicants who are screened as potentially NSA are referred for an evaluation by Department of Mental Health (DMH) or Adult Protective Services (APS). Although DMH and APS evaluators are co-located with DPSS, an applicant screened as potentially NSA must often wait hours in the DPSS office for an evaluation. If a DMH or APS evaluator is unavailable, applicants are scheduled for an appointment, requiring them to return to the DPSS office, go through the security lines again, and wait in the DPSS office again. 39. Applicants not screened as potentially NSA return to the lobby and wait yet again for their names to be called for fingerprinting. After providing fingerprints, applicants return to the lobby to wait to be called by the cashier to receive an Electronic Benefits Transfer (EBT) card. 40. Within the next 30 days, GR applicants are required to return to the DPSS office, check in, and provide documentary proof of eligibility to the caseworkers. Applicants with mental disabilities often are unable to satisfy these further requirements due to their mental disabilities. As a consequence, the applicants are unable to obtain GR benefits to which they are entitled. C. DPSS’s Deficient NSA Program 41. Defendants recognize that many GR applicants and recipients have significant mental disabilities that require accommodation if those persons are to secure and maintain the benefits to which they are entitled. In the 1980s, in response to a lawsuit in state court, Defendants established the NSA program. The NSA program is ostensibly intended to accommodate persons with mental disabilities in applying for, obtaining, and maintaining GR benefits. In actuality, the NSA program as implemented by Defendants falls far short of their legal obligations under the ADA, Section 504, and Section 11135. 42. There are at least four fundamental flaws in the NSA program. First, Case 2:15-cv-08982 Document 1 Filed 11\/18\/15 Page 12 of 29 Page ID #:12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 la-1302790 the NSA program provides few, if any, accommodations for individuals with mental disabilities in the initial stages of the GR application process, before they meet with caseworkers. As detailed above, the initial stages of the process impose barriers that prevent many individuals with mental disabilities from obtaining GR benefits. Because DPSS rarely, if ever, designates individuals NSA until after they meet with caseworkers\u2014typically several hours into the application process\u2014the NSA program fails to address that problem. 43. Second, although DPSS claims that applicants with mental disabilities can request accommodations during the application process, DPSS only recently began to implement a procedure by which the applicants can make a request for accommodations, but DPSS has not trained its staff on providing appropriate accommodations. Furthermore, persons with mental disabilities are often unable or unwilling to request accommodations for their mental disabilities, either due to the disabilities themselves or to the stigma associated with them. 44. Third, DPSS’s method of identifying individuals as NSA under-identifies individuals with mental disabilities. 45. DPSS employs a two-stage process for screening individuals to be referred to mental health professionals for a mental disability assessment. In the first screening stage, DPSS relies upon its employees to identify individuals who may have mental disabilities by observing their outward behavior and appearance in the DPSS office. DPSS claims that its employees perform such observations during lobby sweeps. But in reality, to the extent that lobby sweeps occur, they are too short and superficial in most instances to assess whether a person has a mental disability. 46. In reality, the only significant instance in which DPSS employees have an opportunity to make observations that might indicate that an applicant is mentally disabled is when a caseworker meets with an applicant. This meeting typically takes place several hours into the application process. Many persons with Case 2:15-cv-08982 Document 1 Filed 11\/18\/15 Page 13 of 29 Page ID #:13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 la-1302790 mental disabilities do not make it to the meeting because they already have given up on their attempt to obtain GR benefits. 47. Regardless, Defendants’ reliance on the observations of DPSS employees to screen for mental disabilities is inadequate. DPSS employees generally lack the education, experience, and training necessary to identify persons with mental disabilities. DPSS does not conduct any employee training at all concerning developmental disabilities, as opposed to mental illness. 48. The second screening stage occurs if a DPSS caseworker suspects, based upon his or her observations, that an individual has a mental disability. The employee then asks that individual questions from a form called ABP 4029. DPSS’s use of this form fails to identify many individuals who have mental disabilities. As just one example of the form’s deficiencies, it only screens for mental illness; it does not screen at all for developmental disabilities. 49. The County’s own statistical data provides strong evidence that DPSS refers too few individuals for mental health evaluations. In 2014, DPSS processed 240,507 applications for GR but designated only 18,267 of those applicants as NSA. Of those applicants that were approved (114,970), only 16 percent received NSA status. By contrast, the Los Angeles Homeless Services Authority estimates that 39.5 percent of the homeless identified in the Los Angeles County Continuum of Care area (L.A. County except Glendale, Pasadena, and Long Beach) in 2015 suffer from mental illness, developmental disability, or brain injury. 50. DPSS easily could improve its process for identifying individuals with mental disabilities. DPSS could, for example, administer a voluntary mental health screen to all GR applicants rather than limit the screen to those who either identify themselves or are identified by the DPSS employees as potentially NSA. The County already administers a voluntary mental health screen to all persons who have been classified as employable for the CalWORKs program and a mandatory screen for substance abuse on intake. In addition, DPSS could administer a Case 2:15-cv-08982 Document 1 Filed 11\/18\/15 Page 14 of 29 Page ID #:14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 la-1302790 validated mental health screening tool to all GR applicants at the beginning of the application process. Upon information and belief, the State of New York employs such a screening tool in its social services offices. 51. As another example, DPSS could use mental health data from other sources, such as emergency room records and DMH records, to screen GR applicants for mental disabilities. Upon information and belief, DPSS already possesses such data but does not use it for screening purposes. 52. Fourth, DPSS has adopted an improper practice of designating individuals temporary NSA. DPSS designates over 70% of participants in the NSA program temporary NSA as opposed to permanent NSA. 53. DPSS’s designation of individuals with mental disabilities as temporary NSA is arbitrary and capricious. It is impossible to predict whether a person will overcome his or her mental disabilities, even if the person engages in mental health treatment. DPSS has no basis for assuming that a person’s mental disabilities will only be temporary. 54. Individuals who are designated temporary NSA lose all the accommodations afforded by the NSA program after a short time period. Typically, this time period is between three and nine months. When the time period expires, DPSS ceases to provide accommodations to individuals who had been designated temporary NSA and automatically classifies them as employable, even when DPSS has no evidence that they have overcome their mental disabilities and no evidence that they are able to meet the general requirements to maintain GR benefits. As a consequence of being deprived of accommodations, persons designated temporary NSA often lose GR benefits to which they are entitled. D. DPSS’s Onerous Requirements for Obtaining and Maintaining GR Benefits 55. The allegations in this section apply to individuals who have been deemed employable. In particular, these allegations apply to thousands of Case 2:15-cv-08982 Document 1 Filed 11\/18\/15 Page 15 of 29 Page ID #:15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 la-1302790 persons with mental disabilities whom DPSS failed to classify as NSA or whose temporary NSA status expired. 56. DPSS has imposed onerous requirements for obtaining and maintaining GR benefits both before and after an individual completes the application process. These requirements discriminate against persons with mental disabilities and impose unreasonable barriers to their access to GR benefits. 57. A non-exhaustive list of the requirements for obtaining and maintaining GR benefits is set forth below. All of these steps, both individually and collectively, discriminate against persons with mental disabilities such as social anxiety and cognitive disorders and improperly obstruct their access to GR benefits. 58. After completing their GR application (but before it is officially approved), applicants who have been classified as employable must attend an Employment Needs Evaluation at a District office to assess their job readiness and any employment barriers. DPSS insists that applicants report to a specific office selected from among the 14 DPSS offices in Los Angeles County, even if that office is inconvenient for the applicants. Applicants who do not report to that specific office cannot obtain GR benefits. 59. Applicants also must attend the General Relief Opportunities to Work (GROW) program\u2014a half-day classroom orientation followed by a personal interview. Some employable GR applicants are assigned to Early Job Search and are required to return to the District office on a weekly basis to submit proof of their job search. Other employable applicants are assigned to Rapid Employment and Promotion\u2014a series of workshops conducted by a contractor. The remaining employable applicants are assigned to three-week Job Skills and Preparation Class. Individuals who do not comply with these procedures are unable to obtain any GR benefits. 60. After their GR applications have been approved, all employable GR recipients are required to participate in the GROW program, at the specific office Case 2:15-cv-08982 Document 1 Filed 11\/18\/15 Page 16 of 29 Page ID #:16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 la-1302790 selected by DPSS, to receive benefits. DPSS imposes extensive, ongoing requirements on recipients classified as employable including job searches and job training. Employable GR recipients must complete at least 80 hours per month of GROW activities. Individuals who do not comply with these procedures lose their GR benefits. 61. Every three months, a recipient must complete and return a detailed Quarterly Eligibility Report ( QR 7 ) describing any intervening changes in the recipient’s status such as changes in income, living arrangements, or property. Individuals who do not comply with this requirement lose their GR benefits. 62. After nine months of receiving GR benefits, employable GR recipients are terminated from the GR program. For a three-month period, they are prohibited from receiving GR benefits\u2014even if they suffer from debilitating mental illnesses. Thus, Defendants force countless individuals with serious mental disabilities to live on the streets of Los Angeles with no benefits at all. E. Defendants’ Failure to Make Reasonable Accommodations 63. Defendants have failed to make reasonable accommodations for persons with mental disabilities who encounter the above-discussed barriers in applying for, obtaining, and maintaining GR benefits. A non-exhaustive list of examples of reasonable accommodations that Defendants have failed to make is provided below. 64. Defendants reasonably could, and should, allow online applications for GR benefits. This would allow friends and advocates of persons with mental disabilities to assist them in completing the application. That would reduce or eliminate the need for those persons to spend hours in DPSS offices. 65. Defendants reasonably could, and should, provide clearer and more effective procedures for individuals with mental disabilities to request accommodations in their efforts to apply for, obtain, and maintain GR benefits. Defendants have only recently begun to implement procedures aimed at providing a Case 2:15-cv-08982 Document 1 Filed 11\/18\/15 Page 17 of 29 Page ID #:17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 la-1302790 means to request accommodation, but Defendants have not sufficiently trained DPSS employees on providing reasonable accommodations to those with mental disabilities. 66. Defendants reasonably could, and should, provide a validated mental disability screening tool to all applicants for GR at the beginning of the GR application process. Upon implementing that screening tool, Defendants reasonably could, and should, expedite and simplify the GR application process for applicants who screen positive for mental disabilities and assist them in the application process. DPSS also reasonably could, and should, direct those applicants to co-located DMH or APS specialists for a follow-up mental health assessment. More generally, Defendants reasonably could, and should, employ a more accurate method of screening GR applicants for mental disabilities. 67. Defendants reasonably could, and should, provide better training to DPSS employees on identifying and working with persons with mental disabilities. 68. Defendants reasonably could, and should, reduce the time needed to complete the GR application process for those with mental disabilities. In particular, Defendants reasonably could, and should, ensure that the GR application process can be completed within about two hours of arrival at a DPSS office. Defendants also reasonably could, and should, ensure that the GR application process requires no more than one visit to a DPSS office. 69. Defendants reasonably could, and should, simplify and shorten the GR application packet. Defendants also reasonably could, and should, provide assistance in completing the application to applicants in DPSS lobbies. 70. Defendants reasonably could, and should, provide a means for individuals with mental disabilities to avoid the stress and strain of waiting to hear their name called out in a noisy environment, such as a board indicating persons’ place in line or providing a designated place for those with mental disabilities to wait for a caseworker to physically escort them to the interview. Case 2:15-cv-08982 Document 1 Filed 11\/18\/15 Page 18 of 29 Page ID #:18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 la-1302790 71. Defendants reasonably could, and should, eliminate or simplify their onerous requirements for obtaining and maintaining GR benefits after applicants have completed the application process. 72. Defendants reasonably could, and should, allow participants in the GR program to report to DPSS’s job-readiness program at the office of their choice. 73. Defendants reasonably could, and should, terminate their policy of designating individuals with mental disabilities temporary NSA without cause. In place of that policy, Defendants reasonably could, and should, assume that individuals with mental disabilities will continue to have those disabilities unless a trained medical practitioner has determined otherwise. 74. Defendants reasonably could, and should, do what certain outside organizations have been forced to do for their clients with mental disabilities, i.e., provide a person to walk through the application process with the mentally disabled individual, helping the applicant overcome the anxiety, stress, or other issues caused by the process. 75. Defendants reasonably could, and should, undertake community outreach efforts to ensure that indigent individuals with the most serious mental illnesses, who lack the ability to initiate the GR application process on their own, have an opportunity to obtain GR benefits. F. The Harm Caused to Organizational Plaintiffs 76. Defendants’ foregoing unlawful policies and procedures have caused thousands of persons with mental disabilities to be deprived of subsistence benefits to which they are entitled. HW, LACW, and ILCSC have all been forced to divert their resources to feeding, sheltering, and clothing those deprived individuals and have suffered frustration of their organizational missions as a consequence. 77. For example, many of HW’s mentally ill clients find the raucous DPSS offices to be so oppressive that they are unable to endure the time-consuming GR application process. Even when they can obtain their cash benefits, HW clients are Case 2:15-cv-08982 Document 1 Filed 11\/18\/15 Page 19 of 29 Page ID #:19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 la-1302790 often unable to request and receive an NSA screening and designation on their own. To ensure that their clients receive their $221 monthly benefit, HW assigns staff to personally conduct clients through the exhausting application process, providing advocacy and emotional support as needed. Thus, Defendants’ unlawful policies and practices have diverted HW’s resources and frustrated its organizational mission. 78. Similarly, if Defendants had afforded reasonable access to GR benefits to indigent persons with mental disabilities, then LACW would not have needed to provide as much subsistence-level support to those individuals, and could instead have dedicated more resources to its other advocacy and services, including buying specialized shopping carts for its homeless guests, which cost LACW 60 dollars each. Thus, Defendants’ unlawful policies and practices have diverted LACW’s resources and frustrated its organizational mission. 79. Similarly, if Defendants had afforded reasonable access to GR benefits to indigent persons with mental disabilities, then ILCSC would not have needed to provide subsistence-level support to many of those individuals and could instead have used those resources for job coaching, vocational training, homemaker training, socialization training, classes on disability rights, housing referrals, and other services. Thus, Defendants’ unlawful policies and practices have diverted ILCSC’s resources and frustrated its organizational mission. FIRST CAUSE OF ACTION AMERICANS WITH DISABILITIES ACT 42 U.S.C. 12132 80. Plaintiffs reallege and incorporate herein all previously alleged paragraphs of this Complaint. 81. Title II of the ADA, 42 U.S.C. 12132, provides that: [N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. Case 2:15-cv-08982 Document 1 Filed 11\/18\/15 Page 20 of 29 Page ID #:20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 la-1302790 82. The term disability includes persons with mental impairments that substantially limit one or more major life activities. 42 U.S.C. 12101(1). 83. Timothy Laraway is a qualified individual with a disability within the meaning of the ADA under 42 U.S.C. 12131(2). 84. Defendants are public entities within the meaning of the ADA under 42 U.S.C. 12131(1). 85. Title II of the ADA generally requires that public entities operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. 86. Defendants’ current policies, practices, and procedures in the administration of the GR program systematically fail to reasonably accommodate the needs of individuals with mental disabilities. 87. Congress directed the Department of Justice (DOJ) to write regulations implementing Title II’s prohibition against discrimination. 42 U.S.C. 12134. Pursuant to this mandate, the DOJ has issued regulations defining the forms of discrimination prohibited by Title II of the ADA. 28 C.F.R. 35.101 et seq. 88. Defendants have failed to make reasonable modifications to its policies, practices, and procedures in its administration of the GR program. Defendants’ failure to make reasonable modifications has resulted in discrimination against individuals on the basis of disability in violation of 28 C.F.R. 35.130(b)(7). 89. Defendants use criteria and methods of administration that have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the GR program with respect to persons with disabilities in violation of 28 C.F.R. 35.130(b)(3)(ii). 90. In providing the aid, benefits, and services associated with the GR program, Defendants may not deny mentally disabled individuals the equal Case 2:15-cv-08982 Document 1 Filed 11\/18\/15 Page 21 of 29 Page ID #:21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 la-1302790 opportunity to participate in or benefit from the aid, benefits, or services of said program. 28 C.F.R. 35.130(b)(l)(i). Further, Defendants may not provide mentally disabled individuals with an aid, benefit, or service that is not as effective in affording the same opportunity to obtain the same result, gain the same benefit, or reach the same level of achievement as provided to persons without disabilities. 28 C.F.R. 35.130(b)(1)(iii). 91. Defendants are similarly prohibited from imposing or applying eligibility criteria that screen out or tend to screen out an individual with a disability or class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the program being offered. 28 C.F.R. 35.130(b)(8). Defendants’ overly burdensome policies, procedures, and practices tend to screen out individuals with mental disabilities and are unnecessary for the provision of GR benefits. 92. Title II of the ADA requires Defendants to make reasonable modifications to the GR program to avoid discrimination against mentally disabled individuals on the basis of disability. 28 C.F.R. 35.130(b)(7). 93. Defendants’ policies, procedures, and practices operate to exclude persons with mental disabilities from GR benefits and discriminate against them solely on account of their disabilities, in violation of the ADA and the regulations promulgated pursuant thereto. Defendants’ policies, procedures, and practices have resulted in, or threaten to result in, discrimination against mentally disabled individuals in their unlawful exclusion from participation in, and denial and reduction of GR benefits. 94. Timothy Laraway has been injured by Defendants’ conduct violating the ADA. He has been wrongfully deprived of GR benefits to which he was entitled. Additionally, he has been subject to unlawful and discriminatory barriers Case 2:15-cv-08982 Document 1 Filed 11\/18\/15 Page 22 of 29 Page ID #:22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 la-1302790 in his efforts to secure and maintain GR benefits. Defendants were deliberately indifferent to Mr. Laraway’s mental disabilities. 95. Organizational Plaintiffs have also been injured by Defendants’ conduct violating the ADA. They have been forced to divert time and resources to providing assistance to individuals with mental disabilities who Defendants should have assisted. As a result, their organizational missions have been frustrated. 96. Defendants’ conduct constitutes an ongoing and continuous violation of the ADA and, unless restrained from doing so, Defendants will continue to violate the ADA. 97. The above-mentioned conduct, unless enjoined, will continue to inflict injuries for which Plaintiffs have no adequate remedy at law. SECOND CAUSE OF ACTION SECTION 504 OF THE REHABILITATION ACT OF 1973 29 U.S.C. 794 98. Plaintiffs reallege and incorporate herein all previously alleged paragraphs of this Complaint. 99. Section 504, 29 U.S.C. 794, provides that: [N]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of his or her disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . 100. Timothy Laraway is a qualified individual[] with a disability within the meaning of Section 504. 101. Defendants currently receive federal financial assistance and received federal financial assistance at all times relevant to this action. 102. The DOJ is charged under Executive Order 12250 with coordinating the implementation of Section 504. 28 C.F.R. 41.1. 103. In providing any aid, benefit, or service, a recipient of federal financial assistance may not . . . [d]eny a qualified handicapped person the Case 2:15-cv-08982 Document 1 Filed 11\/18\/15 Page 23 of 29 Page ID #:23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22 la-1302790 opportunity to participate in or benefit from the aid, benefit or service, [a]fford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others, [p]rovide a qualified handicapped person with an aid, benefit, or service that is not as effective in affording equal opportunity . . . as that provided to others, or [o]therwise limit a qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others[.] 45 C.F.R. 84.4(b)(i), (ii), (iii), and (vii). 104. Defendants use criteria and methods of administration that have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the GR program with respect to persons with disabilities and that subject persons with disabilities to discrimination in violation of 45 C.F.R. 84.4(b)(4)(i), (ii). 105. Defendants’ policies, procedures, and practices exclude persons with mental disabilities from the GR program and discriminate against them solely on account of their disabilities, in violation of Section 504 and the regulations promulgated pursuant thereto. Further, Defendants systematically fail and refuse to offer reasonable modifications and accommodations for individuals with mental disabilities. 106. Defendants’ policies, procedures and practices have resulted in, or threaten to result in, discrimination against mentally disabled individuals in their unlawful exclusion from participation in, and denial of, GR benefits. 107. Timothy Laraway has been injured by Defendants’ conduct violating Section 504. Solely by reason of his disabilities, Mr. Laraway has been wrongfully deprived of GR benefits to which he was entitled and has been subjected to unlawful and discriminatory barriers in his efforts to secure and maintain GR benefits. Defendants were deliberately indifferent to Mr. Laraway’s mental disabilities. Case 2:15-cv-08982 Document 1 Filed 11\/18\/15 Page 24 of 29 Page ID #:24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 la-1302790 108. Organizational Plaintiffs have also been injured by Defendants’ conduct violating Section 504. They have been forced to divert time and resources to providing assistance to individuals with mental disabilities who Defendants should have assisted. Solely by reason of their disabilities, those individuals were excluded from participation in and denied the benefits of the GR program. As a result, the organizational missions of Organizational Plaintiffs have been frustrated. 109. Defendants’ conduct constitutes an ongoing and continuous violation of Section 504 and unless restrained from doing so, Defendants will continue to violate Section 504. 110. The above-mentioned conduct, unless enjoined, will continue to inflict injuries for which Plaintiffs have no adequate remedy at law. THIRD CAUSE OF ACTION CALIFORNIA GOVERNMENT CODE 11135 111. Plaintiffs reallege and incorporate herein all previously alleged paragraphs of this Complaint. 112. California Government Code 11135 and the regulations promulgated thereunder prohibit discrimination against persons with disabilities by recipients of state funding, and provides in pertinent part, that: No person in the State of California shall, on the basis of . . . disability, be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated or administered by the state or any state agency, is funded directly by the state, or receives any financial assistance from the state. 113. Upon information and belief, Defendants have received substantial state financial assistance at all relevant times. Case 2:15-cv-08982 Document 1 Filed 11\/18\/15 Page 25 of 29 Page ID #:25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24 la-1302790 114. Defendants’ discriminatory policies and practices deny individuals with mental disabilities full and equal access to GR benefits in violation of California Government Code 11135 and the regulations promulgated thereunder. 115. Defendants have violated California Government Code 11135(b) through their conduct alleged herein. 116. Timothy Laraway has been injured by Defendants’ conduct violating California Government Code 11135. He has been wrongfully deprived of GR benefits to which he was entitled. Additionally, he has been subject to unlawful and discriminatory barriers in his efforts to secure and maintain GR benefits. Defendants were deliberately indifferent to Mr. Laraway’s mental disabilities. 117. Organizational Plaintiffs have also been injured by Defendants’ conduct violating California Government Code 11135. They have been forced to divert time and resources to providing assistance to individuals with mental disabilities who Defendants should have assisted. As a result, their organizational missions have been frustrated. 118. Defendants’ conduct constitutes an ongoing and continuous violation of California Government Code 11135. Unless restrained from doing so, Defendants will continue to violate California Government Code 11135. 119. The above-mentioned conduct, unless enjoined, will continue to inflict injuries for which Plaintiffs have no adequate remedy at law. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that this Court: 1. Declare that the challenged policies, procedures, and practices of Defendants are unlawful; 2. Issue preliminary and permanent injunctive relief prohibiting Defendants, their agents, employees, successors, and all persons acting in concert with them from discriminating against mentally disabled applicants for and recipients of GR assistance; Case 2:15-cv-08982 Document 1 Filed 11\/18\/15 Page 26 of 29 Page ID #:26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 la-1302790 3. Issue preliminary and permanent injunctive relief prohibiting Defendants, their agents, their employees, their successors, and all persons acting in concert with them from: a. Failing to provide reasonable accommodations to individuals with mental disabilities in the process for applying for, obtaining, and maintaining GR benefits; b. Denying approval of GR benefits for mentally disabled individuals who qualify financially for GR benefits and have not been afforded reasonable accommodations; c. Terminating GR benefits of mentally disabled individuals who qualify financially for GR benefits and have not been afforded reasonable accommodations; and d. Stripping individuals of NSA status without a clinical evaluation indicating that they no longer need accommodations to comply with GR requirements; 4. Award Timothy Laraway all general, special, compensatory, and consequential damages according to proof, including but not limited to appropriate monetary damages (including interest at the statutory rate); 5. Award Plaintiffs their costs and expenses, including attorneys’ fees; and 6. Order such other and further relief as the Court deems just and proper. Case 2:15-cv-08982 Document 1 Filed 11\/18\/15 Page 27 of 29 Page ID #:27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26 la-1302790 Dated: November 18, 2015 LEGAL AID FOUNDATION OF LOS ANGELES By: \/s\/ Yolanda Arias Yolanda Arias WESTERN CENTER ON LAW AND POVERTY By: \/s\/ Robert D. Newman Robert D. Newman DISABILITY RIGHTS LEGAL CENTER By: \/s\/ Anna Rivera Anna Rivera MORRISON & FOERSTER LLP By: \/s\/ Sean P. Gates Sean P. Gates Attorneys for Plaintiffs Case 2:15-cv-08982 Document 1 Filed 11\/18\/15 Page 28 of 29 Page ID #:28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27 la-1302790 DEMAND FOR JURY TRIAL In accordance with Rule 38(b) of the Federal Rules of Civil Procedure and Central District of California Local Rule 38.1, Plaintiffs hereby demand a jury trial on all issues triable by a jury. Dated: November 18, 2015 LEGAL AID FOUNDATION OF LOS ANGELES By: \/s\/ Yolanda Arias Yolanda Arias WESTERN CENTER ON LAW AND POVERTY By: \/s\/ Robert D. Newman Robert D. Newman DISABILITY RIGHTS LEGAL CENTER By: \/s\/ Anna Rivera Anna Rivera MORRISON & FOERSTER LLP By: \/s\/ Sean P. Gates Sean P. Gates Attorneys for Plaintiffs Case 2:15-cv-08982 Document 1 Filed 11\/18\/15 Page 29 of 29 Page ID #:29 ”

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Housing Works. V. LA County Memorandum of Points and Authorities in Support of Motion for.pdf

” 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLAUDIA MENJIVAR (SBN 291981) [email protected] LEGAL AID FOUNDATION OF LOS ANGELES 5228 Whittier Boulevard Los Angeles, CA 90022 Telephone: (213) 640-3940 Facsimile: (213) 640-3911 ROBERT D. NEWMAN (SBN 86534) [email protected] WESTERN CENTER ON LAW AND POVERTY 3701 Wilshire Boulevard, Suite 208 Los Angeles, CA 90010-2826 Telephone: (213) 235-2619 Facsimile: (213) 487-4727 ANNA RIVERA (SBN 239601) [email protected] DISABILITY RIGHTS LEGAL CENTER 256 S. Occidental Boulevard, Suite B Los Angeles, CA 90057 Telephone: (213) 736-1031 Facsimile: (213) 736-1428 ANNE RICHARDSON (SBN 151541) [email protected] PUBLIC COUNSEL 610 S. Ardmore Avenue Los Angeles, CA 90005 Telephone: (213) 385-2977 Facsimile: (213) 385-9089 (Additional counsel listed on following page) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Housing Works, Los Angeles Catholic Worker, Independent Living Center of Southern California, Inc., and Timothy Laraway, Plaintiffs, v. County of Los Angeles, County of Los Angeles Board of Supervisors, and Los Angeles County Department of Public Social Services, Defendant. Case No. 2:15-cv-08982 GW (RAOx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Date: July 11, 2016 Time: 8:30 a.m. Place: Courtroom 10, Before The Hon. George H. Wu Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 1 of 32 Page ID #:221 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Additional counsel: YOLANDA ARIAS (SBN 130025) [email protected] BARBARA SCHULTZ (SBN 168766) [email protected] RYAN BRADLEY (SBN 211255) [email protected] MATTHEW CLARK (SBN 233736) [email protected] LEGAL AID FOUNDATION OF LOS ANGELES 5228 Whittier Boulevard Los Angeles, CA 90022 Telephone: (213) 640-3923 Facsimile: (213) 640-3911 ANTIONETTE D. DOZIER (SBN 244437) [email protected] WESTERN CENTER ON LAW AND POVERTY 3701 Wilshire Boulevard, Suite 208 Los Angeles, CA 90010-2826 Telephone: (213) 235-2619 Facsimile: (213) 487-4727 KARA JANSSEN (SBN 274762) [email protected] DISABILITY RIGHTS LEGAL CENTER 256 S. Occidental Boulevard, Suite B Los Angeles, CA 90057 Telephone: (213) 736-1031 Facsimile: (213) 736-1428 DEEPIKA SHARMA (SBN 256589) [email protected] SARAH TRUESDELL (SBN 258642) [email protected] PUBLIC COUNSEL 610 S. Ardmore Avenue Los Angeles, CA 90005 Telephone: (213) 385-2977 Facsimile: (213) 385-9089 CHARLES S. BARQUIST (SBN 133785) [email protected] RYAN MALLOY (SBN 253512) [email protected] HERIBERTO ALVAREZ (SBN 307048) [email protected] MATTHEW HOFER (SBN 307055) [email protected] MORRISON & FOERSTER LLP 707 Wilshire Boulevard Los Angeles, CA 90017-3543 Telephone: (213) 892-5200 Facsimile: (213) 892-5454 Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 2 of 32 Page ID #:222 TABLE OF CONTENTS Page i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION ……………………………………………………………………………….. 1 II. FACTUAL BACKGROUND ……………………………………………………………….. 2 A. The General Relief Program …………………………………………………………….. 2 B. Defendants’ Mandatory In-Person GR Application Process Is Long, Complex, Intimidating, and Confusing ………………………………………………. 3 C. Defendants’ Mandatory In-Person GR Application Presents Unreasonable Barriers to Persons with Mental Disabilities ………………………………………. 8 D. Defendants’ NSA Program Is Insufficient to Overcome These Barriers . 10 E. Defendants Refuse to Lower These Barriers by Accepting Off-Site Applications …………………………………………………………………………………. 12 F. Defendants’ Mandatory In-Person GR Application Policy Has Diverted Plaintiffs’ Resources and Frustrated Their Mission ……………………………. 13 III. LEGAL STANDARD ………………………………………………………………………… 15 IV. ARGUMENT ……………………………………………………………………………………. 16 A. Plaintiffs Are Likely to Prevail on Their Claim that Defendants’ Mandatory In-Person GR Application Violates the Americans with Disabilities Act, the Rehabilitation Act, and California Government Code 11135 ………………………………………………………………………………………… 16 1. The Clients of Housing Works and ILC Are Qualified Individuals with a Disability ………………………………………………………………………………. 17 2. Defendants’ Policy Denies Mentally Disabled Applicants Meaningful Access to General Relief Benefits ………………………………………………. 17 3. Remote GR Applications Are a Reasonable Accommodation ………… 21 Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 3 of 32 Page ID #:223 TABLE OF CONTENTS (continued) Page ii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Plaintiffs and Their Clients Face Irreparable Harm, and the Balance of Hardships Tips Sharply in Their Favor …………………………………………….. 22 C. The Public Interest Favors Enforcement of the ADA and the Other Anti- Discrimination Laws ……………………………………………………………………… 24 V. CONCLUSION …………………………………………………………………………………. 25 Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 4 of 32 Page ID #:224 TABLE OF AUTHORITIES Page iii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASES Alexander v. Choate, 469 U.S. 287 (1985) ……………………………………………………………………………………………. 18 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) …………………………………………………………………………….. 15 Beno v. Shalala, 30 F.3d 1057 (9th Cir. 1994) ………………………………………………………………………………. 22 Caron Found. of Fla., Inc. v. City of Delray Beach, 879 F. Supp. 2d 1353 (S.D. Fla. 2012) ………………………………………………………………. 23 Communities Actively Living Indep. & Free v. City of L.A., No. CV 09-0287 CBM RZX, 2011 WL 4595993 (C.D. Cal. Feb. 10, 2011) …………………………………………………………………………………………………………………….. 19 Crowder v. Kitigawa, 81 F.3d 1480 (9th Cir. 1996) ………………………………………………………………….. 18, 19, 20 D.K. v. Solano Cty. Office of Educ., 667 F. Supp. 2d 1184 (E.D. Cal. 2009) …………………………………………………….. 16 Dahl v. HEM Pharma. Corp., 7 F.3d 1399 (9th Cir. 1993) ………………………………………………………………………………… 15 Enyart v. Nat’l Conference of Bar Exam’rs, Inc., 630 F.3d 1153 (9th Cir. 2011) …………………………………………………………………………….. 24 Ferguson v. City of Phoenix, 157 F.3d 668 (9th Cir. 1998) ………………………………………………………………………………. 18 Goldberg v. Kelly, 397 U.S. 254 (1970) ……………………………………………………………………………………………. 22 Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003) ……………………………………………………………………………….. 20 Lentini v. Cal. Ctr. for the Arts, Escondido, 370 F.3d 837 (9th Cir. 2004) ………………………………………………………………………………. 21 Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 5 of 32 Page ID #:225 TABLE OF AUTHORITIES (continued) Page iv 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lovell v. Chandler, 303 F.3d 1039 (9th Cir. 2002) …………………………………………………………………………….. 17 McGary v. City of Portland, 386 F.3d 1259 (9th Cir. 2004) …………………………………………………………………………….. 19 Mooney v. Pickett, 4 Cal. 3d 669 (1971) ……………………………………………………………………………………………… 1 PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001) ……………………………………………………………………………………………. 21 Price v. City of Stockton, 390 F.3d 1105 (9th Cir. 2004) ………………………………………………………………………. 15, 16 Robbins v. Super. Ct., 38 Cal. 3d 199 (1985) ………………………………………………………………………………………….. 22 Rodde v. Bonta, 357 F.3d 988 (9th Cir. 2004) ………………………………………………………………………………. 19 Rouser v. White, 707 F. Supp. 2d 1055 (E.D. Cal. 2010) ……………………………………………………………… 15 Step by Step, Inc. v. City of Ogdensburg, No. 7:15-CV-925, 2016 WL 1319081 (N.D.N.Y. Apr. 5, 2016) ……………………… 24 Stewart B. McKinney Found., Inc. v. Town Plan & Zoning Comm’n, 790 F. Supp. 1197 (D. Conn. 1992) ……………………………………………………………………. 23 Vivid Entm’t, LLC v. Fielding, 774 F.3d 566 (9th Cir. 2014) ………………………………………………………………………………. 15 Wong v. Regents of Univ. of Cal., 192 F.3d 807 (9th Cir. 1999) ………………………………………………………………………………. 21 Woods v. Alexandria Hous. Partners, L.P., No. CV-07-08262 MMM (JWJx), 2008 U.S. Dist. LEXIS 120289 (C.D. Cal. May 22, 2008) ……………………………………………………………………………………………… 23 Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 6 of 32 Page ID #:226 TABLE OF AUTHORITIES (continued) Page v 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Zukle v. Regents of Univ. of Cal., 166 F.3d 1041 (9th Cir. 1999) ……………………………………………………………. 16, 21 STATUTES 42 U.S.C. 12131(2) ……………………………………………………………………………………………………………. 17 12132 …………………………………………………………………………………………………………………. 16 California Government Code 11135 …………………………………………………………………………………………………………… 16, 25 Welfare & Institutions Code 17000 …………………………………………………………………………………………………………………… 2 OTHER AUTHORITIES 28 C.F.R. 35.130(b)(3) ……………………………………………………………………………………….. 18 35.130(b)(7) ……………………………………………………………………………………….. 21 29 C.F.R. 1630.2 ……………………………………………………………………………………… 17 DPSS Website, CalWorks HOW TO APPLY (http:\/\/dpss.lacounty.gov\/dpss\/calworks\/default.cfm) …………………………………. 13 DPSS Website, County of Los Angeles General Relief Policy https:\/\/dpss.lacounty.gov\/dpss\/GR\/pdf\/general_relief_policy.pdf ………………….. 3 DPSS Website, Health Care, How to Apply (https:\/\/dpss.lacounty.gov\/dpss\/health\/) ……………………………………………………. 13 DPSS Website, How to Apply (https:\/\/dpss.lacounty.gov\/dpss\/calfresh\/apply.cfm) …………………………………… 13 DPSS Website, Sign-In Page https:\/\/www.dpssbenefits.lacounty.gov\/ybn\/SignInPage.html …………………….. 13 J. Cook, et al., Prevalence of Psychiatric and Substance Use Disorders Among Single Mothers Nearing Lifetime Welfare Eligibility Limits, 66 Arch Gen. Psychiatry 249-58 (2009) …………………………………………………………. 3 Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 7 of 32 Page ID #:227 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Defendants County of Los Angeles, its Board of Supervisors and Department of Public Social Services provide subsistence-level benefits to indigent residents through their General Relief (GR) program. GR has long been the program of last resort for those who are desperately in need and do not qualify for any other aid program to obtain the means of life. Mooney v. Pickett, 4 Cal. 3d 669, 681 (1971). Defendants have implemented a burdensome and complex application process that denies meaningful access to GR benefits to persons with mental and cognitive disabilities. By this Motion, Plaintiffs seek a preliminary injunction to remove one fundamental barrier in that process: the County’s insistence that GR applications be submitted in person at DPSS offices. Defendants’ mandatory in-person GR application process poses often insurmountable barriers for applicants with mental disabilities. DPSS offices have long lines, crowded lobbies, and loud, chaotic conditions inside. The typical GR application process takes an entire day, and often more than one visit, where much of the time is spent standing in lines or in the waiting room straining to hear one’s name called over all the noise. As explained by Dr. Mark Ragins in his accompanying declaration, many people suffering from mental and cognitive disorders simply cannot overcome these barriers. Instead, such people frequently give up and leave the DPSS office before completing the application process. As a result, individuals with mental and\/or cognitive disabilities are denied meaningful access to the GR benefits to which they are entitled and which are critical to their survival. The County already accepts applications for CalWORKs cash aid, CalFresh food stamps, and Medi-Cal healthcare services by mail, online, and through numerous community organizations and partners. But Defendants refuse to allow GR applicants to submit applications off-site. If Defendants modified their policy to permit remote applications, individuals with mental disabilities could prepare Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 8 of 32 Page ID #:228 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 their GR application forms at home or in an advocate’s office and submit these forms without having to visit a DPSS office. The County’s discriminatory policies have caused Plaintiff Housing Works and Plaintiff Independent Living Center of Southern California (ILC) to expend significant resources on assisting their clients with mental disabilities to apply for and receive GR. Because the in-person application process is so burdensome and complicated, the case managers at Housing Works are forced to spend full days accompanying their clients to the DPSS offices, thus diverting their time and resources away from Housing Works’ core mission. For these reasons, Plaintiffs bring the instant motion for a preliminary injunction prohibiting the County from requiring mentally disabled individuals to submit their GR applications in-person at DPSS offices. Plaintiffs meet all the requirements for issuance of a preliminary injunction. Defendants’ conduct clearly violates the Americans with Disabilities Act and related federal and state statutes. Further, Plaintiffs face irreparable harm and the balance of hardships clearly tips in their favor, because of the urgent need for low-income people with mental disabilities to obtain GR benefits, and the ongoing harm to Plaintiffs’ clients, diversion of Plaintiffs’ resources, and frustration of Plaintiffs’ organizational missions. Finally, the public interest clearly favors the enforcement of the anti- discrimination laws. Accordingly, the Court should grant Plaintiffs’ motion. II. FACTUAL BACKGROUND A. The General Relief Program Welfare & Institutions Code 17000 requires counties to relieve and support all incompetent, poor, indigent persons, and those incapacitated by age, disease, or accident, lawfully resident therein, when such persons are not supported and relieved by their relatives or friends, by their own means, or by state hospitals or other state or private institutions. To fulfill this mandate, the County provides Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 9 of 32 Page ID #:229 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 financial assistance known as General Relief to indigent residents. GR is administered by DPSS. Defendants’ First Amended Answer (FAA) \u00b6 4. GR is the program of last resort for Los Angeles County residents. According to DPSS, approximately 60% of GR recipients are unsheltered homeless. See Declaration of Heriberto Alvarez Exhibit A at 1. Eligibility for the County’s GR program is limited to those destitute residents who have $50 or less and whose income is less than $221 per month. See County of Los Angeles General Relief Policy1 GR 42-211.1 & GR 44-101.1. A GR recipient living alone receives a maximum monthly grant of $221, which ostensibly covers the recipient’s housing, food, clothing, and personal needs. Id. at GR 44-201. A significant percentage of those eligible for GR suffers from mental disabilities. The Los Angeles Homeless Services Authority estimates that in 2016 30-40% of the homeless in the County suffered from mental illness, developmental disability, or brain injury. See H. Alvarez Exh. B at 25. Other estimates vary, but a significant portion of GR applicants have a mental disability.2 B. Defendants’ Mandatory In-Person GR Application Process Is Long, Complex, Intimidating, and Confusing Defendants only accept GR applications in-person at DPSS offices, and refuse to accept applications by mail, fax, email, or online. FAA \u00b6 32. For persons with mental disabilities, the most difficult part of applying for GR benefits is going to the DPSS office. The process of applying for GR is complex, frustrating, and time-consuming. Declaration of Anthony Ruffin \u00b6 10. The process includes 1 Available at https:\/\/dpss.lacounty.gov\/dpss\/GR\/pdf\/general_relief_policy.pdf. 2 See, e.g., J. Cook, et al., Prevalence of Psychiatric and Substance Use Disorders Among Single Mothers Nearing Lifetime Welfare Eligibility Limits, 66 Arch Gen. Psychiatry 249-58 (2009) (finding 44% of TANF recipients to have a mental disorder). Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 10 of 32 Page ID #:230 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the following steps: Step One: Travel to DPSS Office: Defendants require indigent residents to apply in-person at one of the 14 DPSS offices. FAA \u00b6 32. Step Two: Stand in Outside Line: Once GR applicants arrive at the DPSS office, they must stand outside in line, often for a long period of time, just to enter the office. Declaration of Karen Carson \u00b6 10 ( we usually wait forty-five minutes in line ); Ruffin Decl. \u00b6 12; Declaration of Ivan Galvez \u00b6 15; Declaration of Strider Lloyd \u00b6 9; Declaration of Charles Jarret \u00b6 16; FAA \u00b6 32 ( Defendants admit that GR applicants. . . may encounter lines during this process ). The lines are especially problematic for persons who suffer from anxiety and depression as they become restless, agitated and want to go home. Ruffin Decl. \u00b6 12. Security guards generally refuse requests to allow persons with mental disabilities to skip the line. Carson Decl. \u00b6 12; Declaration of Dr. Mark Ragins \u00b6 6. Step Three: Pass Through Security: At the end of the outside line, applicants must pass through a security checkpoint which often includes a pat-down inspection by security guards. FAA \u00b6 33; Carson Decl. \u00b6 11; Ruffin Decl. \u00b6\u00b6 13- 16; Declaration of Judy Diaz \u00b6 6. Persons with post-traumatic stress and other mental disorders are often frightened and intimidated by the security guards. Carson Decl. \u00b6 11; Ruffin Decl. \u00b6\u00b6 13-16; Diaz Decl. \u00b6 6; Ragins Decl. \u00b6 32. Step Four: Stand in Line to Receive GR Application: When they get inside, applicants must wait in another line to check in and obtain an application packet from a DPSS worker. FAA \u00b6 34; Carson Decl. \u00b6 14; Ruffin Decl. \u00b6 17; Ragins Decl. \u00b6 6; Declaration of Timothy Laraway \u00b6\u00b6 12-14; Diaz Decl. \u00b6 7; Galvez Decl. \u00b6\u00b6 10, 16. The DPSS lobbies are crowded and have numerous different Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 11 of 32 Page ID #:231 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 lines providing different services, and thus it is very difficult for applicants with mental disabilities to figure out which line they are supposed to stand in. See H. Alvarez Exhs. C (showing forty-one individuals waiting in the lobby), D (showing forty-nine individuals waiting in the lobby); Ragins Decl. \u00b6\u00b6 10-11; Laraway Decl. \u00b6\u00b6 12-14; Diaz Decl. \u00b6 8; Lloyd Decl. \u00b6 10. Even if they do find the correct line, it can be almost an hour long. Carson Decl. \u00b6 14; Ruffin Decl. \u00b6 17; Galvez Decl. \u00b6\u00b6 15-16. Persons with mental disorders are often overwhelmed by noisy and sometimes chaotic conditions in the DPSS lobby. Carson Decl. \u00b6 15; Ragins Decl. \u00b6\u00b6 8-12, 27-29; Laraway Decl. \u00b6 13; Diaz Decl. \u00b6 9. And it is extremely difficult for such persons to hear and understand DPSS employees behind the glass partitions. Ruffin Decl. \u00b6\u00b6 18-19. Step Five: Fill Out GR Application Paperwork: Once they have the GR application packet, applicants have to find a place in the lobby to fill it out. Ruffin Decl. \u00b6 20; Ragins Decl. \u00b6 6; Laraway Decl. \u00b6 14; Lloyd Decl. \u00b6\u00b6 10-11. As this packet asks complicated questions about an individual’s background, personal and financial situation, mentally disabled applicants frequently are unable to complete the GR paperwork on their own due to their mental health issues. Ruffin Decl. \u00b6 20; Ragins Decl. \u00b6\u00b6 18-20. Yet DPSS employees rarely, if ever, help GR applicants fill out the paperwork. Ruffin Decl. \u00b6 21; see also Diaz Decl. \u00b6\u00b6 14-17; Lloyd Decl. \u00b6\u00b6 15-16; Jarrett Decl. \u00b6 19; Carson Decl. \u00b6 17. Step Six: Wait for an Eligibility Worker to Accept the Application: Applicants who manage to complete the application packet cannot submit it immediately. Instead, they are required to wait in the DPSS office to meet with an eligibility worker. FAA \u00b6 36 ( GR applicants are required to submit their application packet to and meet with a DPSS caseworker and they may encounter some waiting time during this process. ). The wait can take hours, or Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 12 of 32 Page ID #:232 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 even the entire day, as applicants strain to hear their name called in the noisy waiting room. See H. Alvarez Exhs. E (showing estimated wait time of three hours to be called by eligibility worker), F (showing some individuals waiting for at least four hours to be interviewed), G (showing some individuals waiting for at least six hours to be interviewed); Carson Decl. \u00b6 14-15; Ruffin Decl. \u00b6 22; Laraway Decl. \u00b6\u00b6 14-15; Diaz Decl. \u00b6\u00b6 9-10; Lloyd Decl. \u00b6\u00b6 11-12. Applicants are afraid to leave the lobby for any reason\u2014even to go to the bathroom\u2014out of fear that they will miss their name being called. Carson Decl. \u00b6 16; Ruffin Decl. \u00b6 23; Diaz Decl. \u00b6 11; Jarrett Decl. \u00b6 17. Applicants cannot leave the lobby without being required to wait in the outside line again and go through another security check. Carson Decl. \u00b6 16; Diaz Decl. \u00b6 11. The long wait in a noisy DPSS office can be intolerable for persons with mental disorders, and the disputes that often break out among other DPSS clients are frightening to people with mental disorders. Carson Decl. \u00b6 15 (mentally disabled applicants spend the majority of their time worrying, wanting to leave . . . or dealing with other symptoms of their disease ); Ragins Decl. \u00b6\u00b6 33-34; Laraway Decl. \u00b6 26; Diaz Decl. \u00b6 11; Galvez Decl. \u00b6 15. Step Seven: Meet with an Eligibility Worker: When applicants finally meet with an eligibility worker, that worker reviews the application and decides whether the applicant is eligible for GR. FAA \u00b6 37; Laraway Dec. \u00b6 16. The worker also must categorize the applicant as employable or unemployable. FAA \u00b6 37. If an applicant appears to have serious mental disabilities, the eligibility worker is supposed to categorize the applicant as unemployable and refer him to Needs Special Assistance (NSA) screening, but in practice eligibility workers frequently categorize mentally disabled applicants as employable and fail to provide them with NSA assistance. See, e.g., Ruffin Decl. \u00b6 29 ( DPSS caseworkers have always classified my participants as Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 13 of 32 Page ID #:233 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 employable, even those who are schizophrenic and suffer the typical symptoms of talking to themselves and acting erratically. ); Galvez Decl. \u00b6\u00b6 10- 20; Laraway Decl. \u00b6\u00b6 7-9; Lloyd Decl. \u00b6\u00b6 15-17; Jarrett Decl. \u00b6 18. Step Eight: Mental Health Evaluation: If the DPSS eligibility worker believes an applicant is potentially NSA, then the applicant is required to continue waiting in the lobby, sometimes for hours, until a Department of Mental Health (DMH) or Adult Protective Services (APS) representative is available to evaluate the applicant. FAA \u00b6 38; Laraway Decl. \u00b6 19; Diaz Decl. \u00b6 19; Declaration of David Cash \u00b6 8; Jarrett Decl. \u00b6\u00b6 19-20. If a DMH or APS evaluator is unavailable, applicants are scheduled for a future appointment, requiring them to return to the DPSS office, go through the security lines again, and wait in the DPSS office again. See FAA \u00b6 38 ( evaluations are typically scheduled to occur on the same day . . . but may . . . be scheduled for a later date and applicants may encounter wait times during this process ); Ruffin Decl. \u00b6\u00b6 29-30; Ragins Decl. \u00b6 6; Cash Decl. \u00b6 9; Jarrett Decl. \u00b6\u00b6 19-20. Step Nine: Fingerprinting: Whether or not they are given a mental health evaluation, all GR applicants must wait additional time in the lobby for their names to be called for fingerprinting. See H. Alvarez Exh. E (showing estimated wait time of one and a half hours to be called for fingerprinting); FAA \u00b6 39; Ragins Decl. \u00b6 6; Laraway Decl. \u00b6\u00b6 22-23; Galvez Decl. \u00b6 10; Lloyd Decl. \u00b6 14. Step Ten: Receive EBT Card: After providing fingerprints, applicants must continue waiting in the lobby for additional time until they are called to receive an electronic balance transfer (EBT) card. FAA \u00b6 39; Ragins Decl. \u00b6 6. After spending an entire day in the DPSS office, applicants are finally permitted to leave. See, e.g., Laraway Decl. \u00b6\u00b6 12, 23 (Mr. Laraway arrived at the DPSS Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 14 of 32 Page ID #:234 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 office at 9:00 a.m., and was required to wait in the DPSS waiting room until 4:06 p.m. to complete his application). Step Eleven: Return to DPSS Office Within 30 Days with Documents: Within 30 days of their initial application, GR applicants are required to return to the DPSS office, wait in line, go through security, check in, and then provide documentary proof of eligibility to their eligibility worker. Ragins Decl. \u00b6 6; Lloyd Decl. \u00b6 18; FAA \u00b6 40. If applicants miss the appointment or are unable to provide documents to the satisfaction of DPSS workers, their GR applications are denied. Ragins Decl. \u00b6 6; Lloyd Decl. \u00b6 18; FAA \u00b6 40. C. Defendants’ Mandatory In-Person GR Application Presents Unreasonable Barriers to Persons with Mental Disabilities Dr. Mark Ragins\u2014Medical Director of the Mental Health America Village Integrated Service Agency in Long Beach, California\u2014has examined the GR application process. See Ragins Decl. \u00b6\u00b6 1-5. In his expert opinion, the GR application process presents barriers to persons with mental and developmental disabilities in that DPSS has imposed a series of tasks that are either impossible or exceedingly difficult for these persons to complete because of their disabilities and that also exacerbate these individuals’ disabilities, making them sicker to the extent that they cannot complete the task. Id. \u00b6 6; see also id. \u00b6\u00b6 7-30. First, persons with certain mental disorders, such as schizophrenia, psychosis, Post-Traumatic Stress Disorder, autism, and other developmental disabilities struggle with sorting relevant foreground information from unimportant background details. Id. \u00b6\u00b6 9, 11. Thus, when such persons find themselves in large and confusing DPSS lobbies, with multiple lines and windows and no instructions telling them what to do, they quickly become confused and fixate on unimportant details, rendering them unable to focus on the essential information necessary to Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 15 of 32 Page ID #:235 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 carry out the application process. Id. \u00b6\u00b6 8-10, 12. Similarly, persons with mania and anxiety easily become overstimulated by the DPSS lobby’s many signs, pictures, crowds of people, announcement of names, and lack of an obvious starting point. Id. \u00b6 11. Applicants with Obsessive-Compulsive Disorder also become overwhelmed by the office’s large amount of information presented in a disorderly manner, and become distressed as they attempt to organize the information. Id. As such, many mentally disabled applicants will find it impossible to begin the GR application process. Id. \u00b6 12. Second, the GR application process presents barriers to persons with mental disabilities because it requires them to sustain attention during an extended waiting period, struggling to hear their names called by DPSS workers in a noisy lobby on multiple occasions throughout the course of a day. Id. \u00b6\u00b6 14-16. Persons with mental disorders such as schizophrenia have severely curtailed attention spans and it is impossible for them to wait in this manner from an extended period of time. Id. \u00b6 14. And persons with other mental disorders such as social anxiety or paranoia may become preoccupied with trying to remain calm in the noisy, crowded environment, which can easily cause them to miss their name being called. Id. \u00b6 15. Third, Defendants’ complex ten-page GR application form presents an enormous barrier to persons with mental and\/or cognitive disabilities. Id. \u00b6\u00b6 18-26; see also H. Alvarez Exh. H (Defendants’ GR Application). The form requires applicants to answer 22 complicated, multi-step questions and to read through another 5 pages of dense wording written in ‘legalese.’ Ragins Decl. \u00b6 19. But persons with virtually any mental disorder have extreme difficulty completing multi-step, complex commands separated over time. Id. \u00b6 18. Persons with schizophrenia or developmental disabilities frequently are unable to understand questions and make abstract distinctions. Id. \u00b6\u00b6 18-23. And persons with mental or developmental disabilities often are functionally illiterate and cannot read or Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 16 of 32 Page ID #:236 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 understand complex legal language. Id. \u00b6 24. Hence, many GR applicants with disabilities cannot successfully apply for GR, either because they will make mistakes in the application or . . .they will not understand the instructions and give up in frustration. Id. \u00b6 20. Fourth, the GR application process discriminates against people with mental or developmental disabilities by requiring them to complete tasks that exacerbate their disabilities and make them sicker to the extent that they cannot complete the task. Id. \u00b6\u00b6 6, 31-42. The security inspection process, which frequently includes a pat-down and walking in front of a one-way mirror, can exacerbate the delusions of people suffering from paranoia. Id. \u00b6 32. Conditions in the DPSS office lobby can also trigger and worsen symptoms for those whose mental disability is related to a past trauma, such as PTSD, sexual abuse and panic disorders. Id. \u00b6\u00b6 33-34. Similarly, the noise and crowds in the lobby can trigger trauma and cause persons with anxiety disorders or PTSD to become hypervigilant, or extremely agitated and stressed. Id. \u00b6\u00b6 35-37. The GR application process can also worsen symptoms of depression and learned helplessness, causing mentally ill persons to feel worthless and powerless to the point where they shut down and become unable to complete the process. Id. \u00b6\u00b6 38-42. D. Defendants’ NSA Program Is Insufficient to Overcome These Barriers Defendants have adopted a Needs Special Assistance program intended to accommodate persons with mental disabilities. See FAA \u00b6 41. As currently implemented, however, the NSA program is utterly inadequate to address the barriers imposed by the mandatory in-person application process. To begin with, Defendants generally do not screen for NSA until after applicants have stood in at least two long lines, passed through a security Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 17 of 32 Page ID #:237 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 checkpoint, and waited for hours in in a crowded and noisy DPSS lobby to be called by an eligibility worker.3 See FAA \u00b6\u00b6 32-37. For example, although Plaintiff Timothy Laraway repeatedly identified himself as mentally disabled to DPSS employees, Defendants forced him to wait three-and-one-half hours in the lobby before screening him for NSA. Laraway Decl. \u00b6\u00b6 12-20. Having an NSA process thus does nothing to assist those persons whose mental disabilities render them unable to go to the office, wait in long lines, and suffer for hours in a crowded lobby. Nor does the NSA process assist applicants whose social or cognitive difficulties cause them to give up and leave the DPSS office without completing their application packet. Further, Defendants’ singular focus on employability prevents them from identifying significant numbers of mentally ill people who need special assistance. Ragins Decl. \u00b6 7; Ruffin Decl. \u00b6\u00b6 28-29. For example, Defendants have wrongly decided that Declarant Ivan Galvez is employable notwithstanding his mental disorders, and have failed to provide him any NSA assistance, which has prevented him from accessing GR benefits. See Galvez Decl. \u00b6\u00b6 10-20. Moreover, even if applicants are identified and designated as NSA, Defendants still require them to spend up to a whole day, or longer, in the DPSS office, waiting to be called for eligibility worker meetings, mental health screening, 3 While Defendants supposedly conduct lobby sweeps, FAA \u00b6 45, Defendants have stated that it is a false premise[] that ‘sweeps of the lobbies at each DPSS OFFICE’ . . . are intended to be ‘effective in identifying GR APPLICANTS with MENTAL DISABILITIES.’ H. Alvarez Exh. I (Defendants’ Responses to Plaintiff’s First Set of Interrogatories) at 16. To the extent that lobby sweeps occur, they are too short and superficial in most instances to assess whether a person has a mental disability. Ragins Decl. \u00b6 13. Further, Defendants’ lobby sweeps routinely fail to identify mentally disabled applicants, even when they exhibit obvious unusual behavior. See Lloyd Decl. \u00b6\u00b6 15-17. And lobby sweeps certainly cannot hope to identify persons with mental disorders who are too afraid to come into the DPSS lobby in the first place. Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 18 of 32 Page ID #:238 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 fingerprinting, and EBT card distribution. In theory, applicants designated NSA can request accommodations during the application process, but Defendants have not yet trained DPSS staff on providing appropriate accommodations, and NSA designees are often forced to endure the same lines, long waits, and chaotic conditions as other applicants. Ruffin Decl. \u00b6 7; see also Laraway Decl. \u00b6\u00b6 11-23 (despite designating Mr. Laraway as NSA, Defendants required Mr. Laraway to wait for seven hours in the DPSS lobby to complete his application). E. Defendants Refuse to Lower These Barriers by Accepting Off-Site Applications Many of the barriers described above could be eliminated or lowered if Defendants would simply allow mentally disabled individuals to apply for GR without having to experience the trauma and confusion of going to the DPSS office. With remote applications by mail, fax, email, online or through satellite community organization locations, GR applicants whose mental disorders make it impossible for them to endure the DPSS offices could calmly prepare their applications and supporting documents and send these materials to DPSS. Ragins Decl. \u00b6 43; Lloyd Decl. \u00b6 21. In addition, applicants who could not complete the GR application form due to their mental or cognitive disorders could get help from friends, relatives, and community advocates before sending the documents to DPSS. Ragins Decl. \u00b6 43; Lloyd Decl. \u00b6 21. After receiving the off-site application, Defendants could also follow up by telephone as necessary to complete additional screening and make appointments for fingerprinting and health evaluations that are tailored to the individual applicant’s needs and abilities. Despite the benefits of accepting off-site applications, Defendants continue to mandate in-person applications for GR. Clearly an off-site application process is feasible, however, because Defendants currently accept off-site and online Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 19 of 32 Page ID #:239 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 applications for all their major aid programs except GR, including CalFresh4 food assistance, CalWORKs5 cash aid, and Medi-Cal6 healthcare services. See FAA \u00b6 5. F. Defendants’ Mandatory In-Person GR Application Policy Has Diverted Plaintiffs’ Resources and Frustrated Their Mission An off-site GR application process would also greatly reduce the resources that Plaintiff Housing Works and other advocacy groups such as Plaintiff ILC must expend to help GR applicants. As set forth in the attached declarations, the mandatory in-person application policy requires Housing Works to send advocates to accompany GR applicants during the all-day, in-person application process. An off-site GR application process would allow Housing Works to conserve resources for its core mission. Plaintiff Housing Works is a nonprofit organization whose mission is to create accessible housing and service options that model, with respect and dignity, sustainable, environmentally sensitive, and affordable communities with people of limited resources. Declaration of Celina Alvarez \u00b6 2; Carson Decl. \u00b6 2; Ruffin 4 See DPSS Website, How to Apply (https:\/\/dpss.lacounty.gov\/dpss\/calfresh\/apply.cfm) (instructing CalFresh applicants that they may apply for benefits online, [a]t your Community and Faith-Based Organizations, [a]t convenient community CalFresh Outreach Sites, [b]y mail, or at a DPSS office). 5 DPSS Website, CalWorks HOW TO APPLY (http:\/\/dpss.lacounty.gov\/dpss\/calworks\/default.cfm) ( Needy families may apply for assistance online or by coming in to one of our local DPSS Office locations. However, the easiest and quickest way to apply for CalWORKs is online at https:\/\/www.dpssbenefits.lacounty.gov\/ybn\/SignInPage.html ) (accessed 3\/4\/2016). 6 See DPSS Website, Health Care, How to Apply (https:\/\/dpss.lacounty.gov\/dpss\/health\/) (explaining that Your Benefits Now! is a website for Los Angeles County Residents to apply for and to view their benefits online. Currently, Your Benefits Now! supports CalFresh, Medi-Cal, and CalWORKs applications ; alternatively, Medi-Cal Applications can be mailed to the Medi-Cal Mail-in Application Office, or applicants can go to the DPSS office). Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 20 of 32 Page ID #:240 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Decl. \u00b6 2. Housing Works’ primary goal is to secure permanent supportive housing for its chronically homeless clients, the majority of whom suffer from mental disabilities. C. Alvarez Decl. \u00b6\u00b6 3-4, 9; Carson Decl. \u00b6\u00b6 3-4; Ruffin Decl. \u00b6\u00b6 3-4. Once its clients are housed, Housing Works continues to promote their housing stability through on-site, holistic services such as mental health counseling, job placement, and assistance with applying for public benefits, such as GR and Supplemental Security Insurance. C. Alvarez Decl. \u00b6 5; Carson Decl. \u00b6 5; Ruffin Decl. \u00b6 5. Because of Defendants’ mandatory in-person GR application policy, Housing Works is forced to divert significant resources and employee time away from its core mission of placing its clients in permanent supportive housing. Because its mentally disabled clients generally cannot endure the long lines and waits at DPSS offices alone, Housing Works employees frequently must accompany clients and shepherd them through the all-day, in-person application process, providing advocacy and emotional support as needed. C. Alvarez Decl. \u00b6\u00b6 9-10; Carson Decl. \u00b6\u00b6 8-18; Ruffin Decl. \u00b6\u00b6 10-27. Although Housing Works case managers routinely ask Defendants to designate their clients as NSA, this designation does nothing to reduce the interminable waiting in crowded DPSS lobbies that mentally disabled clients must endure to apply for GR. C. Alvarez Decl. \u00b6 11. Nor have Defendants ever granted Housing Works’ requests to allow clients to apply without spending all day in the DPSS office. C. Alvarez Decl. \u00b6 17. If this Court were to prohibit Defendants from requiring mentally disabled individuals to submit their GR applications in person, Housing Works would prepare and submit its clients’ GR applications, and assist with telephonic follow- up interviews, from its offices in Hollywood. C. Alvarez Decl. \u00b6 16; Carson Decl. \u00b6 19; Ruffin Decl. \u00b6 33. Such a procedure would save Housing Works’ staff and clients from the enormous burden of traveling to, and spending an entire working day in, a DPSS office. C. Alvarez Decl. \u00b6 16; Carson Decl. \u00b6 19; Ruffin Decl. \u00b6 33. Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 21 of 32 Page ID #:241 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This solution would greatly reduce the stress on Housing Works’ clients, as well as the drain on Housing Works’ resources and staff time, which Housing Works could then rededicate to its core mission. C. Alvarez Decl. \u00b6\u00b6 14-15. Such an injunction would also reduce the resources that Plaintiff ILC must expend to obtain GR for its disabled clients. Declaration of Norma Vescovo \u00b6 16. III. LEGAL STANDARD In deciding whether to grant a preliminary injunction, the court must consider four factors: (1) whether the plaintiff has shown a likelihood of success on the merits; (2) whether the plaintiff has shown a likelihood of irreparable harm in the absence of preliminary relief; (3) whether the balance of equities tips in the plaintiff’s favor; and (4) whether preliminary relief is in the public interest. Vivid Entm’t, LLC v. Fielding, 774 F.3d 566, 577 (9th Cir. 2014). Courts analyze these factors on a sliding scale, such that a stronger showing of one element may offset a weaker showing of another. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). All four factors favor issuance of a preliminary injunction in this case. Although injunctions requiring some affirmative conduct are subject to a higher standard, Ninth Circuit precedent holds that mandatory preliminary injunctions should issue where the facts and law clearly favor the moving party, as they do here. Dahl v. HEM Pharma. Corp., 7 F.3d 1399, 1403 (9th Cir. 1993); see also Rouser v. White, 707 F. Supp. 2d 1055, 1061-73 (E.D. Cal. 2010) (granting a mandatory injunction ordering prison to implement actions that would allow inmate to practice Wiccan religion). Further, [a]n injunction benefiting nonparties is permissible if such breadth is necessary to give prevailing parties the relief to which they are entitled. Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004). Here, the requested injunction would benefit large numbers of mentally disabled persons by allowing them to apply for GR without going to a DPSS office. Such an injunction is Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 22 of 32 Page ID #:242 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 appropriate under Price because it is the only way to prevent Plaintiffs Housing Works and ILC from suffering irreparable harm from the diversion of their resources and staff time caused by Defendants’ unlawful policy. IV. ARGUMENT A. Plaintiffs Are Likely to Prevail on Their Claim that Defendants’ Mandatory In-Person GR Application Violates the Americans with Disabilities Act, the Rehabilitation Act, and California Government Code 11135 By forcing people with mental disabilities to apply for GR in person at a DPSS office, Defendants violate Title II of the ADA, Section 504 of the Rehabilitation Act, and California Government Code 11135. The ADA provides that: [N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. 12132. Section 504 of the Rehabilitation Act, 29 U.S.C. 794(a), and California Government Code 11135, similarly prohibit the denial of benefits to the disabled by entities receiving federal and state funds, respectively, and the violations of all three statutes are properly evaluated together.7 To establish that Defendants’ mandatory in-person GR application requirement violates the ADA, Plaintiffs must show that (1) Defendants are subject to the ADA.8 (2) the clients of Housing Works and ILC are qualified individual[s] 7 See Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1045 (9th Cir. 1999) ( There is no significant difference in analysis of the rights and obligations created by the ADA and the Rehabilitation Act. ); D.K. v. Solano Cty. Office of Educ., 667 F. Supp. 2d 1184, 1191 (E.D. Cal. 2009) ( [I]f Plaintiffs state a claim under the Rehabilitation Act, they have also stated a State law cause of action under Cal. Gov. Code 11135, provided there is an additional allegation of State financial assistance. ). 8 Defendants do not dispute this element, and further admit they receive federal and state funds. FAA \u00b6\u00b6 101, 113. Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 23 of 32 Page ID #:243 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 with a disability ; and (3) Defendants are denying these persons the opportunity to participate in or benefit from the GR program because of their disabilities. See Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). 1. The Clients of Housing Works and ILC Are Qualified Individuals with a Disability The ADA defines a qualified individual with a disability as an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of . . . barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. 42 U.S.C. 12131(2). The definition of disability includes [a]ny mental or psychological disorder, such as an intellectual disability . . . emotional or mental illness, and specific learning disabilities. 29 C.F.R. 1630.2. Many clients of Housing Works and ILC, as well as thousands of other GR applicants, are qualified individuals with disabilities. Housing Works, for instance, assists clients who have moderate to severe symptoms of social anxiety, post- traumatic stress, memory issues and other cognitive disabilities. Carson Decl. \u00b6 8; Ruffin Decl. \u00b6 10; C. Alvarez Decl. \u00b6 9. Indeed, Housing Works’ clients often are direct referrals from the Los Angeles County Department of Mental Health. Carson Decl. \u00b6 4; Ruffin Decl. \u00b6 4; C. Alvarez Decl. \u00b6 4. Many of these clients are qualified for GR because they are County residents, have less than $50 in assets, and have incomes of less than $221 per month. Carson Decl. \u00b6 7; Ruffin Decl. \u00b6 9. 2. Defendants’ Policy Denies Mentally Disabled Applicants Meaningful Access to General Relief Benefits The ADA prohibits Defendants from utilizing methods of administration that Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 24 of 32 Page ID #:244 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 substantially impair access to individuals with disabilities.9 In Alexander v. Choate, 469 U.S. 287, 295 (1985), the Supreme Court concluded that Congress intended to protect disabled persons from discrimination arising out of both discriminatory animus and thoughtlessness, indifference, and benign neglect. Thus, the Court held that ADA is violated when disabled persons were denied meaningful access to state-provided services. Id. at 302; see also Ferguson v. City of Phoenix, 157 F.3d 668, 679 (9th Cir. 1998). The Ninth Circuit addressed this standard of meaningful access in Crowder v. Kitigawa, 81 F.3d 1480 (9th Cir. 1996). There, plaintiffs were visually impaired users of guide dogs who challenged Hawaii’s 120-day quarantine for certain animals coming into Hawaii. Id. at 1482-83. The defendant argued that the quarantine did not violate the ADA because it was not a service or benefit of the state but instead a public-health measure. The Ninth Circuit squarely rejected that argument: [T]he state’s quarantine requirement denies visually-impaired persons the ability to make meaningful use of services the state provides. The plaintiffs rely upon their guide dogs to assist them in negotiating public streets and using transportation systems. Without their dogs to guide them, the plaintiffs are severely restricted in their ability to use state services. Id. at 1482. The court compared the quarantine to other types of barriers widely accepted to be discriminatory: 9 See 28 C.F.R. 35.130(b)(3) ( A public entity may not . . . utilize . . . methods of administration . . . [t]hat have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities. ). Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 25 of 32 Page ID #:245 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Few would argue that architectural barriers to disabled persons such as stairs, or communication barriers such as the preference for the spoken word, are intentionally discriminatory. Yet, stairs can deny the wheelchair-bound access to services provided on the second floor of a government building; and communicating only by the spoken word can deny deaf persons the ability to find out that it is the second floor where they must go to obtain the services they seek. These and other types of barriers to participation by the disabled in public life do not provide any benefits themselves. Neither stairs nor the spoken word is a service, program, or activity of a public entity, yet each can effectively deny disabled persons the benefits of state services, programs or activities. Id. at 1483-84 (alterations omitted). The court held that, like stairs or communication barriers, the animal quarantine functioned as a barrier preventing visually impaired people from meaningful access to state services. Id. at 1485. As in Crowder, the Defendants here have erected multiple, cumulative barriers that block GR applicants with mental disabilities from meaningful access to essential public benefits. See generally, Ragins Decl. \u00b6\u00b6 6-42. These qualified individuals with disabilities are thus burdened . . . in a manner different from and greater than . . . non-disabled residents, solely as a result of [their] disabling condition. McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004). See Rodde v. Bonta, 357 F.3d 988, 998 (9th Cir. 2004); Communities Actively Living Indep. & Free v. City of L.A., No. CV 09-0287 CBM RZX, 2011 WL 4595993, at *13 (C.D. Cal. Feb. 10, 2011) (finding that individuals with disabilities lacked meaningful access to the City’s emergency preparedness program due to, among other things, lack of provisions to evacuate, transport, or temporarily house individuals with disabilities during or immediately following an emergency or disaster ). Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 26 of 32 Page ID #:246 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Indeed, the consequences of the denial of meaningful access may be even worse in this case than in Crowder. While the plaintiffs in Crowder were barred from meaningful access to public streets and transportation, Defendants’ discriminatory policies prevent disabled GR applicants from meaningful access to subsistence benefits critical to their very survival. Cf. 81 F.3d at 1482. As explained above in section II.C, the GR application process effectively bars mentally disabled GR applicants from meaningful access to life-sustaining government benefits. In Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003), the Second Circuit confronted a comparable case involving public benefit applicants whose AIDS-related disabilities sharply limited . . . their ability ‘to travel, stand in line, attend scheduled appointments, complete paper work, and otherwise negotiate medical and social service bureaucracies.’ Id. at 278 (alterations and citation omitted). The Court of Appeals held that injunctive relief to remedy a violation of the ADA or Rehabilitation Act is appropriate if it provides the injured plaintiff with ‘meaningful access’ to the programs or services to which the plaintiff is facially entitled. Id. at 291. Accordingly, the court affirmed an injunction requiring New York City and State benefit administrators to adopt affirmative steps to provide meaningful access to such persons, including by provid[ing] ‘intensive case management’ and . . . maintain[ing] specified ratios of caseworkers and supervisors to cases at each field office. Id. at 271, 291. Similarly here, the Court should issue an injunction requiring Defendants to provide Housing Works’ and ILC’s clients with meaningful access to GR benefits. Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 27 of 32 Page ID #:247 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. Remote GR Applications Are a Reasonable Accommodation The ADA obligates Defendants to adopt reasonable modifications to provide meaningful access to disabled individuals.10 Having met the burden of producing evidence that Plaintiffs are qualified under Title II of the ADA, Plaintiffs must show the existence of a reasonable accommodation. Zukle, 166 F.3d at 1047. Once that showing is made, the burden shifts to Defendants to prove that the accommodation sought would require a fundamental or substantial modification of its programs and standards. Id. [M]ere speculation that a suggested accommodation is not feasible falls short of the … requirement. Wong v. Regents of Univ. of Cal., 192 F.3d 807, 818 (9th Cir. 1999) (alterations and quotation marks omitted). As explained above in section II.E, permitting mentally disabled individuals to apply for benefits from off-site is a reasonable accommodation that would provide a substantial improvement in the ability of mentally disabled individuals to access GR benefits. To date, however, Defendants have refused to adopt this basic change, despite the fact that they provide the very kind of out-of-office application process for obtaining a number of other public benefits, including CalFresh, CalWORKs, and Medi-Cal. Because Defendants cannot show that accepting off-site applications would fundamentally alter the nature of their GR program, refusing to adopt this simply modification clearly violates the ADA. See, e.g., PGA Tour, Inc. v. Martin, 532 U.S. 661, 690 (2001) (allowing a disabled golf tournament contestant to use a golf cart would not fundamentally alter the nature of the tournaments); Lentini v. Cal. 10 28 C.F.R. 35.130(b)(7) ( A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity. ). Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 28 of 32 Page ID #:248 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ctr. for the Arts, Escondido, 370 F.3d 837, 845-46 (9th Cir. 2004) (requiring a concert hall to admit a service animal that had previously barked during a concert was not a fundamental alteration to the service provided by the hall). For the foregoing reasons, Plaintiffs have demonstrated that Defendants’ mandatory in-person GR application policy is illegal under the ADA, the Rehabilitation Act, and California law because the policy bars mentally disabled persons from meaningful access to County-provided benefits. Plaintiffs are therefore likely to succeed on the merits of their claims. B. Plaintiffs and Their Clients Face Irreparable Harm, and the Balance of Hardships Tips Sharply in Their Favor Unless enjoined by this Court, Defendants will continue to enforce their mandatory in-person GR application policy, causing irreparable harm to persons with mental disabilities, including Plaintiffs’ clients. It is beyond dispute that irreparable harm results when Defendants prevent mentally disabled persons from accessing GR benefits. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 264 (1970) (holding that denial of welfare may deprive an eligible recipient of the very means by which to live ; where a recipient lacks independent resources, his situation becomes immediately desperate. ); Beno v. Shalala, 30 F.3d 1057, 1063-64 n.10 (9th Cir. 1994) ( Numerous cases have held that reductions in AFDC benefits, even reductions of a relatively small magnitude, impose irreparable harm on recipient families. ). To be eligible for GR, a resident must have no income, no savings or resources, and no financial support from family or friends. Robbins v. Super. Ct., 38 Cal. 3d 199, 207 (1985). Thus, the California Supreme Court held that the plaintiffs in Robbins would suffer great and immediate harm from the denial of the requested preliminary injunction since they would inevitably suffer substantial hardship if forced to live without GR benefits until the lawsuit was resolved on the merits. Id. As one Housing Works case manager explains: the slightest mistake Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 29 of 32 Page ID #:249 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 which results in losing their GR benefits means that they will be unable to pay their rent or buy their next meal . . . GR income is the only money they have. Carson Decl. \u00b6 18. The attached declarations of Ivan Galvez and Charles Jarrett provide concrete examples of the urgent irreparable harm that occurs each and every day that Defendants prevent mentally disabled applicants from obtaining life-saving GR payments. Because Defendants’ discriminatory policies denied them meaningful access to GR, Ivan has been forced to live with abusive relatives in a one-room shack without running water, and Charles has been forced to live under a bridge. See Galvez Decl. \u00b6\u00b6 6-8; Jarrett Decl. \u00b6\u00b6 10, 21. Moreover, as explained in Section II.F, Defendants’ illegal policy also forces Plaintiffs Housing Works and ILC to divert their scant resources to addressing the immediate harm to their mentally disabled clients seeking GR. This case is much the same as Woods v. Alexandria Hous. Partners, L.P., No. CV-07-08262 MMM (JWJx), 2008 U.S. Dist. LEXIS 120289, at *86, *88 (C.D. Cal. May 22, 2008), where the court held that an advocacy organization face[d] the possibility of irreparable harm if the defendant harmed its clients, because [the organization] will be forced to assist them with numerous housing and social service needs, and further its other . . . clients will be harmed as well, because [the organization]’s limited resources will be diverted . . . if an injunction does not issue. See also Caron Found. of Fla., Inc. v. City of Delray Beach, 879 F. Supp. 2d 1353, 1373 (S.D. Fla. 2012) (court grants mandatory preliminary injunction in part because [f]rustration of a rehabilitation provider’s mission can cause irreparable harm. ); Stewart B. McKinney Found., Inc. v. Town Plan & Zoning Comm’n, 790 F. Supp. 1197, 1208-09 (D. Conn. 1992) (plaintiff nonprofit foundation would suffer irreparable harm if a preliminary injunction did not issue since [m]onetary damages would not adequately compensate the plaintiff for its inability to achieve its purpose of providing housing . . . to needy HIV-infected persons ). Quite Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 30 of 32 Page ID #:250 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 recently, the court in Step by Step, Inc. v. City of Ogdensburg, No. 7:15-CV-925, 2016 WL 1319081, at *15-16 (N.D.N.Y. Apr. 5, 2016), issued a preliminary injunction as it found that the city’s actions had deprived the plaintiff not-for-profit corporation of its ability to pursue its mission and to provide housing and services to its mentally ill clients and this denial constitutes irreparable harm. Here, too, monetary damages will not adequately compensate Housing Works and ILC if the Court does not grant the requested preliminary injunction. In contrast to the irreparable harm faced by Plaintiffs and their disabled clients, Defendants face only a minimal burden if prohibited from enforcing their mandatory in-person GR application policy during the pendency of this lawsuit. Notably, Defendants do not insist on in-person applications for the other three major benefit programs that they administer, i.e., CalFresh, CalWORKs, and Medi- Cal. On the contrary, Defendants accept applications for all these programs through the mail, by fax, online, and through community organizations and partners. Thus, requiring Defendants to accept off-site applications for one additional benefit program is unlikely to cause a significant burden. C. The Public Interest Favors Enforcement of the ADA and the Other Anti-Discrimination Laws The last factor for this Court to consider is whether preliminary relief is in the public interest. In enacting the ADA, Congress demonstrated its view that the public has an interest in ensuring the eradication of discrimination on the basis of disabilities . . . . This public interest is served by requiring entities to take steps to ‘assure equality of opportunity’ for people with disabilities. Enyart v. Nat’l Conference of Bar Exam’rs, Inc., 630 F.3d 1153, 1167 (9th Cir. 2011) (citations omitted). In Enyart, the Ninth Circuit held that the issuance of the preliminary injunctions allowing a legally blind law school graduate to take the bar exam using assisting software served the public’s interest in enforcement of the ADA and in elimination of discrimination on the basis of disability. Id. Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 31 of 32 Page ID #:251 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 So, too, a preliminary injunction allowing destitute County residents with mental disabilities to apply for GR without having to go to the DPSS offices serves the public interest in enforcement of the ADA, the Rehabilitation Act and California Government Code 11135. The public has an interest in eliminating discrimination on the basis of disability and in providing the County’s most vulnerable residents with the GR benefits to which they are entitled. V. CONCLUSION For the foregoing reasons, this Court should issue a preliminary injunction providing that, during the pendency of this litigation, Defendants shall be prohibited from requiring mentally disabled individuals to submit their GR applications in-person at DPSS offices. Dated: June 9, 2016 Respectfully submitted, LEGAL AID FOUNDATION OF LOS ANGELES By: \/s\/ Matthew G. Clark Matthew G. Clark WESTERN CENTER ON LAW AND POVERTY By: \/s\/ Robert D. Newman Robert D. Newman MORRISON & FOERSTER LLP By: \/s\/ Charles S. Barquist Charles S. Barquist PUBLIC COUNSEL By: \/s\/ Anne Richardson Anne Richardson DISABILITY RIGHTS LEGAL CENTER By: \/s\/ Anna Rivera Anna Rivera Case 2:15-cv-08982-GW-RAO Document 40-1 Filed 06\/09\/16 Page 32 of 32 Page ID #:252 ”

pdf Housing Works v. LA County Notice of Motion and Motion for Preliminary Injunction

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Housing Works. V. LA County Notice of Motion and Motion for Preliminary Injunction.pdf

pdf Hunger Action v LA County, CalFresh-SNAP Case Expedited Service Lawsuit

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Hunger Action v. LA County, CalFresh:SNAP Case.pdf

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pdf Jane H. v. Kent Petition for a Writ of Mandate 8-8-17 – Medi-Cal medical exemption request denial bad notice case

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” 1 PETITION FOR ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WESTERN CENTER ON LAW & POVERTY Mona Tawatao (SBN 128779) [email protected] Sue Himmelrich (SBN 110667) [email protected] Corilee Racela (SBN 268867) [email protected] Robert D. Newman (SBN 86534) [email protected] 3701 Wilshire Blvd., Suite 208 Los Angeles, CA 90010 Telephone: (213) 487-7211 Facsimile: (213) 487-0242 NEIGHBORHOOD LEGAL SERVICES OF LOS ANGELES COUNTY Ella Hushagen (SBN 297990) [email protected] Andrea Ringer (SBN 307315) [email protected] David Pallack (SBN 90083) [email protected] 13327 Van Nuys Blvd. Pacoima, CA 91331 Telephone: (818) 834-7554 Facsimile: (818) 896-6647 Attorneys for Petitioners SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES JANE H. and MARY A., Petitioners, v. JENNIFER KENT, in her capacity as Director, California Department of Health Care Services, CALIFORNIA DEPARTMENT OF HEALTH CARE SERVICES. Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. PETITION FOR ADMINISTRATIVE MANDAMUS (CODE CIV. PROC. 1094.5 and 1085) AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2 PETITION FOR ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCTION 1. Medi-Cal beneficiaries are entitled to receive medically necessary services pursuant to state and federal law. In administering the Medi-Cal program, the Department of Health Care Services (DHCS) must follow the law and ensure due process for beneficiaries. This case concerns DHCS’ adjudication of medical exemption requests, where beneficiaries with rare or complex conditions request to remain with their treating doctors to avoid the harm that would result from transitioning to a Medi-Cal managed care health plan. In the appeal process for medical exemption requests, DHCS and its Director, Jennifer Kent (Respondents), routinely alternate decisions by administrative law judges which have upheld beneficiaries’ medical exemption requests. The alternating of these administrative decisions violate controlling law and circumvent due process. 2. Petitioner Mary A. has life-threatening scleroderma and lung disease. Her condition has no cure and is worsening. Petitioner Jane H. was struck with relapsing-remitting multiple sclerosis in 2014 and has severe depression and anxiety made worse by her diagnosis. Both petitioners are low-income and rely on Medi-Cal coverage to receive the treatment they need from doctors who specialize in treating their rare, complex medical conditions. Petitioners accordingly filed medical exemption requests to remain under the care of those doctors. Respondents denied their medical exemption requests. Petitioners appealed the denials and prevailed in their respective administrative hearings before administrative law judges. But, respondents improperly reversed or alternated these favorable hearing decisions. 3. Respondents’ actions violate state laws and regulations governing the transfer of Medi-Cal beneficiaries with complex medical conditions into managed care plans as well as Petitioners’ due process rights. By ripping petitioners away from the care of their doctors and forcing them into managed care plans, respondents place petitioners’ already precarious health at serious risk, and in Mary A.’s case, at risk of death. On information and belief, respondents have a policy and practice of alternating favorable hearing decisions issued by administrative law judges adjudicating medical exemption requests, putting beneficiaries with severe, 3 PETITION FOR ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 complex medical conditions at risk. Petitioner Mary A. and Jane H. bring this action to end the Department’s unlawful practice and policy of wrongfully depriving patients of the life- sustaining care from their regular doctors. Petitioner Jane H. also seeks to prevent respondents from forcing her to enroll by October 1, 2017, into a managed care health plan that her doctor cannot participate in. 4. Petitioner Jane H. seeks an administrative writ under Code of Civil Procedure ( C.C.P. ) 1094.5 vacating her final hearing decision and granting her a 12-month MER because DHCS abused its discretion in alternating the hearing decision. 5. Petitioners Jane H. and Mary A. also seek a writ of mandate under C.C.P. 1085 ordering Respondents to comply with their ministerial duties to comply with state law and to provide due process in reversing or alternating medical exemption request hearing decisions favorable to Medi-Cal beneficiaries. PARTIES 6. Petitioner Jane H. resides in Los Angeles County. She is 51 years old. Her only income is Supplemental Security Income (SSI). As an SSI recipient, she automatically receives Medi-Cal. 42 U.S.C. 1396a(a)(10)(A)(i)(II); see also 22 C.C.R. 50145(a), 50227(a)(2). Jane H. has relapsing-remitting multiple sclerosis (MS), depression and anxiety. She has been receiving treatment from Dr. Revere Kinkel, a neurologist since 2014. Dr. Kinkel practices at University of California, San Diego Health (UCSD), where he directs the multiple sclerosis program. Jane H. sought a medical exemption from enrollment in a Medi-Cal managed care plan in order to remain in Dr. Kinkel’s care. 7. Petitioner Mary A. resides in Los Angeles County. She is 48 years old and a Medi-Cal beneficiary. She also receives SSI. Mary A. has scleroderma and interstitial lung disease. She receives treatment from Dr. Elizabeth Volkmann, a rheumatologist and scleroderma expert, at University of California, Los Angeles Medical Center (UCLA), and Dr. Paul Noble, a pulmonologist and expert in interstitial lung disease, at Cedars-Sinai Medical Center. 4 PETITION FOR ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. Respondent DHCS is the single state agency responsible for administering the Medi-Cal program in California and ensuring that the Medi-Cal program is operated in conformity with all state and federal laws. 9. Respondent Jennifer Kent is the current Director of DHCS and is sued in her official capacity. Director Kent is responsible for the lawful administration of the Medi-Cal program. JURISDICTION AND VENUE 10. Venue is proper in this Court because Petitioners Jane H. and Mary A. reside in Los Angeles County, where they have been injured by DHCS’ actions. C.C.P. 393(b). 11. Petitioners have a clear, present and beneficial right to respondents’ accurate review of their medical exemption requests and the lawful administration of their Medi-Cal benefits. 12. Petitioners have no plain, speedy, and adequate remedy at law. 13. Petitioners have exhausted all available administrative remedies, as alleged below, including at paragraphs 50 through 54 and 73 through 78. Under section 10962 of the Welfare and Institutions Code, Petitioner Jane H. is entitled to seek judicial review of her Medi-Cal fair hearing decision under section 1094.5 of the Code of Civil Procedure. All petitioners are entitled to seek judicial review of respondents’ actions and omissions in breach of their ministerial duties, as alleged in this petition, under section 1085 of the Code of Civil Procedure. 14. Because Medi-Cal is a fundamental vested right, this Court must exercise its independent judgment on the evidence. C.C.P. 1094.5(c). STATUTORY AND REGULATORY FRAMEWORK Overview of Medi-Cal Statutes and Regulations 15. Medicaid is a cooperative federal and state program designed to furnish health care to the poor. 42 U.S.C. 1396 et seq. California’s Medicaid program is known as Medi- Cal. Welf. & Inst. 14000 et seq. Respondent DHCS is the single state agency responsible 5 PETITION FOR ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 for ensuring Medi-Cal complies with all relevant laws and regulations. 42 U.S.C. 1396a(a)(5); Welf. & Inst. Code 14100.1. 16. DHCS must provide beneficiaries with medically necessary services covered by the Medi-Cal program. 42 C.F.R. 440.230(b). All Medi-Cal beneficiaries are entitled to receive certain mandatory services, including physician services, prescription drugs, and more. 42 U.S.C. 1396d(a); Welf. & Inst. Code 14131 et seq. 17. The federal Medicaid statute protects a beneficiary’s right to a fair hearing. 42 U.S.C. 1396a(a)(3). In addition, state law allows a beneficiary to appeal any action relating to her receipt of public social services. Welf. & Inst. Code 10950. 18. Medi-Cal benefits, like all public social services, must be provided promptly and humanely such that each beneficiary is able to access all of the aid to which he is entitled. Welf. & Inst. Code 10000, 10500. Enrollment in Medi-Cal Managed Care 19. The Medi-Cal program provides health care to beneficiaries either on a fee-for- service or a managed care basis. With fee-for-service Medi-Cal, the beneficiary seeks care from any provider who is participating in the Medi-Cal program, willing to treat the particular beneficiary, and willing to accept reimbursement at a set amount from DHCS for the medical services provided. See, e.g., Welf. & Inst. Code 14016.5. With managed care Medi-Cal, DHCS contracts with health plans to provide health care to Medi-Cal beneficiaries within a managed care system. The managed care plans receive a per capita reimbursement based on the number of Medi-Cal beneficiaries enrolled in that plan. See Welf. & Inst. Code 14087.3, 14089. That per capita rate, known as the capitation or capitated rate, is part of a comprehensive risk contract that sets a pre-determined amount DHCS pays the managed care plan per person per month, regardless of the number, extent, or cost of medical services the plan actually provided to the person. 42 C.F.R. 438.2. 20. Over time, DHCS has required mandatory enrollment in managed care plans for more and more categories of Medi-Cal beneficiaries. See, e.g., Welf. & Inst. Code 14087.3 6 PETITION FOR ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (allowing DHCS to enter into contracts for the provision of care to Medi-Cal beneficiaries); 14182 (requiring Seniors and Persons with Disabilities to enroll into managed care). Medical Exemption Requests (MERs) 21. DHCS allows for exemptions from mandatory enrollment in managed care for qualifying Medi-Cal beneficiaries in most counties. See California Code of Regulations, tit. 22 (22 C.C.R.) 53887 (managed care exemptions available within two-plan and Regional plan counties), 53923.5 (managed care exemptions available within Geographic Managed Care (GMC) counties). 22. In Two-Plan counties, DHCS has established contracts with two plans\u2014a county-organized local initiative plan and a commercial health insurance plan\u2014to provide Medi-Cal benefits to managed care enrollees in the county. See 22 C.C.R. 53800(b). The two-plan counties are: Alameda, Contra Costa, Fresno, Kern, Kings, Los Angeles, Madera, Riverside, San Bernardino, San Francisco, San Joaquin, Santa Clara, Stanislaus and Tulare. See DHCS Medi-Cal Managed Care Fact Sheet, available at http:\/\/www.dhcs.ca.gov\/provgovpart\/Documents\/MMCDModelFactSheet.pdf (last visited August 1, 2017). Title 22 section 53887 of the California Code of Regulations governs the process for obtaining a temporary medical exemption to managed care enrollment in Two-Plan counties. See 22 C.C.R. 53887. 23. In Regional Plan counties, DHCS has contracted with two commercial health insurance plans to provide Medi-Cal benefits to managed care enrollees in the county. The Regional plan counties are: Alpine, Amador, Butte, Colusa, El Dorado, Glenn, Inyo, Mariposa, Mono, Nevada, Placer, Plumas, Sierra, Sutter, Tehama, Tuolumne, and Yuba. DHCS Medi-Cal Managed Care Fact Sheet, supra. Title 22 section 53887 of the California Code of Regulations also governs the process for obtaining a temporary medical exemption to managed care enrollment in Regional plan counties. See Dep’t of Health Care Services All Plan Letter 17-007 at 2 n.1. 24. This petition and complaint focuses on the medical exemption request process 7 PETITION FOR ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in Two-Plan and Regional Plan counties, and all other counties in which the MER process is governed by 22 C.C.R. 53887. MERs Under 22 C.C.R. 53887 25. To obtain an exemption from Medi-Cal managed care, a beneficiary’s treating physician must submit to DHCS a request for the beneficiary to retain fee-for-service Medi- Cal. 22 C.C.R 53887(a). 26. A Medi-Cal beneficiary does not qualify for a MER if her treating physician contracts with any Medi-Cal managed care plan in the beneficiary’s county of residence or if the beneficiary is a member of such a plan for more than 90 days. Id. 53887(a)(2)(B). 27. If these disqualifying factors do not exist, DHCS must evaluate the beneficiary’s medical conditions. Id. 53887(a)(2). DHCS must evaluate the beneficiary for exemption from managed care enrollment if the beneficiary has a complex medical condition for which she is undergoing treatment. See id. 53887. A complex medical condition includes a complex and\/or progressive disorder . . . that requires ongoing medical supervision and\/or has been approved for or is receiving complex medical treatment for the disorder, the administration of which cannot be interrupted. Id. 53887(a)(2)(A)(7). This also includes complex neurological disorder[s], such as multiple sclerosis. Id. DHCS shall approve each request that meets the requirements of [section 53887]. Id. 53887(c) (emphasis added). 28. A MER is granted for up to 12 months at a time and allows a beneficiary to remain in fee-for-service Medi-Cal until her medical condition has stabilized such that she could change physicians and begin receiving care from a plan provider without deleterious medical effects. Id. 53887(a)(3). That determination of stability must be made by the beneficiary’s treating physician in the Medi-Cal fee-for-service program. Id. DHCS defines the risk of suffering deleterious medical effects if care is transferred as increasing illness, disability or pain and\/or prolong necessary treatment. See HCO Form 7101, Instructions for Completing Box 15. 29. DHCS must ensure that the medical exemption criteria set forth in 53887 are 8 PETITION FOR ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 applied to seniors and persons with disabilities whom DHCS otherwise seeks to transfer into a managed care plan. Welf. & Inst. Code 14182. Notice and Hearing Requirements 30. Under the California Constitution, a person may not be deprived of life, liberty, or property without due process of law. Cal. Const. art. I, 7, 15. The federal Medicaid statute protects a beneficiary’s right to a fair hearing. 42 U.S.C. 1396a(a)(3). Medi-Cal fair hearings must meet the due process standards set forth in Goldberg v. Kelly, 397 U.S. 254 (1970). 42 C.F.R. 431.205(d). In addition, state law allows a beneficiary to appeal any action relating to his receipt of public social services. Welf. & Inst. 10950; 22 C.C.R. 50951. 31. Beneficiaries are entitled to notice and a fair hearing when DHCS denies their MERs. 42 C.F.R. 438.56(f); 22 C.C.R. 53889(d). The notice of action to beneficiaries must state, at a minimum the action to be taken, the reasons for the action, the regulations supporting the action, and an explanation of the circumstances under which aid is continued if a hearing is requested. 42 C.F.R. 431.210; 22 C.C.R. 50179, 51014.1(c). 32. DHCS has delegated the administration of Medi-Cal fair hearings to the Department of Social Services. Welf & Inst. Code 10966, 10950(f); 22 C.C.R. 50953(c). Decisions rendered by the administrative law judges (ALJs) must be treated, for all purposes, as the decision of the [DHCS] director. Welf & Inst. Code 10966(b). Evidence in the Administrative Hearing 33. When defending a MER denial, DHCS has the burden of going forward in the hearing to support its determination of why the MER should be denied. Department of Social Services Manual of Policies and Procedures (MPP) 22-073.36. 34. The administrative hearing decision must be based exclusively on the evidence and other material introduced at the hearing . . . and shall specify the reasons for the decisions and identify the supporting evidence and regulations. MPP 22-061.5. If the evidence necessary to determine the case is not available at the hearing, the ALJ can continue the http:\/\/www.westlaw.com\/Link\/Document\/FullText?findType=Y&serNum=1970134198&pubNum=0000780&originatingDoc=N6D9D7CC0E21F11E6B41DDB4EF22BB850&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Category) http:\/\/www.westlaw.com\/Link\/Document\/FullText?findType=Y&serNum=1970134198&pubNum=0000780&originatingDoc=N6D9D7CC0E21F11E6B41DDB4EF22BB850&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Category) 9 PETITION FOR ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 hearing or hold the record open. Id. 22-053.21. The ALJ can also reopen a closed hearing record for additional information if all parties are notified of the reason for the reopening. Id. 22-059.12. ALJs must make satisfactory evidentiary findings and assess the probative value of admitted evidence. Id. 22-050.3. The beneficiary’s rights during the hearing include the right to conduct direct and cross-examination of parties and witnesses, examine all documents prior to and during the hearing, and rebut the evidence. Id. 22-049.7. DHCS Director Action on Administrative Hearing Decisions 35. Once the ALJ has concluded the fair hearing and issued a proposed decision, DHCS has 30 days to adopt the decision in its entirety; decide the matter himself or herself, or alternate the ALJ decision; or order a further hearing to be conducted by himself or herself, or another ALJ on behalf of the director. Welf. & Inst. Code 10959. If the DHCS director decides the matter for herself on the record, the DHCS director must state the reason for her decision and specify the evidence supporting her decision. Rogers v. Carleson, 30 Cal. App.3d 54, 57 (1973); see also 42 C.F.R. 431.244 (same requirements). The director’s alternate decision must be made on the record, including the transcript, with or without taking additional evidence. Welf. & Inst. Code 10959. The alternate decision must also include a statement of the facts, the statutes and regulations involved, and the reasoning which supports the decision. MPP 22-062.31 The director is required to review the administrative record, including the transcript, of the hearing in alternating a hearing decision or otherwise deciding the matter herself. Welf. & Inst. Code 10959. 36. The director may not alternate the factual findings of the hearing decision without providing the beneficiary the opportunity for a new hearing. See Ventimiglia v. Bd. of Behavioral Science, 168 Cal. App. 4th 296, 303-314 (2008) (appellant is entitled to opportunity to be heard when agency rendered final administrative decision based on new facts and evidence). 10 PETITION FOR ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATEMENT OF FACTS Petitioner Jane H. 37. Petitioner Jane H. is a Medi-Cal beneficiary who is permanently disabled. She has rapidly progressing relapsing-remitting Multiple Sclerosis. Multiple sclerosis (MS) is a neurological condition for which there is no cure, characterized by inflammatory attack on nerve fibers and their protective layers, disrupting nervous system function. Patients with relapsing-remitting MS experience periods of stability punctuated by relapses, wherein they experience new or worse symptoms. 38. Jane H. first began experiencing symptoms of her disease in mid-February 2014. She began to experience vertigo, and lost her balance easily. She had to walk very slowly to avoid falling. At first, Jane H.’s vertigo was intermittent but it became continuous. Within one month, Jane H. began to experience pins and needles sensations in her feet, legs, hands, and ribcage. By mid-March 2014, Jane H. had recurrent low back pain. 39. Between March and June 2014, Jane H.’s health deteriorated rapidly. In early April 2014, Jane H. started falling down seemingly without cause. By June 2014, Jane H. became so weak that her mother had to buy a wheelchair for her use inside and outside the home. Jane H. could not get out of the wheelchair without assistance. She could not use a walker. She began to experience a painful tightness around her chest and ribs, making it difficult to breathe\u2014a disease symptom known as the MS hug. At Jane H.’s appointments to undergo MRI in early June, she was so weak she required assistance transferring from her wheelchair to the table. 40. On June 10, a neurologist with Magan Medical Clinic tentatively diagnosed Jane H. with Multiple Sclerosis. He was uncertain about the diagnosis and presented no treatment options, except to prescribe prednisone for her weakness. 41. Jane H. was approved for Medi-Cal in June 2014. At that time, the Magan Medical Center neurologist informed Jane H. that he does not accept Medi-Cal and could no longer see her. 11 PETITION FOR ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 42. Jane H. eventually found Dr. Kinkel at UCSD, a recognized specialist in MS treatment who accepts fee-for-service Medi-Cal. Dr. Kinkel has actively treated Jane H.’s MS since June 30, 2014. 43 Dr. Kinkel accepts San Diego County Medi-Cal managed care plans, but not Los Angeles County plans. Dr. Kinkel can only see Jane H. if she has fee-for-service Medi- Cal. He cannot enter a continuity of care arrangement with a Los Angeles County Medi-Cal health plan. 44. In addition to relapsing-remitting MS, Jane H. has depression and anxiety. Jane H. became more depressed and anxious as her health deteriorated in early 2014. She was quite distressed by her decline in function, cried often, and had difficulty getting out of bed. She lost motivation and interest in her usual activities, often remaining in bed all day. Jane H. thought about suicide. 45. Dr. Kinkel has had Jane H. on a transfusion treatment regimen of rituximab (commercially known as Rituxan) since November 2014 after she failed on a more conventional MS treatment, copaxone injections. 46. Dr. Kinkel prescribes rituximab, a cancer treatment drug, as an off-label use for his patients with relapsing-remitting MS. Community-based neurologists, including those who are members of Medi-Cal managed care plans, typically refer their complex MS cases to him for administration and management of rituximab. 47. Jane H.’s depression and anxiety have persisted with little improvement over the past three years. Dr. Kinkel must balance Jane H.’s psychiatric medications with her MS treatments. 48. Dr. Kinkel submitted a MER on behalf of Petitioner Jane H. on November 10, 2016, in which he stated based on his knowledge and treatment of Jane H.’s condition that her medical condition was too unstable for her to transfer into a managed care plan without severe negative health consequences. 12 PETITION FOR ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 49. DHCS denied petitioner’s MER in a notice dated November 28, 2016. The notice stated that medical forms from Jane H.’s doctor were reviewed, and her neurological disorder appeared medically stable. The notice stated that Jane H. could get follow-up care from a doctor who works with the Medi-Cal managed care plan. The notice did not contain the notes of the DHCS medical reviewers explaining the basis for denial. 50. Jane H. appealed the DHCS denial and had a telephonic hearing on January 25, 2017 in Case Number 20163520124. Jane H. was represented by an attorney who submitted a statement of position on her behalf. 51. At her hearing, Jane H. submitted medical records that she has relapsing- remitting MS. The medical records reflect that her MS progressed rapidly and caused significant disability before she began rituximab, and that she has persistent depression and anxiety. 52. Jane H. also submitted into the hearing record four letters from Dr. Kinkel about the complexity of Jane H.’s medical condition and why it was necessary for her to remain in his care. According to Dr. Kinkel, Jane H.’s mental health comorbidities make her case particularly complex. Aggressive surveillance and treatment is necessary to maintain her level of functioning and quality of life. Dr. Kinkel wrote that if Jane H.’s treatment is disrupted, her condition has a high probability of full, unmanageable relapse. Dr. Kinkel stated that Jane H. has numerous poor risk factors including age of onset, large disease burden as measured by brain lesions, early onset of brain atrophy, and significant physical and cognitive impairment following recovery from her first attack. 53. DHCS only presented a position statement at the hearing. No representative of DHCS appeared in person or telephonically. In its position statement, DHCS claimed that Jane H.’s provider failed to document high risk or complex medical condition that has not been stabilized and therefore, there would be no deleterious health effects to her if she were to begin receiving care from a plan provider. DHCS’s position statement contained no facts to support these assertions. DHCS did not attach to its position statement the notes of its medical 13 PETITION FOR ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 reviewers concerning their recommendation to deny Jane H.’s MER. It did not disclose the names and credentials of its medical reviewers. DHCS did not inform Jane H. about how to obtain the medical reviewers’ notes recommending denial of her MER. 54. On February 5, 2017, Administrative Law Judge Betty Buccat reversed DHCS’s denial and granted Jane H. a 12-month medical exemption. Judge Buccat concluded that the preponderance of the evidence established that Jane H.’s neurological disorder requires that she remain in Dr. Kinkel’s care because her condition is unstable, and placing her with a managed care plan provider would result in deleterious effects to her health and safety. Judge Buccat supported her conclusion with findings that Dr. Kinkel identified numerous risk factors including large disease burden as measured by brain lesions, early onset of brain atrophy and significant physical and cognitive impairment which occurred following her first MS attack. 55. Despite the ALJ’s thorough fact finding and conclusion, and without providing a basis for reversing, DHCS alternated the ALJ’s proposed decision and issued the Director’s Alternate Decision denying Jane H.’s MER on March 8, 2017. The Alternate Decision added one paragraph to the Facts section of the Proposed Decision finding that Jane H. is clinically stable\u2014without citation to any evidence in the administrative record. The Alternate Decision repeated the conclusory paragraph in the Conclusion. In all other respects, the Alternate Decision is identical to the proposed decision. 56. Petitioners allege on information and belief that the Alternate Decision is based on evidence outside of the record that respondents never provided to Jane H. 57. DHCS failed to include in its statement of position or Alternate Decision any analysis of the evidence proffered by Jane H. and relied on by Judge Buccat, such as her psychiatric conditions. DHCS did not address Dr. Kinkel’s concerns about the risks of deleterious health effects to Jane H. if her care is disrupted. 58. Petitioners allege, on information and belief, that respondents did not review the transcript of her hearing prior to alternating the hearing decision in her case. 14 PETITION FOR ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 59. On June 9, 2017, petitioner Jane H., through her counsel Neighborhood Legal Services of Los Angeles County, sent DHCS a letter requesting, among other things, reversal of the Director’s Alternate Decision and grant of a 12-month MER until June 30, 2018. 60. On June 20, 2017. DHCS denied Jane H.’s request to reverse the Director’s Alternate Decision and grant Jane H.’s MER. DHCS stated that Jane H. is scheduled to be enrolled into a health plan on October 1, 2017. 61. Petitioner files this writ to challenge Respondents’ final decision in her case, and its unlawful practice of improperly reversing MER state fair hearing decisions favorable to claimants. Petitioner Mary A. 62. Petitioner Mary A. has an autoimmune disease called systemic progressive scleroderma. She also has interstitial lung disease secondary to systemic scleroderma. 63. Systemic scleroderma is an extremely rare autoimmune condition for which there is no cure. It has an annual incidence of just 20 cases per one million adults. Systemic scleroderma affects multiple body systems causing problems of the skin, heart, lungs, blood vessels, brain, and gastrointestinal, musculoskeletal and endocrine systems. The most common fatal complications are progressive pulmonary fibrosis, pulmonary hypertension, severe gastrointestinal involvement, and heart disease. 64. Mary A., once an athlete and avid hiker, first experienced symptoms of her conditions in late 2013 when she had shortness of breath while training for a hiking trip. 65. Needing to support herself financially and for health insurance coverage, Mary A. continued to work as much as she was able for the next two years as her health deteriorated. Her insurance at that time came with a $6,000 annual deductible that she could not afford and as a result, Mary A. could not afford to seek care from July through November 2015. During that time, Mary A.’s circulation in her hands became very poor, her skin became very sensitive to contact, her shortness of breath grew worse, she developed a persistent dry cough, she had gastrointestinal reflux and discomfort, and she developed aches and pains throughout her body. 15 PETITION FOR ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 66. By January 2016, Mary A. realized that she was too sick to continue working. Mary A. lost her job-based health insurance. She applied for Medi-Cal in January 2016 and she was approved shortly thereafter. 67. Meanwhile, in November 2015, Mary A. sought care from Dr. Elizabeth Volkmann, rheumatologist and scleroderma expert at UCLA, and Dr. Paul Noble, pulmonologist and expert in pulmonary fibrosis at Cedars-Sinai. Drs. Volkmann and Noble have been treating Mary A.’s sclerosis and lung fibrosis since that time. They only accept fee- for-service Medi-Cal. Drs. Volkmann and Noble do not contract with either of the two Medi- Cal managed care plans in Los Angeles County. 68. Drs. Volkmann and Noble agreed in November 2015 that Mary A.’s disease progression warranted treatment with immunosuppressive agent mycophenolate, commercially known as CellCept. 69. Mary A. started on mycophenolate in November 2015 at 1000 milligrams (mg) per day. While monitoring Mary A.’s response, Dr. Volkmann gradually doubled her mycophenolate dose by September 2016. 70. Mary A. relies on Dr. Volkmann’s expertise to balance the benefits of mycophenolate with the health risks that treatment poses. Potential complications of mycophenolate include kidney failure, increased susceptibility to cancer and leukemia, and suppressed immune response. Because individuals taking mycophenolate are at a much greater risk of infection, Mary A. must take a prophylactic dose of Bactrim in order to prevent lung infections. 71. Dr. Noble must also manage the precarious interaction between the scleroderma and her other symptoms. Mary A. experiences joint and muscle pain on a daily basis\u2014a symptom of scleroderma related to poor circulation throughout the body. Because mycophenolate does not improve these painful sclerosis symptoms for Mary A., Dr. Noble prescribed Mary A. prednisone in November 2015. Prednisone reduces the inflammation and pain, but also carries a risk of kidney failure. As a result of taking prednisone Mary A. has 16 PETITION FOR ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 early onset osteoporosis, i.e., osteopenia. Drs. Volkmann and Noble gradually tapered Mary A.’s prednisone dose from 10 mg daily in November 2015 to 6 mg daily in September 2016. Unfortunately, as Mary A.’s dose is tapered, the aches and pains returns. 72. On July 20, 2016, Dr. Volkmann requested a MER for Mary A. DHCS denied the MER on July 27, 2016. 73. Mary A. appealed the denial and had a hearing on November 9, 2016 in Case Number 20162310409. Mary A. represented herself. 74. At her hearing, Mary A. submitted medical records showing that she has the complex diagnoses of systemic scleroderma and idiopathic lung disease, that her lungs’ ability to transfer oxygen to the blood stream, called DLCO score, has continually decreased since May 2014, and that she was being treated with mycophenolate. The records showed that Mary A.’s mycophenolate dose had been gradually increased to 2000 mg daily, and that her prednisone dose had been gradually decreased. Mary A.’s medical records reflected that Dr. Volkmann tests Mary A.’s medication-related toxicity at each visit. 75. Mary A. submitted a letter from Dr. Volkmann at the hearing. Dr. Volkmann wrote that: (a) Systemic sclerosis is a progressive, debilitating condition, for which there is no known cure. (b) Mary A.’s condition is complicated by her interstitial lung disease, which has progressed in severity despite treatment with immunosuppressive therapy. (c) Mary A.’s condition is not stable and her symptoms include difficulty breathing, digestive issues, and muscle and joint pain. (d) Mary A. cannot switch to another provider because if her condition is not treated aggressively and closely monitored by known experts in systemic sclerosis, she is likely to develop irreversible parenchymal lung damage leading to respiratory failure and death. 17 PETITION FOR ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 76. DHCS only presented a position statement at the hearing. No representative from DHCS appeared in person or telephonically. DHCS claimed that Mary A.’s provider failed to document any high risk or complex medical condition that has not been stabilized and therefore, there would be no deleterious health effects to her if she were to begin receiving care from a plan provider. The DHCS position statement contained no facts to support these assertions. DHCS did not attach to its position statement the notes of its medical reviewers concerning their recommendation to deny Mary A.’s MER. It did not disclose the names and credentials of its medical reviewers. 77. On November 29, 2016, twenty days after the hearing, DHCS submitted an Addendum to the administrative law judge recommending upholding the MER denial in response to the evidence Mary A. submitted at her hearing. DHCS did not give Mary A. notice or a copy of the Addendum. Therefore, Mary A. was unable to respond to the DHCS Addendum in any way. 78. After considering the evidence, Administrative Law Judge Lee Ormasa granted Mary A.’s claim for a 12-month MER, on January 25, 2017. Judge Ormasa found that Mary A.’s condition is not stable and is progressing as evidenced by her declining DLCO score despite immunosuppression therapy that had been gradually increased in 2016. Judge Ormasa found that Mary A. had developed an increased dry cough. Judge Ormasa concluded that the preponderance of the medical evidence established that: Mary A. has a qualifying complex medical condition that is not stable; she requires frequent and close medical supervision; her condition is worsening, progressive and without a known cure; and Mary A. is at serious risk of deadly harm to her health if required to treat with a managed care physician. Accordingly, Judge Ormasa determined that Mary A. qualifies for an exemption from mandatory enrollment in a Medi-Cal managed care health plan. 79. On March 2, 2017, DHCS alternated the proposed decision and issued the Director’s Alternate Decision. DHCS acknowledged that Mary A. has a complex condition covered by 53887(a)(2)(A), her condition will continue to worsen over time, and she will 18 PETITION FOR ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 need continued specialist care for the rest of her life. Yet DHCS found that Mary A.’s health was not precipitously worse as compared with her most recent prior visits, and found that her conditions are stable. DHCS did not dispute or disprove Dr. Volkmann’s statements about the risks of deleterious health effects to Mary A. if her care is disrupted. Without citation to any evidence in the hearing record, DHCS concluded that Mary A. does not qualify for a MER because (1) Medi-Cal managed care plans are contractually obligated to provide all medically necessary care, including complex specialty care, by way of out-of-network authorizations if necessary; and (2) Mary A. can make a continuity of care request with the health plan to extend her care with her current fee-for-service provider. 80. Petitioners allege, on information and belief, that respondents did not review the transcript of Mary A.’s hearing prior to alternating the hearing decision in her case. 81. Mary A. requested rehearing within 30 days of the decision. DHCS denied Mary A.’s request for rehearing on April 19, 2017. 82. In early 2017 Mary A.’s scleroderma symptoms worsened dramatically. In January 2017, Mary A. began to experience extreme shortness of breath. Drs. Volkmann and Noble became concerned that Mary A. was suffering from a lung infection, or that her lung disease has progressed to pulmonary hypertension. On February or March 2017, they increased her dose of prednisone to 20 mg daily. On April 28, Drs. Volkmann and Noble took Mary A. off of mycophenolate in order to assess for lung infection. By June 2017, Mary A.’s DLCO score had dropped to 46 percent down from 57 percent in November 2016. Mary A. fortunately began to recover pulmonary function in July 2017. However pulmonary hypertension has not been ruled out as a possible explanation for her recent rapid decline. Mary A.’s specialists are trying to determine whether to put her back on mycophenolate, or escalate her treatment to a new therapy. 83. On May 11, 2017, Mary A. through her counsel, Neighborhood Legal Services of Los Angeles County, sent DHCS a demand letter requesting that DHCS grant her medical exemption request through May 31, 2018. Counsel for Mary A. further demanded, among other 19 PETITION FOR ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 things, that DHCS articulate a written policy in collaboration with stakeholders on how to review and weigh medical evidence submitted for the evaluation of MERs. 84. On May 18, 2017, DHCS agreed to grant Mary A. a 12-month MER. DHCS did not respond to Mary A.’s other demands in her letter of May 11, 2017. Other Medi-Cal beneficiaries’ Alternated MER Hearing Decisions 85. Respondents alternated well over one hundred decisions between March 1, 2015 and the present concerning MERs, which represent an estimated 40 to 50 percent of proposed decisions granting MERs to appellants. Respondents disregard the evidentiary record and conclude, in summary fashion, that the beneficiary’s condition is stable and that the beneficiary will not be harmed by a forced transition to managed care. Respondents’ alternated decisions typically ignore all evidence and opinions of the beneficiary’s treating physician, in many cases multiple treating physicians, and all of the legal and factual findings of the ALJ. As with the alternated decisions regarding petitioners, many of the alternated decisions denying MERs are based on standards other than those in the governing regulations, 22 C.C.R. 53887. 86. Petitioners allege on information and belief that respondents do not review the hearing transcript prior to alternating MER hearing decisions. CAUSES OF ACTION First Cause of Action Writ of Mandate Code Civil Proc. 1094.5 Petitioner Jane H. Against All Respondents (Abuse of Discretion\u2014Findings Not Supported by the Evidence, Decision Not Supported by the Findings, Error of Law) 87. Petitioner Jane H. realleges and incorporates by reference each and every allegation contained in the above paragraphs as though fully set forth herein. 88. Petitioner submitted sufficient medical evidence such that an ALJ made a factual finding that Jane H.’s condition was unstable and as a result she was exempt from enrollment in a Medi-Cal managed care plan. 20 PETITION FOR ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 89. Respondents prejudicially abused their discretion in the findings made and evidence used in the final decision. C.C.P. 1094.5(b). Respondents made findings in the final decision without reviewing the complete evidence in the record. Respondents also made findings in the final decision that lack support in the evidence. 90. Respondents did not review the hearing transcript. DHCS ignored the medical evidence in the record submitted by Jane H.’s doctor. 91. Respondents failed to produce or cite to any evidence to support its finding that Jane H.’s health is stable. Respondents did not disclose the identities and credentials of those who reviewed Jane H.’s MER. Respondents’ final hearing decision improperly relied on DHCS’ conclusory and unsubstantiated statements about petitioner Jane H.’s medical conditions and the availability of continued treatment in a plan. 92. Respondents further abused their discretion in petitioner Jane H.’s case because the final decision is not supported by the findings. Respondents merely repeated\u2014nearly verbatim\u2014in the Conclusion of the Final Decision the same conclusory statements it added to the fact section. In violation of Jane H.’s due process rights, DHCS made findings based on a selective review of the evidence in the record, failed to produce evidence for Jane H. to challenge, and concluded its MER denial was proper in cursory fashion. The final decision rests on unlawful findings. 93. Respondents applied a secret standard to deny Jane H.’s medical exemption in its final decision. Under the regulations, a beneficiary’s treating physician determines whether the beneficiary’s medical condition has stabilized to a level that would enable the individual to change physicians and begin receiving care from a plan provider without deleterious medical effects see 22 C.C.R. 53887(a)(3), meaning, according to DHCS’s own instructions, increased illness, disability, pain and\/or prolonged treatment. In Jane H.’s case, respondents instead applied a different standard\u2014that there would be no interruption in Jane H.’s rituximab treatment regimen because the managed care plan is obligated to provide Jane H. with what is medically necessary. 21 PETITION FOR ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 94. Petitioner Jane H. has no plain, speedy, and adequate remedy to obtain DHCS’ compliance with the law other than relief sought by this Petition. Under Code of Civil Procedure section 1094.5, Jane H. is entitled to a writ of administrative mandamus reversing the final hearing decision and granting her a 12-month medical exemption request. Second Cause of Action Writ of Mandate. Code Civil Proc. 1085 Petitioners Jane H. and Mary A. Against All Respondents (Violation of Welf. & Inst. Code 10959) 95. Petitioners reallege and incorporate by reference each and every allegation contained in the above paragraphs as though fully set forth herein. 96. Respondents alternated the medical exemption request hearing decisions of Petitioners and other Medi-Cal beneficiaries without reviewing the transcript, stating the reason for alternating the proposed decisions, or providing the evidence supporting the alternated decisions. 97. Respondents’ actions and omissions violated Welfare & Institutions Code Sec. 10959. 98. Petitioners are beneficially interested in respondents’ faithful execution of its duty to comply with Welfare & Institutions Code Sec. 10959. They have no plain, speedy, and adequate remedy to obtain respondents’ compliance with the law other than the relief sought by this Petition. Unless and until enjoined by this court, respondents’ unlawful conduct will cause great and irreparable injury. Third Cause of Action Writ of Mandate Code Civil Proc. 1085 Petitioners Jane H. and Mary A. Against All Respondents (Violation of Due Process, Cal. Const. art. I, 7, 15) 99. Petitioners reallege and incorporate by reference each and every allegation contained in the above paragraphs as though fully set forth herein. 22 PETITION FOR ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 100. Respondents alternated the medical exemption request hearing decisions of petitioners and other Medi-Cal beneficiaries without reviewing the transcript, stating the reason for or providing the evidence supporting the alternated decisions. 101. Respondents alternated the factual findings of the administrative law judges in alternating the medical exemption request hearing decisions of petitioners and other Medi-Cal beneficiaries. 102. Respondents’ actions and omissions in alternating MER hearing decisions favorable to petitioners and other Medi-Cal beneficiaries violated due process. 103. Petitioners are beneficially interested in respondents’ faithful execution of its duty to provide due process. They have no plain, speedy, and adequate remedy to obtain Respondents’ compliance with the law other than the relief sought by this Petition. Unless and until enjoined by this court, respondents’ unlawful conduct will cause great and irreparable injury. Fourth Cause of Action Writ of Mandate Cal. Code Civil Proc. 1085 Petitioners Jane H. and Mary A. Against All Respondents (Violation of Welf & Inst. Code 14182 and 22 C.C.R. 53887) 104. Petitioners reallege and incorporate by reference each and every allegation contained in the above paragraphs as though fully set forth herein. 105. Welf. & Inst. Code 14182 and 22 C.C.R. 53887 govern medical exemption request determinations. 106. In alternating the MER hearing decisions favorable to petitioners and other Medi- Cal beneficiaries, respondents did not follow the standards codified in Welf. & Inst. Code 14182 and 22 C.C.R. 53887, including the standard that requires allowing the beneficiary to remain with the fee-for-service provider for up to 12 months, until the medical condition has stabilized to a level that would enable the individual to change physicians and begin 23 PETITION FOR ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 receiving care from a plan provider without deleterious medical effects, as determined by a beneficiary’s treating physician in the Medi-Cal fee-for-service program. 107. Petitioners are beneficially interested in respondents’ faithful execution of its duty to apply the proper criteria set forth in 22 C.C.R. 53887 in reviewing and making decisions regarding MER hearing decisions. They have no plain, speedy, and adequate remedy to obtain respondents’ compliance with the law other than the relief sought by this Petition. Unless and until enjoined by this court, respondents’ unlawful conduct will cause great and irreparable injury. Fifth Cause of Action Writ of Mandate Cal. Code Civil Proc. 1085 Petitioners Jane H. and Mary A. Against All Respondents (Violation of Administrative Procedure Act, Gov’t Code 11340.5) 108. Petitioners reallege and incorporate by reference each and every allegation contained in the above paragraphs as though fully set forth herein. 109. The Administrative Procedures Act provides that a state agency shall not issue, utilize, enforce, or attempt to enforce any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule. . .unless the guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule has been adopted as a regulation and filed with the Secretary of State . . . . Gov’t. Code 11340.5. 110. Respondents have drafted amendments to and represented that they intend to amend 22 C.C.R. 53887. The proposed amendments include inter alia changes to how complex medical conditions are defined, and elimination of the role a beneficiary’s treating physician in determining whether a beneficiary’s transfer to a managed care plan from fee-for- service Medi-Cal would have a deleterious medical effect. 111. Respondents have never amended 22 C.C.R. 53887, nor issued any letters, bulletins or instructions regarding the draft amendments to 53887. Yet, they have alternated 24 PETITION FOR ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the MER hearing decisions of petitioners and others in accordance with the draft amended regulation. Respondents’ actions violate the Administrative Procedure Act. 112. Petitioners are beneficially interested in respondents’ faithful execution of its duty to comply with the Administrative Procedure Act in reviewing and making decisions regarding MER hearing decisions. Petitioners have no plain, speedy, and adequate remedy to obtain respondents’ compliance with the law other than the relief sought by this Petition. Unless and until enjoined by this court, respondents’ unlawful conduct will cause great and irreparable injury. Sixth Cause of Action Writ of Mandate Code Civil Proc. 1085 Petitioners Jane H. and Mary A. Against All Respondents (Failure to Humanely Administer Benefits to Which Applicants Are Entitled Welf. & Inst. Code 10000, 10500) 113. Petitioners reallege and incorporate by reference each and every allegation contained in the above paragraphs as though fully set forth herein. 114. In alternating the MER hearing decisions of petitioners and other Medi-Cal beneficiaries, respondents have failed to administer the Medi-Cal program promptly and humanely in a way that complies with the law. Welf. & Inst. Code 10000. DHCS’ administration of the Medi-Cal program has deprived petitioners the amount of aid to which [they are] entitled . . . . Id. 10500. 115. Petitioners are beneficially interested in respondents’ faithful execution of its duty to administer the Medi-Cal program promptly and humanely. They have no plain, speedy, and adequate remedy to obtain respondents’ compliance with the law other than the relief sought by this Petition. Unless and until enjoined by this court, respondents’ unlawful conduct will cause great and irreparable injury. 25 PETITION FOR ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Seventh Cause of Action Petitioners Jane H.and Mary A. against all Respondents Relief from Illegal Expenditure of Public Funds (Violation of C.C.P. 526(a)) 116. Petitioners reallege and incorporate by reference each and every allegation contained in the above paragraphs as though fully set forth herein. 117. Respondents have expended public funds in the promulgation and implementation of the unlawful policies and practice alleged in this petition and complaint. 118. Petitioners have paid a tax within and to the State of California within one year before commencement of this action. 119. Unless and until enjoined by this court, respondents’ unlawful conduct will cause great and irreparable injury to petitioners in that respondents will continue to make illegal expenditures. REQUEST FOR RELIEF WHEREFORE, petitioners request the following relief: 1. A stay under C.C.P. 1094.5(g) for petitioner Jane H. to maintain her existing eligibility for Medi-Cal fee-for-service during the pendency of her appeal of the final hearing decision. 2. An administrative writ vacating the Director’s Final Decision in petitioner Jane H.’s case and an order compelling DHCS and DHCS’ current director, Jennifer Kent, to grant Jane H. a twelve-month exemption from managed care enrollment, or in the alternative, an order remanding Jane H.’s case for a new hearing conducted in accordance with applicable law and due process rights. 3. A peremptory writ of mandate prohibiting respondents from: (a) Alternating medical exemption request hearing decisions without presenting evidence to support the alternated decision, reviewing the transcript of the hearing, stating the reason(s) for alternating the decision; 26 PETITION FOR ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and; (b) Alternating medical exemption request hearing decisions based on facts not in the record. (c) Alternating medical exemption request hearing decisions based on criteria other than those set forth in 22 C.C.R. 53887; and (d) Alternating medical exemption request hearing decisions based on proposed, but not adopted, amendments to 22 C.C.R. 53887. 4. Issue a temporary restraining order and preliminary and permanent injunction prohibiting respondents from: (a) Alternating medical exemption request hearing decisions without presenting evidence to support the alternated decision, reviewing the transcript of the hearing, stating the reason(s) for alternating the decision; (b) Alternating medical exemption request hearing decisions based on criteria other than that set forth in 22 C.C.R. 53887; (c) Alternating medical exemption request hearing decisions based on facts not in the record; and (d) Alternating medical exemption request hearing decisions based on proposed, but not adopted, amendments to 22 C.C.R. 53887. 5. Declare that the following actions by respondents violate state law and regulation: (a) Alternating medical exemption request hearing decisions without presenting evidence to support the alternated decision, reviewing the transcript of the hearing, stating the reason(s) for alternating the decision; (b) Alternating medical exemption request hearing decisions based on criteria other than that set forth in 22 C.C.R. 53887; (c) Alternating medical exemption request hearing decisions based on facts not in the record; and (d) Alternating medical exemption request hearing decisions based on asmith Typewritten Text 28 asmith Typewritten Text PETITION FOR ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR asmith Typewritten Text INJUNCTIVE RELIEF asmith Typewritten Text 29 asmith Typewritten Text PETITION FOR ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR asmith Typewritten Text INJUNCTIVE RELIEF Petition for Administrative Mandamus and Complaint for Declaratory and Injunctive Relief Introduction Parties Jurisdiction and Venue Statutory and Regulatory Framework Overview of Medi-Cal Statutes and Regulations Enrollment in Medi-Cal Managed Care Medical Exemption Requests (MERs) MERs Under 22 C.C.R. 53887 Notice and Hearing Requirements Evidence in the Administrative Hearing DHCS Director Action on Administrative Hearing Decisions Statement of Facts Petitioner Jane H. Petitioner Mary A. Other Medi-Cal beneficiaries’ Alternated MER Hearing Decisions Causes of Action First Cause of Action Second Cause of Action Third Cause of Action Fourth Cause of Action Fifth Cause of Action Sixth Cause of Action Seventh Cause of Action Request for Relief Verification of Jane H. Verification of Mary A. ”

pdf Jones v. Lighbourne – WtW case – Time Clock

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” 1 2 3 PATTI PRUNHUBER, (Bar No. 277439) STEPHEN RONFELDT (Bar No. 41044) JUDITH GOLD (Bar No. 97098) PUBLIC INTEREST LAW PROJECT 4 449 15th Street, Suite 301 Oakland, CA 94612 5 Telephone: (510) 891-9794 Facsimile: (510) 891-9721 6 [email protected] 7 [email protected] 8 CHRISTOPHER A. DOUGLAS (Bar No. 239556) LUAN HUYNH (Bar No. 243478) 9 EAST BAY COMMUNITY LAW CENTER 10 3130 Shattuck A venue Berkeley, California 94705 11 Telephone: (510) 269-6611 Facsimile: (510) 849-1536 12 [email protected] 13 [email protected] 14 Attorneys for Petitioners Loraine Jones, Kim Kruckel and Lifetime 15 16 17 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ALAMEDA 18 LORAINE JONES, KIM KRUCKEL and LIFETIME, ) ) Case No.: 19 20 21 22 23 24 25 26 27 28 Petitioners\/Plaintiffs, ~ vs. ~ ) WILL LIGHTBOURNE, Director of the ) California Department of Social Services, in ~ his official capacity; CALIFORNIA ) DEPARTMENT OF SOCIAL SERVICES, ) Respondents\/Defendants ~ VERIFIED PETITION FOR WRIT OF MANDAMUS AND FOR INJUNCTIVE AND DECLARATORY RELIEF [Code Civ. Proc. 1060, 1094.5, 1085] PETITION FOR WRIT OF MANDAMUS AND OTHER RELIEF PETITION FOR WRIT OF MANDAMUS AND OTHER RELIEF 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 By this verified petition, Petitioners allege as follows: I. INTRODUCTION 1. Petitioner1 Loraine Jones receives aid under the California Work Opportunity and Responsibility to Kids ( CalWORKs ) program. CalWORKs is designed to lift families with needy children out of poverty by, among other things, providing parents with the employment skills they need to achieve economic self-sufficiency within a time-limited period. This legislative purpose of economic self-sufficiency is to be achieved through two integrated provisions employment services to help move families out of poverty and modest, time-limited cash assistance. When the Legislature chose to limit the time period during which CalWORKs recipients could receive cash benefits and services, it mandated that Respondent, the California Department of Social Services (the Department or CDSS ), promptly make available to recipients, through county welfare departments, Welfare-to-Work activities and services (hereafter referred to as WTW ). Welf. & Inst. Code 11320.3 and 11325.21(a). This case challenges the Department’s failure to comply with its mandatory duty to require that counties provide timely WTW activities and services to CalWORKs recipients concurrently with cash aid. When the counties fail to do so, Petitioners seek, among other things, to compel Respondents to forebear from terminating cash aid until recipients have been offered their full months of WTW. 2. As just one example, for over three years, the Alameda County Social Services Agency (the County ) has persistently failed, and CDSS has consistently failed to require the County, to make WTW activities and services available to Petitioner Jones, despite its clear duty to do so. This failure on the part of CDSS occurred despite Ms. Jones’s multiple requests for job training and educational opportunities in order to become economically self-sufficient. As a result of the County’s delays and errors, Petitioner Jones will not have achieved self-sufficiency when her 48 months on aid soon expires. In her administrative hearing, Ms. Jones requested that CDSS not count the months during which the County failed to provide her with the required WTW plan or services toward her 48 months of aid. Though the Administrative Law Judge 1 Petitioner includes plaintiff; respondent includes defendant; and petition includes complaint. PETITION FOR WRIT OF MANDAMUS AND OTHER RELIEF 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 found that the County had failed to offer Ms. Jones the full period of WTW opportunities and services that the CalWORKs statutes require, the decision nonetheless denied her request. Petitioner Jones seeks to set aside the Department’s decision under California Code of Civil Procedure section 1094.5. 3. Under California Code of Civil Procedure section 1085, Petitioners Jones, Kruckel, and Lifetime (collectively, Petitioners ) seek, on behalf of themselves and similarly situated CalWORKs recipients, to compel CDSS to require county welfare departments to provide the full period of WTW services that the Legislature deemed necessary to attain economic self- sufficiency. In those cases where counties have failed to make WTW available in a timely manner, Petitioners seek a declaration that state welfare laws not only authorize but obligate Respondents not to terminate recipients’ cash aid and services until they receive the full period of WTW services to which they are entitled. Further, Petitioners seek injunctive relief, and\/or a writ of mandate, compelling CDSS to ensure that county welfare departments carry out their WTW responsibilities, and exclude from the 48 months of time-limited aid the time during which they failed to do so. II. JURISDICTION AND VENUE 4. This Court has jurisdiction over this matter under California Code of Civil Procedure sections 1085 and 1094.5.. 5. Venue in this court is proper under Code of Civil Procedure section 393 (b), as the cause of action arose in Alameda County. III. PARTIES 6. Petitioner LORAINE JONES is a 26 year old resident of Alameda County, California. 7. Petitioner KIM KRUCKEL is an adult resident of, and homeowner in, Alameda County who pays real property taxes. Ms. Kruckel is and was at all times relevant to this action a taxpayer interested in having the laws executed under C.C.P. section 526a and ensuring that Respondents do not impair or defeat a public right. She is also a concerned citizen who has an interest in ensuring, under C.C.P. section 1085, that Respondents comply with their legal duty to timely make available to CalWORKs recipients the WTW to which they are legally entitled. Ms. PETITION FOR WRIT OF MANDAMUS AND OTHER RELIEF 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Kruckel has a special interest in the outcome of this action, as the Executive Director of the Child Care Law Center (CCLC), dedicated to ensuring that all low-income working parents have access to high-quality, affordable childcare. CCLC assists many current and former CalWORKs recipients whose efforts at self-sufficiency are made more difficult by Respondents’ failure to ensure that counties are complying with their duty to timely provide WTW services, including childcare, so that recipients may participate in education, job training and work. 8. Petitioner LOW-INCOME FAMILIES’ EMPOWERMENT THROUGH EDUCATION ( LIFETIME ) is a member-based organization dedicated to empowering low- income parents to determine, pursue and achieve their goals for education, employment and economic security. LIFETIME is based in Oakland, California and has chapters around the state. LIFETIME has an interest under C.C.P. section 1085 in ensuring that Respondents comply with their legal duty to timely offer to CalWORKs recipients the WTW to which they are legally entitled. 9. Respondent WILL LIGHTBOURNE is the Director of the California Department of Social Services (CDSS). As Director, he is responsible for the management of CDSS and the enforcement, operation and administration of the laws and regulations pertaining to the administration of the CalWORKs Program. Welf. & Inst. Code 10553. Respondent LIGHTBOURNE is being sued in his official capacity, as the official responsible for ensuring CDSS and its agents act in conformity with federal and state law. Respondent LIGHTBOURNE is the proper Respondent in these proceedings by virtue of Welfare and Institutions Code section 10553. 10. Respondent CALIFORNIA DEPARTMENT OF SOCIAL SERVICES (CDSS) is the single state agency that oversees and is responsible for the ensuring that the CalWORKs program is administered in full compliance with applicable state and federal law. Welf. & Inst. Code 10600. Under Welfare and Institutions Code section 10531, CDSS is responsible for ensuring that each county’s WTW plan complies with state and federal requirements, and that each county states how it will timely deliver the full range of WTW activities and services necessary to move CalWORKs recipients to self-sufficiency. PETITION FOR WRIT OF MANDAMUS AND OTHER RELIEF 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. STATUTORY FRAMEWORK A. Federal And State Background: TANF And CalWORKs 11. In 1996, federal welfare reform replaced the Aid to Families with Dependent Children ( AFDC ) program with the Temporary Aid to Needy Families ( TANF ) program. TANF is a federally-funded block grant program designed to enable states to provide integrated cash assistance and employment services to needy families with children. One of the central, stated purposes of TANF is to end the dependence of needy parents on public assistance by promoting job preparation and employment. See 42 U.S.C. 601 et seq.; 45 C.F.R. 260.10(b). In fact, TANF was created as part of the Personal Responsibility and Work Opportunity Reconciliation Act. Id. (Emphasis added). 12. TANF imposed a maximum lifetime limit of 60 months that a non-exempt family may receive federally financed assistance. 42 U.S.C. 608(a)(7). TANF’s time limit differs from its predecessor, the AFDC program, which had provided cash aid to needy families for as long as they met all eligibility and participation requirements. Under TANF, states may adopt an even shorter time limit; they may also provide assistance to families beyond the 60 month federal time limit, so long as federal TANF funds are not used to do so. 13. In 1997, California enacted its version of the federal TANF program, CalWORKs. Welf. & Inst. Code 11200 et seq., originally enacted as AB 1542, Chapter 270, Statutes of 1997 (August 11, 1997). The CalWORKs program is aimed at promoting the well-being of children, strengthening families and helping parents achieve their potential for economic self- sufficiency through work. Manual of Policies and Procedures ( M.P.P. ) 42.701.1. Integrated provisions of the CalWORKs program require counties to assist recipients in achieving self- sufficiency by the time cash aid ends, by providing access to education, employment, job preparation, training, necessary support services and removal of barriers to employment through its WTW program. 14. States receive TANF funds only upon approval of a state plan that complies with federal requirements and furthers TANF goals. 45 C.F.R. 201.2 et seq. CDSS submits an PETITION FOR WRIT OF MANDAMUS AND OTHER RELIEF 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 annual state plan in which it certifies, among other things, how the state intends to provide[] parents with job preparation, work and support services to enable them to leave the program and become self-sufficient. California has certified that it will require counties to develop WTW plans for recipients within 90 days from the date aid is determined, or the date the recipient becomes non-exempt; the counties will then provide the full range of WTW. CDSS also has certified that it will ensure that the state plan’s requirements are in effect throughout the state. State Plan for Provision of Public Assistance under the Personal Responsibility and Work Opportunity and Reconciliation Act of 1996, Effective Oct. 1, 2010 (signed by Governor Schwarzenegger on 12\/28\/10) at p. 2 of 18; Welf. & Inst. Code 11325.21(a). 15. CDSS allocates the state’s TANF funds to the counties, and is responsible for ensuring that counties are complying with relevant provisions of the Welfare and Institutions Code in timely delivering aid and services, including WTW. Welf. & Inst. Code 10001(b), 10532 and 11320.3. Among other state plan requirements, a state must guarantee that it will make an initial assessment of the skills, prior work experience, and employability of each adult recipient who has not completed or is not attending secondary school, within 30 (or at state option 90) days after an individual becomes eligible for aid. 45 CFR 261.11(a), (b) (Emphasis added) California has adopted the 90 day option. Welf. & Inst. Code 11325.21(a). 16. When the Legislature enacted CalWORKs in 1997, it adopted the federal five year time limit. AB 1542, Chapter 270, Statutes of 1997 (August 11, 1997). In 2011, the Legislature reduced the maximum number of months that a non-exempt adult can receive aid to 48 months. Welf. & Inst. Code 11454, as amended by S.B. 72, Chapter 8, Statutes of 2011. 17. Once a CalWORKs adult recipient has received 48 months of time-limited aid, he or she is no longer eligible for TANF-funded cash aid, may only participate in WTW if the county allows, and is ineligible to receive most support services. Welf. & Inst. Code 11320.15. B. State, County And Recipient Duties Under The Welfare-To-Work Requirements 18. The CalWORKs statute mandates that each county shall submit a plan consistent with state law that describes how the county intends to deliver the full range of activities and PETITION FOR WRIT OF MANDAMUS AND OTHER RELIEF 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 services necessary to move CalWORKs recipients from welfare to work. Welf. & Inst. Code 10531. CDSS is responsible for determining whether the county plan is incomplete or inconsistent with state or federal law and taking necessary actions to bring it into compliance. Welf. & Inst. Code 10532(b)(2). 19. The CalWORKs statutes impose detailed requirements upon counties in the WTW process, with timeframes for each step in the WTW sequence. Upon being approved for CalWORKs aid, or becoming non-exempt from WTW requirements, the County must timely offer, and non-exempt CalWORKs recipients must participate in, WTW orientation, assessment, the creation of a WTW plan, and assigned WTW activities. Welf & Inst. Code 11320.1, 11325.21(a); M.P.P. 42-711.51, 42-711.61. 20. Following assessment and within 90 days after the date that a recipient’s eligibility for aid is determined or the date the recipient is required to participate in welfare-to-work activities , the county and the participant shall enter into a written welfare-to-work plan. Welf. & Inst. Code 11325.21(a) (emphasis added). The plan must specify the activities to which the participant is assigned, the supportive services that the county will provide to the recipient (such as child care, transportation reimbursement, job or training-related expenses), and shall include the activities and services that will move the individual into employment. Welf. & Inst. Code 11320.1(b), 11323.2, 11325.21; M.P.P. 42-711.6 et seq. Those recipients who are exempt from WTW participation must be given an opportunity to voluntarily participate. Welf. & Inst. Code 11320.3(c); M.P.P. 42-712.5. For those CalWORKs recipients who are not exempt from mandatory participation in WTW, their failure to participate without good cause results in severe monetary sanctions. Welf. & Inst. Code 11327.5. 21. At the time of application, and at any subsequent eligibility determination, the county must provide the individual with written, and orally as necessary, notice of the education, employment and training opportunities, the supportive services available through the WTW program, a description of the exemptions from required participation and consequences of a refusal to participate if not exempt, and of the time remaining on the recipient’s time clock. Welf. & Inst. Code 11324.8. PETITION FOR WRIT OF MANDAMUS AND OTHER RELIEF 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22. In 2009, in response to a severe budget shortfall and an increasing overall CalWORKs caseload, the Legislature determined that there was likely to be a temporary lack of funding to provide the full range of WTW services to all CalWORKs recipients. Budget Act of 1009, A.B. x4 4 (Chapter 4, Statutes of the Fourth Extraordinary Session of 2009). The Legislature responded by enacting new exemptions from mandatory WTW participation for parents with very young children. Welf. & Inst. Code 11320.3(b)(7); Id., see also Welf. & Inst. Code 11454.5. 23. Manifesting the Legislature’s intention that months when WTW services are unavailable are not countable toward the time limit, the CalWORKs 48 month time clock stopped for young child exempts until they no longer met the criteria for these exemptions, or December 31, 2012, whichever occurred first. Welf. & Inst. Code 11454.5(a)(7). The Legislature also provided that upon the exemption ending and the resumption of the clock ticking, the counties would re-engage the recipient in WTW. C. The Duty To Provide Full And Timely WTW Before Recipients Are Time- Limited. 24. Welfare and Institutions Code section 10000 mandates that in furtherance of the purpose of providing appropriate aid and services to all of its needy and distressed . . . aid [including CalWORKs] shall be administered and services provided promptly and humanely . . . [so] as to encourage self-respect, self-reliance, and the desire to be a good citizen, useful to society. Welfare and Institutions Code section 10500 mandates that aid, including CalWORKs aid, shall be administered in such manner as to secure for every person the amount of aid to which he is entitled, including provision of timely WTW services. Welfare and Institutions Code section 10001(b) directs the Department to provide grants in aid to counties so that they can fulfill the statutory mandate to provide timely and appropriate services to assist individuals [to] develop or use whatever capacity they can maintain or achieve for self-care and self- support. Welfare and Institutions Code section 11000 requires that the laws relating to the CalWORKs program shall be fairly and equitably construed to effect the stated objects and purposes of the program. The stated purpose of CalWORKs is to lift needy families out of PETITION FOR WRIT OF MANDAMUS AND OTHER RELIEF 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 poverty and help them achieve economic self-sufficiency within their period of time-limited aid. Welf. & Inst. Code 11200 et seq., originally enacted as AB 1542, Chapter 270, Statutes of 1997. 25. These CalWORKs statutes create a duty that the full range of integrated aid and services, including WTW, must be provided to recipients in a timely manner before recipients’ aid is time-limited. A fair and equitable construction of California’s CalWORKs laws that is in compliance with Welfare and Institutions Code section 11000, and one which effects the objects and purposes of the program, including transitioning adult recipients to self-sufficiency, is that because the CalWORKs time limit and WTW services are inextricably linked,the 48 month clock does not run while the county fails timely to make WTW services available to a non-exempt recipient. V. FACTUAL ALLEGATIONS A. Petitioner Loraine Jones 26. Petitioner Loraine Jones is a 26 year old mother of a five year old son, Zack, who is her only child. Ms. Jones has demonstrated her desire to work, and has tried hard to secure stable employment. But because of her poverty, lack of job skills, the failure of our state’s education system adequately to address her difficulties learning math, and other life circumstances, she has been unable to maintain stable employment. She therefore relies on the modest cash grant and WTW assistance that CalWORKs is supposed to provide. 27. Ms. Jones was first approved for CalWORKs aid in September 2008, when she was 21 years old and seven months pregnant. Ms. Jones reported her pregnancy at the time of application. As required, the County exempted her from WTW requirements for the duration of her pregnancy, and did not count these months against her time-on-aid clock. However, the County also did not inform Ms. Jones that she could voluntarily participate in WTW and receive supportive services while she continued to be exempt. 28. Following the birth of Ms. Jones’s son on December 6, 2008, of which the County was made aware, the County failed to update its records to reflect that she was no longer PETITION FOR WRIT OF MANDAMUS AND OTHER RELIEF 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pregnant. See CDSS State Hearing Decision No. 2013045293, a true copy of which is attached as Exhibit A, p. 2, \u00b6\u00b6 2, 3. 29. On her own initiative, Ms. Jones contacted the County in February and April 2010 and asked about participating in WTW activities, but the County failed to follow up. Id. at. 4, \u00b6 4. Without any assistance from the County, Ms. Jones tried to get herself back on her feet while caring for an infant and fighting depression and emotional issues resulting from her poverty, the lack of help from the County, and her sister’s untimely death. She participated in a job search program and applied for numerous jobs at fast food chains and stores. Ms. Jones’s attempts to secure sustainable employment were not successful. 30. The County continued to consider Ms. Jones exempt from WTW for approximately two and one half years, until May 2011. The County failed periodically to review Ms. Jones’s exempt status or to re-engage her once the exemption ended, as it is required to do. Then, when the County finally attempted to send her a notice to attend a WTW orientation, despite Ms. Jones having previously notified the County of her change of address, the WTW orientation notice was sent to an invalid address and returned to the County as undeliverable. Exhibit A, p. 2, \u00b6\u00b6 4, 5. 31. Until February 2012, the County violated its mandatory duty to notify Ms. Jones of the ticking of her CalWORKs time clock, or engage her in the WTW process, as required by the CalWORKs program. Until February 2012, the County did not contact her to engage her in WTW, attend orientation, or provide her with effective notice of supportive services. Id., p. 2, \u00b6\u00b6 5, 6. 32. On February 23, 2012, Ms. Jones once again contacted the County to inquire about WTW. At that point, the County finally informed Ms. Jones that she had used 40 months of her 48 months of time on aid, even though she still had no WTW plan, had not received an assessment, and had not been offered needed supportive services. Id., p. 2, \u00b6 5. 33. On March 15, 2012, Ms. Jones attended her first orientation, where she took a math and reading test. The County still has not completed any further assessment or offered her a WTW plan. No County worker met with Ms. Jones to properly appraise her employment history, vocational goals, or what supportive services she might need to achieve self-sufficiency. Id. at 4, PETITION FOR WRIT OF MANDAMUS AND OTHER RELIEF 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 \u00b6\u00b6 4, 5. 34. At all times since January 2010, Ms. Jones has been and continues to be willing to enter into a written WTW plan with the County and participate in mandated WTW activities. Ms. Jones has been and remains dependent upon the County to create a WTW plan and offer supportive services so that she may complete her GED, obtain job training, and employment. 35. In October 2012, the County notified Ms. Jones that, effective that month, she had used all 48 months of her time on aid clock and her aid would stop. 36. Ms. Jones requested an administrative hearing to challenge the County’s determination. A hearing was held on April 3, 2013, and a written decision was issued on June 11, 2013. Based on the uncontroverted evidence in the record, the Administrative Law Judge (ALJ) concluded as a matter of fact that, for over two and one half years, the County had not effectively notified Ms. Jones of available supportive services and had not provided her with a WTW plan as required by California statute and regulations. The ALJ concluded that the County’s persistent failure to engage Ms. Jones and provide her with a WTW plan or the necessary supportive services, as required by statute and regulations, constituted good cause for Ms. Jones to not participate in WTW. However, the ALJ found that she lacked the authority to adjust Ms. Jones’s time on aid clock because CDSS’ policy limited exemptions from time on aid to those explicitly enumerated in the CalWORKs statutes. Id. at 10. 37. The County has implemented the June 11, 2013 hearing decision. According to that decision, Ms. Jones became no longer exempt as of December 2010 and as of March 2014 she has used 40 of her 48 months of time-limited aid. 38. When her time-limited aid ends in less than eight months, Ms. Jones will be removed from the CalWORKs grant and her family’s monthly income will be reduced to only $333 per month. She will have insufficient income to meet her and her child’s basic expenses. Her desperate financial circumstances will make it extremely difficult, if not impossible, to take advantage of any limited WTW services that the County, at some later date, may choose to offer. B. Petitioner Kim Kruckel 39. Petitioner KIM KRUCKEL is the Executive Director of the Child Care Law Center PETITION FOR WRIT OF MANDAMUS AND OTHER RELIEF 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (CCLC). She is concerned about the effect that Respondents’ policy has on the low-income parents served by CCLC, particularly current and former CalWORKs recipients who rely on CalWORKs child care services in order to prepare for employment, or work. In the absence of these necessary support services, parents will be unable to take the necessary steps to achieve economic self-sufficiency, and their children will remain trapped in deep poverty. Unless childcare is provided to CalWORKS recipients through the WTW program, these parents will be turned down by every other subsidized childcare provider based on a lack of availability of openings and an exceedingly long waiting list. By not providing childcare services to all eligible CalWORKs recipients through WTW, Respondents’ policy places additional pressures on the already overtaxed waiting list for subsidized childcare. 40. Based on her personal experience working with childcare providers and persons seeking childcare, she is aware that CalWORKs parents are routinely not provided with the necessary information regarding the availability of childcare through the CalWORKs program. C. Petitioner Lifetime 41. Petitioner Lifetime’s mission is to empower low-income parents to determine, pursue and achieve their goals for education, employment and economic security. Lifetime works with current and former CalWORKs parents to expand educational opportunities for CalWORKs parents, as the most effective means of lifting families out of poverty. In furtherance of Lifetime’s mission, the organization works with parents to ensure they have timely access to the full range of WTW opportunities and services. 42. Lifetime’s mission and the goals of its members are frustrated by Respondents’ failure to ensure that counties make available on a timely basis, and for the full duration of time- limited benefits, WTW activities and services. D. Respondent’s Systemic Failure To Ensure That Counties Make Available Timely Welfare-To-Work, And To Take Corrective Action Where The Counties Fail To Do So. 43. Petitioners are informed and believe that the counties’ failure to provide timely WTW services to CalWORKs recipients is, and has been, widespread, and that many other non-exempt, PETITION FOR WRIT OF MANDAMUS AND OTHER RELIEF 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 adult CalWORKs recipients who have not received timely WTW services will be terminated from aid before they receive their full period of WTW due to the following types of systemic practices and policies: \uf0b7 Many, if not all, counties systematically fail to assess and enter into written WTW plans with their CalWORKs recipients within the required 90 day time period following when they are determined eligible for aid, or no longer exempt from WTW participation; \uf0b7 Many, if not all, counties begin counting the time for the 48 month period from the date of application, and continue counting time, even when the county has failed to timely offer the recipient a WTW plan; \uf0b7 Many, if not all, counties terminate recipients from aid due to the 48 month time limit even if, due to county delay or error, the recipients have not been offered the full period of WTW services that the Legislature intended; \uf0b7 Many, if not all, counties fail to make available on a timely basis, WTW services and opportunities to persons with Limited English Proficiency; \uf0b7 Many, if not all, counties fail to make available on a timely basis, WTW services and opportunities to persons whose case is transferred from one county to another; \uf0b7 Many, if not all, counties fail to note that a particular exemption has ended, and consequently fail to timely notify CalWORKs recipients of the expiration of their exemption, and fail to make available on a timely basis, WTW services and opportunities to those persons whose time on aid clocks have commenced running; \uf0b7 At least one county’s failure to note that an exemption due to pregnancy has ended when a pregnancy ends is so commonplace that Alameda County has coined a name for it — a runaway pregnancy. Exhibit A, p. 2, \u00b6 3 and p. 4, \u00b6 4; \uf0b7 Many, if not all, counties believe that they are not required and do not even have authority to stop the 48 month clock during any time when recipients do not receive WTW services as a result of county error or failure; \uf0b7 The Department has no regulation or policy, and has failed to inform counties, that for periods prior to January 1, 2014, they have such authority and\/or has failed to direct them to remove from CalWORKs recipients’ time on aid clock any month in which the County failed to timely have offered a WTW plan; \uf0b7 The Department fails to investigate and hold accountable counties which fail to make WTW plans available in a timely manner; and \uf0b7 The Department fails to obtain information from counties regarding their failure to provide timely WTW services so that it may take corrective action. 44. As a result of the aforementioned systemic practices and policies, the Department has led Ms. Jones and other CalWORKs recipients to believe that they are to receive timely WTW PETITION FOR WRIT OF MANDAMUS AND OTHER RELIEF 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 services but has failed to disclose that those services would not be provided in a timely manner and that the time period during which those services were not made available would still count toward their time limits. 45. Ms. Jones and other CalWORKs recipients rely upon the Department to notify them of the means to maximize their benefits. They have been and are unaware that they have not and will not be provided with timely WTW services, nor timely re-engaged upon the expiration of their exemption, and yet will have the time during which they have not been provided such services still count toward their 48 month time limit. 46. Ms. Jones and other CalWORKs recipients have consequently had to bear the burden of the Department’s failure to ensure that the counties fulfill their duties to provide timely WTW services and when counties fail to do so, to exclude time that is therefore uncountable from the recipients’ 48 month time limit. E. Allegations Regarding Writ, Injunctive And Declaratory Relief 47. Petitioners have a beneficial interest in Respondents’ performance of their legal duties. 48. Petitioners have no plain, speedy, and adequate remedy in the ordinary course of the law. 49. Unless the Department is ordered to ensure that counties timely offer WTW services to Ms. Jones and similarly situated CalWORKs recipients, and that counties do not terminate CalWORKs cash aid before time-limited recipients have been afforded the full duration of WTW services, Ms. Jones and other CalWORKs recipients whose aid is or will be prematurely terminated will be irreparably harmed. 50. The Department’s threatened wrongful conduct would also harm the public interest by, among other things, causing widespread unemployment and destitution, thereby further burdening public agencies responsible for providing safety net support. 51. It would be extremely difficult, if not impossible, to ascertain the amount of compensation which will afford Petitioners adequate relief if Respondents’ wrongful conduct is not enjoined. 52. Unless compelled by this Court to comply with the various legal obligations raised PETITION FOR WRIT OF MANDAMUS AND OTHER RELIEF 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 herein, Respondents will continue to refuse to perform their duties, and Petitioners will be injured as a result. 53. Written demand was made upon the Respondents to perform their duties. In contravention of the laws and the demand made upon them, Respondents have failed and refused to perform their duties mandated by law. 54. At all times relevant to this action, Respondents have had and continue to have the legal ability to perform their duties but despite demand have failed and refused to do so. 55. An actual controversy has arisen and presently exists between Petitioners and Respondents. Petitioners claim that Respondents are obligated by law to provide timely WTW services throughout the period of aid received and, if recipients do not receive timely WTW services, the period during which those services are not received does not count toward the time limit. Respondents dispute these contentions and, instead, claim that they have no such obligations or that they have been met. 56. A judicial declaration and\/or writ of mandate is necessary and appropriate at this time in order that Petitioners may ascertain and enforce their rights and duties as set forth above. VI. CAUSES OF ACTION FIRST CAUSE OF ACTION For A Writ of Administrative Mandate Under Code of Civ. Proc. 1094.5. 57. Petitioner Jones realleges and incorporates herein by reference each and every allegation contained in Paragraphs 1 through 56. 58. Respondent Lightbourne’s decision is a prejudicial abuse of discretion and contrary to law in that it fails to properly count as time on aid only those months in which Petitioner Jones was not exempt, and was offered the Welfare-to-Work opportunities and services to which she was statutorily entitled. Welf. & Inst. Code 11325.2. 59. Respondent Lightbourne abused his discretion by failing to provide a remedy to Ms. Jones for the County’s clear, repeated failure to comply with its statutory duties under Welf. & Inst. Code sections 10000, 10001 (b), 10500, 11000, and applicable CalWORKs statutes. PETITION FOR WRIT OF MANDAMUS AND OTHER RELIEF 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 60. Respondent Lightbourne’s decision is a prejudicial abuse of discretion and contrary to the law governing exemptions and non-counting of time on aid to CalWORKs recipients for whom the County failed to re-engage in WTW and was not providing necessary supportive services. Welf. & Inst. Code 11320.3(a) and (f) and 11454.5, as amended by S.B. 72, Chapter 8, Statutes of 2011. 61. The decision’s findings that the County failed to offer support services to a parent caring for a young child direct the conclusion that she was excused from participation for good cause, and remained exempt until she was re-engaged by the county. Id. The decision’s conclusion that months after November 2010 when the County had not yet re-engaged her nevertheless count toward her time limit is a prejudicial abuse of discretion and contrary to law. 62. Respondent Lightbourne’s decision is a prejudicial abuse of discretion and contrary to law in that it fails to set forth the findings that bridge the analytic gap between the evidence and the ultimate decision. The evidence and findings conclusively establish that the County persistently failed to comply with its statutory duties to provide Petitioner with the full period of WTW, or the required notices. The decision denying her a restoration of time on her clock while the County failed to make WTW available to her lacks the required analytic bridge. 63. Petitioner Loraine Jones has exhausted all administrative remedies available. SECOND CAUSE OF ACTION Respondents’ Violation of the Duty to Ensure that Counties Make Available Timely WTW and Supportive Services, and Take Appropriate Corrective Action. Code of Civ. Proc. 1085; Welf. & Inst. Code 10000, 10001(b), 10500, 11320.1, 11323.2, and 11325.21. 64. All Petitioners reallege and incorporate herein by reference each and every allegation contained in Paragraphs 1 through 63. 65. Respondents have a clear, present, and ministerial duty under Welfare and Institutions Code sections 10000, 10001(b), 10500, 11320.1 11323.2 and 11325.21 to ensure that counties make available to all recipients WTW on a timely basis. Respondents have failed to comply with that duty and have failed take corrective action, including issuance of a policy instructing counties that months when a recipient does or did not timely receive WTW services, due to county delay or error, are not countable toward the 48 month time limit. PETITION FOR WRIT OF MANDAMUS AND OTHER RELIEF 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 66. By leading recipients to believe that they will be given a timely opportunity to participate in WTW so that they may become employable before the expiration of their time- limited aid, and that the Department will assist them in maximizing their benefits and services, knowing that this is not true, Respondents are estopped from allowing the termination of time- limited aid until the full period of WTW is made available. THIRD CAUSE OF ACTION Respondents’ Violation of The Duty to Ensure that Counties Provide Timely Notice of the Expiration of Exemptions, and Timely Re-Engage Non-Exempt Participants. Code of Civ. Proc. 1085; Welf. & Inst. Code 11324.8, 11454.5. 67. All Petitioners reallege and incorporate herein by reference each and every allegation contained in Paragraphs 1 through 66. 68. Respondents have violated their mandatory duty to ensure that counties provide CalWORKs recipients with timely notice when their exemptions are expiring, and of the commencement of the ticking of their time on aid clock. 69. Respondents have also violated their mandatory duty to ensure that counties have timely re-engaged previously exempt CalWORKs recipients in order to comply with their statutory duty to make available a WTW plan within 90 days of the expiration of an exemption from the time limit. 70. Petitioner Jones, and others like her, have been and continue to be harmed by the Respondents’ failure to fulfill their statutory duty to ensure that they receive timely notice of the expiration of their exemption from the time limit, and timely re-engage them in WTW. VII. RELIEF REQUESTED WHEREFORE, Petitioners request that this Court: 1. Issue a writ of administrative mandamus pursuant to Code of Civil Procedure 1094.5 setting aside Respondent Lightbourne’s decision that Petitioner Jones is not entitled to have her time-on-aid clock restored for any months after November 2010, during which the county failed to provide her with WTW opportunities and services; 1 2. Issue a peremptory writ of mandate pursuant to Code of Civil Procedure 1085, 2 compelling Respondents to fulfill their mandatory duty to ensure that counties make available to 3 CalWORKs recipients the full period of Welfare-to-Work activities and supportive services to 4 which they are statutorily entitled, and to take corrective action when they fail to do so, including 5 prohibiting counties from time-limiting CalWORKs aid unless and until the counties have made 6 available the full period of WTW; 7 3. Declare that Welfare and Institutions Code sections 10000, lOOOl(b), 10500, 11000, 8 11325.2 and 11325.21 impose upon Respondents a mandatory duty to ensure that counties 9 make available timely WTW to all recipients and that as the state agency responsible for 1 O ensuring county compliance, to take corrective action when counties fail to do so; 11 4. Enjoin Respondents to make available timely WTW to all recipients, and (a) notify 12 county welfare departments that they are authorized and obligated not to count the time during 13 which they failed to make available timely WTW toward the 48 months of time-limited aid, and 14 (b) take reasonable steps, including notice to all persons harmed by the Department’s failure to 15 comply with these duties that they are entitled to an adjustment of their CalWORKs time clock, 16 and the means for requesting same; 17 5. Find that Respondents are estopped from counting on recipients’ time on aid clock 18 any months in which they were eligible to participate in WTW and the county failed to re-engage 19 the recipient or adopt a WTW plan; 20 6. Award Petitioners their reasonable costs and attorneys’ fees; and 21 7. Order such other and further relief as the Court deems just and proper. 22 23 24 25 26 27 28 DATED: March 2014 PETITION FOR WRIT OF MANDAMUS AND OTHER RELIEF 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFICATION I, LORAINE JONES, am one of the Petitioners in the above-entitled action. I am aware of the nature of the Petition for Writs of Mandate being filed on my behalf, the legal bases for the Petition and the relief being sought. I certify as true and correct those paragraphs of said Petition which are based upon my personal knowledge. As to each of the remaining paragraphs of said Petition, these are stated based upon my information and belief and as to those matters, I believe them to be true. I declare under the penalty of perjury under the laws of the State of California that the above verification is true and correct. Executed in Berkeley, Alameda County on -+-‘=:.>.L.!..~\”‘–=I’-:—-\”‘~\”–‘ 2014. LORAINE JONES 1 2 3 VERIFICATION I, DIANA SPATZ, am the Executive Director of Lifetime, one of the Petitioners in the above-entitled action. I am aware of the nature of the Petition for Writs of Mandate being filed on 4 Lifetime’s behalf, the legal bases for the Petition and the relief being sought. I certify as true and 5 correct those paragraphs of said Petition which are based upon my personal knowledge. As to each 6 of the remaining paragraphs of said Petition, these are stated based upon my information and belief 7 and as to those matters, I believe them to be true. 8 I declare under the penalty of perjury under the laws of the State of California that the above 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PETITION FOR WRIT OF MANDATE AND OTHER RELIEF: VERIFICATION 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFICATION I, KIM KRUCKEL, am an Alameda County resident and one of the Petitioners in the above-entitled action. I am aware of the nature of the Petition for Writs of Mandate being filed on my behalf, the legal bases for the Petition and the relief being sought. To the extent that the Petition is based upon facts known personally to me, I certify them to be true. As to each of the remaining paragraphs of said Petition, these are stated based upon my information and belief and as to those matters, I believe them to be true. I declare under the penalty of perjury under the laws of the State of California that the above verification is true and correct. Executed in Oakland, Alameda County on —‘–\”——4,.1-\”—‘~—‘\”\”-l—, 2014. EXHIBIT A CALIFORNIA DEPARTMENT OF SOCIAL SERVICES Hearing No. 2013045293 In the Matter o\/Claimant(s): Adopted by the Director 611112013 D Loraine Russ Jones 24 71 Onion Street #E Alameda, CA 94501 California Department of Social Services I submit the attached proposed decision for rev\u00b7 d recommend its adoption. Cert Date: 6\/11\/2013 State Hearing Record Hearing Date: Aid Pending: Agency: Agency: Authorized Rep. Organization: SSN: AKA: Case Name: LA District\/Case: April 3, 2013 Not Applicable Alameda County East Bay Community Law Center Release Date: Issue Codes: Agency Representative: Agency Representative: Authorized Rep: SSN: AKA: Language: Companion Case: Appeal Rights 6\/11\/2013 [102-1] (109-3] Mary Michel-Gonzales Ed Barnes, Esq.; Arusha Gordon You may ask\/or a rehearing of this decision by mailing a written request to the Rehearing Unit, 744 P Street, MS 9-17-37, Sacramento, CA 95814 within 30 days after you receive this decision. This time limit may be extended up to 180 days only upon a showing of good cause. In your rehearing request, state the date you received this decision and why a rehearing should be granted If you want to present additional evidence, describe the additional evidence and explain why it was not introduced before and how it would change the decision. You may contact Legal Services for assistance. You may ask\/or judicial review of this decision by filing a petition in Superior Court under Code of Civil Procedure 1094.5 within one year after you receive this decision. You may file this petition without asking for a rehearing. No filing fees are required You may be entitled to reasonable attorney’s fees and costs if the Court renders a final decision in your favor. You may contact Legal Services for assistance. This decision is protected by the corifidentiality provisions of Welfare and Institutions Code 10850. CDSS State Hearings Division Decision Cover Page State of California CDSS State H

pdf Kelly v. Kent, May 2019 – Medi-Cal Spousal Impoverishment Case-

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Kelly v. Kent Medi-Cal Spousal Impoverishment- .pdf

” M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 JOINT STIPULATION AND [PROPOSED] ORDER RE: FILING OF VERIFIED FOURTH AMENDED PETITION McDERMOTT WILL & EMERY LLP CHARLES E. WEIR (State Bar No. 211091) [email protected] GREGORY R. JONES (State Bar No. 229858) [email protected] JI WON KIM (State Bar No. 299210) [email protected] 2049 Century Park East, Suite 3800 Los Angeles, CA 90067-3218 Telephone: 310.277.4110 Facsimile: 310.277.4730 ADDITIONAL COUNSEL ON NEXT PAGE Attorneys for Petitioners\/Plaintiffs SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES CENTRAL DISTRICT PATRICK KELLEY and MATTHEW REED, by and through his guardian ad litem, VICKI REED, Petitioners\/Plaintiffs, v. JENNIFER KENT, in her official capacity as Director of the California Department of Health Care Services and the CALIFORNIA DEPARTMENT OF HEALTH CARE SERVICES, Respondents\/Defendants. CASE NO. BS170173 (Assigned to Hon. James C. Chalfant) JOINT STIPULATION AND [PROPOSED] ORDER RE: FILING OF VERIFIED FOURTH AMENDED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085); ADMINISTRATIVE MANDAMUS (CODE CIV. PROC. 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF E le ct ro ni ca lly R ec ei ve d 05 \/1 0\/ 20 19 0 1: 26 P M M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 JOINT STIPULATION AND [PROPOSED] ORDER RE: FILING OF VERIFIED FOURTH AMENDED PETITION JUSTICE IN AGING CLAIRE M. RAMSEY (State Bar No. 246997) [email protected] 1330 Broadway, Suite 525 Oakland, CA 94612-2522 Telephone: 510.663.1055 DENNY CHAN (State Bar No. 290016) [email protected] 3660 Wilshire Blvd., Suite 718 Los Angeles, CA 90010 Telephone: 213.639.0930 BET TZEDEK LEGAL SERVICES JENNA L. MIARA (State Bar No. 305703) [email protected] JENNIFER SPERLING (State Bar No. 310551) [email protected] 3250 Wilshire Blvd, Fl 13 Los Angeles, CA 90010-1601 Telephone: 323.939.0506 Facsimile: 213.471.4568 DISABILITY RIGHTS CALIFORNIA ELISSA S. GERSHON (State Bar No. 169741) [email protected] ELIZABETH A. ZIRKER (State Bar No. 233487) [email protected] ANNA E. LEACH-PROFFER (State Bar No. 242791) anna.leach-proffer@ disabilityrightsca.org 1330 Broadway, Suite 500 Oakland, CA 94612-2509 Telephone: 510.267.1200 Facsimile: 510.267.1201 WESTERN CENTER ON LAW & POVERTY RICHARD A. ROTHSCHILD (State Bar No. 67356) [email protected] ROBERT D. NEWMAN (State Bar No. 86534) [email protected] CORILEE RACELA (State Bar No. 268867) [email protected] 3701 Wilshire Blvd., Suite 208 Los Angeles, CA 90010 Telephone: 213.487.7211 Facsimile: 213.487.0242 M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 JOINT STIPULATION AND [PROPOSED] ORDER RE: FILING OF VERIFIED FOURTH AMENDED PETITION Petitioners Patrick Kelley and Matthew Reed (collectively Petitioners ) and respondents California Department of Health Care Services ( DHCS ) and DHCS Director Jennifer Kent, acting through their respective attorneys, have agreed and request that the Court enter an Order, on the terms provided for below, regarding the filing of Petitioners’ proposed Verified Fourth Amended Petition for Writ of Mandate, Administrative Mandamus and Complaint for Declaratory and Injunctive Relief as follows: 1. On December 21, 2018, Petitioners filed their Verified Third Amended Petition for Writ of Mandate, Administrative Mandamus and Complaint for Declaratory and Injunctive Relief ( Third Amended Petition ). 2. On March 12, 2019, Respondents DHCS and Kent filed their answer to the Third Amended Petition asserting the affirmative defense of failure to join indispensable parties to Petitioner Reed’s First Cause of Action brought under a Civil Procedure Code section 1094.5. 3. Petitioners have provided Respondents a proposed Verified Fourth Amended Petition for Writ of Mandate, Administrative Mandamus, and Complaint for Declaratory and Injunctive Relief ( Fourth Amended Petition ) that California Department of Social Services ( CDSS ) and CDSS Acting Director Pat Leary as respondents to the First Cause of Action. The parties agree that the Fourth Amended Petition, attached hereto as Exhibit A, should be filed in lieu of proceeding with a motion to amend to add a necessary party. THEREFORE, Petitioners and Respondents, by and through their undersigned counsel of record, hereby stipulate and agree that: 1. Petitioners may file the Verified Fourth Amended Petition in the form attached as Exhibit A to this Stipulation. 2. Petitioners may join as respondents CDSS and CDSS Acting Director Pat Leary. 3. Respondents DHCS and Director Jennifer Kent reserve all defenses to the proposed Verified Fourth Amended Petition and does not waive any defenses by executing this stipulation. 4. CDSS and CDSS Acting Director Pat Leary reserve all defenses to the proposed Verified Fourth Amended Petition. M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 2 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Dated: May 10, 2019 Dated: May 10, 2019 McDERMOTT WILL & EMERY LLP By: GREGORY R. JONES Attorneys for Petitioners\/Plaintiffs XAVIER BECERRA Attorney General of California Richard T. Waldow Supervising Deputy Attorney General By: \/s\/ Michael Byerts MICHAEL BYERTS Deputy Attorney General Attorneys for Respondents M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 3 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF [PROPOSED] ORDER Pursuant to the foregoing Stipulation, and good cause appearing, it is hereby ORDERED that: 1. Petitioners can file the Fourth Amended Petition. 2. Petitioners can join as Respondents CDSS and Director Leary. 3. The parties reserve all rights as stated in the stipulation above. IT IS SO ORDERED. Dated: ___________________ ______________________________ The Honorable James C. Chalfant Judge of the Superior Court EXHIBIT A M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF McDERMOTT WILL & EMERY LLP CHARLES E. WEIR (State Bar No. 211091) [email protected] GREGORY R. JONES (State Bar No. 229858) [email protected] JI WON KIM (State Bar No. 299210) [email protected] 2049 Century Park East, Suite 3800 Los Angeles, CA 90067-3218 Telephone: 310.277.4110 Facsimile: 310.277.4730 ADDITIONAL COUNSEL ON NEXT PAGE Attorneys for Petitioners\/Plaintiffs SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES CENTRAL DISTRICT PATRICK KELLEY and MATTHEW REED, by and through his guardian ad litem, VICKI REED, Petitioners\/Plaintiffs, v. JENNIFER KENT, in her official capacity as Director of the California Department of Health Care Services; the CALIFORNIA DEPARTMENT OF HEALTH CARE SERVICES; PAT LEARY, in her official capacity as the Acting Director of the California Department of Social Services; and the CALIFORNIA DEPARTMENT OF SOCIAL SERVICES, Respondents\/Defendants. CASE NO. BS170173 (Assigned to Hon. James C. Chalfant) FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085); ADMINISTRATIVE MANDAMUS (CODE CIV. PROC. 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF JUSTICE IN AGING CLAIRE M. RAMSEY (State Bar No. 246997) [email protected] 1330 Broadway, Suite 525 Oakland, CA 94612-2522 Telephone: 510.663.1055 DENNY CHAN (State Bar No. 290016) [email protected] 3660 Wilshire Blvd., Suite 718 Los Angeles, CA 90010 Telephone: 213.639.0930 BET TZEDEK LEGAL SERVICES JENNA L. MIARA (State Bar No. 305703) [email protected] JENNIFER SPERLING (State Bar No. 310551) [email protected] 3250 Wilshire Blvd, Fl 13 Los Angeles, CA 90010-1601 Telephone: 323.939.0506 Facsimile: 213.471.4568 DISABILITY RIGHTS CALIFORNIA ELISSA S. GERSHON (State Bar No. 169741) [email protected] ELIZABETH A. ZIRKER (State Bar No. 233487) [email protected] ANNA E. LEACH-PROFFER (State Bar No. 242791) anna.leach-proffer@ disabilityrightsca.org 1330 Broadway, Suite 500 Oakland, CA 94612-2509 Telephone: 510.267.1200 Facsimile: 510.267.1201 WESTERN CENTER ON LAW & POVERTY RICHARD A. ROTHSCHILD (State Bar No. 67356) [email protected] ROBERT D. NEWMAN (State Bar No. 86534) [email protected] CORILEE RACELA (State Bar No. 268867) [email protected] 3701 Wilshire Blvd., Suite 208 Los Angeles, CA 90010 Telephone: 213.487.7211 Facsimile: 213.487.0242 M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF INTRODUCTION 1. Through this lawsuit, Petitioners seek to compel the California Department of Health Care Services ( DHCS ) and its Director, Jennifer Kent (collectively, DHCS Respondents ) to fulfill their ministerial duty to ensure prompt, consistent, and correct application of the expanded spousal impoverishment protection to Medi-Cal eligibility determinations statewide. 2. The expanded spousal impoverishment protection, a special Medi-Cal income and asset counting methodology, enables individuals with disabilities who are married to qualify for Medi-Cal. Medi-Cal eligibility enables beneficiaries with disabilities to receive the home and community-based services they need to continue living in the community and with their spouse. Prior to this change in the law, the choice for the spouse requiring home and community-based services was institutionalization or impoverishment. 3. Effective January 1, 2014, the federal Patient Protection and Affordable Care Act ( ACA ) requires all states to expand the definition of institutional spouse to include spouses who are eligible for a variety of Medi-Cal home and community-based programs. The practical effect of this definitional change is to increase the number of individuals who qualify for Medi-Cal using the spousal impoverishment protection methodology. 4. For more than five years, DHCS Respondents have failed to ensure all potentially eligible individuals 1 have received a correct Medi-Cal eligibility determination or to ensure that the harms caused by an incorrect Medi-Cal eligibility determination have been cured. As a result, since January 1, 2014, thousands of individuals with significant disabilities have been erroneously denied Medi-Cal or wrongly assessed a Medi-Cal share of cost, and as a consequence were either denied access to needed home and community-based services or forced to pay out of pocket for those services, often at a prohibitive cost. The cascading effect of DHCS Respondents’ failures 1 Potentially eligible individuals refer to individuals who meet all of the non-financial eligibility requirements for Medi-Cal\u2014(i.e., they are residents of California, are married or in a registered domestic partnership, have satisfactory immigration status, and require a nursing home level of care)\u2014and would qualify for Medi-Cal if the expanded spousal impoverishment protections were utilized to assess their financial eligibility. M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 2 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF placed Petitioners and other potentially eligible individuals at unnecessary risk of institutionalization and impoverishment. 5. Petitioners are each married older adults who have limited income and resources and who have disabilities caused by significant medical conditions. DHCS Respondents failed to properly and promptly determine Petitioners’ Medi-Cal eligibility using the expanded spousal impoverishment protections. 6. Petitioners bring this Petition for Writ of Mandate and Complaint for Injunctive and Declaratory Relief to compel DHCS Respondents to fulfill their ministerial duties: (1) to identify all potentially eligible individuals statewide; (2) to notify all potentially eligible individuals statewide of the expanded spousal impoverishment protection so that they have a reasonable opportunity to apply or seek a correct eligibility determination; (3) to supervise the counties and to enforce the expanded spousal impoverishment protection to ensure all potentially eligible individuals statewide receive correct and prompt Medi-Cal eligibility determinations; (4) to create a process to determine retroactive eligibility for In-Home Supportive Services ( IHSS ), a Medi- Cal covered home and community-based services benefit that requires Medi-Cal eligibility as a pre-requisite; and (5) to provide retroactive reimbursement or payment for Medi-Cal covered expenses that would have been covered if Medi-Cal had been properly assessed initially. 7. Petitioner Matthew Reed seeks an administrative writ under Code of Civil Procedure 1094.5 against Respondents California Department of Social Services ( CDSS ) and its Acting Director, Pat Leary (collectively, CDSS Respondents ), and DHCS Respondents vacating his final hearing decision and granting him: (1) eligibility for IHSS services retroactive to the earliest date Petitioner Reed would have been eligible for Medi-Cal, if the expanded spousal impoverishment protection had been applied, and (2) payment to his in-home caregivers for work performed during the period of retroactive eligibility. PARTIES 8. Petitioner Patrick Kelley is a married 68-year-old veteran with multiple sclerosis, residing in Los Angeles, California. Because of the severity of his disabilities and medical conditions, Petitioner Kelley is eligible for home and community-based services at a nursing home M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 3 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF level of care. As of January 1, 2014, Petitioner Kelley would have been eligible for Medi-Cal had the expanded spousal impoverishment protection been applied. Instead, Petitioner Kelley’s application for Medi-Cal was denied for exceeding the Medi-Cal asset limit. 9. Although Petitioner Kelley was eventually able to obtain Medi-Cal coverage after an administrative fair hearing, he continues to have a beneficial interest in the consistent statewide administration and supervision of the expanded spousal impoverishment protection because, like all Medi-Cal beneficiaries, he will need to renew his Medi-Cal eligibility annually and is at risk of losing eligibility at the time of redetermination. Because DHCS Respondents have failed to ensure consistent statewide administration and supervision of the counties’ application of the expanded spousal impoverishment protection there is a danger that the county will not apply the correct eligibility rules to his case during his annual redetermination. 10. Petitioner Matthew Reed participates in this action through his wife, Vicki Reed, as his guardian ad litem. Petitioner Reed resides in Los Angeles, California. Petitioner Reed is a 63- year-old man with multiple sclerosis, Bell’s Palsy, and vascular dementia following a stroke. Because of the severity of his disabilities and medical conditions, Petitioner Reed is eligible for Medi-Cal home and community-based services at a nursing home level of care. At least as early as July 1, 2016, Petitioner Reed would have been eligible for Medi-Cal without a share of cost had expanded spousal impoverishment protections been applied. Instead, he was erroneously required to pay a share of cost of more than $1,500 a month. Because Petitioner Reed was not able to afford this share of cost, he was not able to access Medi-Cal benefits, including IHSS and other home and community-based services programs. 11. Petitioner Reed has still not received all of the Medi-Cal benefits to which he is entitled had the expanded spousal impoverishment protection been properly administered. Specifically, Petitioner Reed has been denied an IHSS assessment retroactive to the date of his Medi-Cal eligibility under the expanded spousal impoverishment protection. Petitioner Reed has a beneficial interest in the correct application of the expanded spousal impoverishment protection in his case. He also has a beneficial interest in the consistent statewide administration and supervision of the expanded spousal impoverishment protection because, like all Medi-Cal beneficiaries, he M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 4 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF will need to renew his Medi-Cal eligibility annually and is at risk of losing eligibility at the time of redetermination because DHCS Respondents have failed to ensure consistent statewide administration and supervision of the counties’ application of the expanded spousal impoverishment protection. 12. Respondent DHCS is the single state Medicaid agency and administers the Medi- Cal program, as Medicaid is known in California. As the single state Medicaid agency, DHCS has a mandatory ministerial duty to implement all federal Medicaid eligibility provisions and to administer all Medi-Cal home and community-based services programs in accordance with all applicable federal and state laws and regulations. 13. Respondent Jennifer Kent is the current Director of DHCS. As such, Director Kent has a mandatory ministerial duty to ensure DHCS’s compliance with all applicable state and federal laws governing the Medi-Cal program. Welf. & Inst. Code 10721. Director Kent is sued only in her official capacity. 14. Respondent CDSS is the agency delegated by Respondent DHCS to administer the IHSS program. On August 20, 2018, Respondent CDSS adopted the Administrative Law Judge’s decision that upheld the Los Angeles County Department of Social Services’ denial of IHSS eligibility retroactive to the date of Petitioner Reed’s Medi-Cal application and denied his request for equitable relief. 15. Respondent Pat Leary is the current Acting Director of CDSS. As such, Director Leary has a mandatory ministerial duty to ensure Respondent CDSS’s compliance with all applicable state and federal laws governing the IHSS program. Welf. & Inst. Code 10600; 10553; 12301; 12302. Director Leary is sued only in her official capacity. STATUTORY AND REGULATORY FRAMEWORK The Medi-Cal Program 16. The Medicaid program is a cooperative, federal and state-funded program that provides medical assistance to low-income elderly persons and persons with disabilities, among others. See 42 U.S.C. 1396 et seq. The purpose of the Medicaid program is to furnish, medical assistance on behalf of aged, blind or disabled individuals, whose income and resources are M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 5 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF insufficient to meet the costs of necessary medical services and to help such families and individuals to attain or retain capability for independence or self-care . Id. at 1396-1. 17. The goal of California’s Medicaid program, Medi-Cal, is to provide comprehensive health care to low-income Californians who cannot afford the cost of health care. Welf & Inst. Code 14012(a). 18. On the federal level, Medicaid is administered by the Centers for Medicare and Medicaid Services ( CMS ), an agency within the United States Department of Health and Human Services. 19. All states that elect to participate in the Medicaid program must comply with the requirements of Title 19 of the Social Security Act (hereinafter Medicaid Act ) and its implementing regulations. 42 U.S.C. 1396-1396v. California has elected to participate in the Medicaid program. Welf. & Inst. Code 14000 et. seq. Duties and Obligations of the Single State Agency 20. As the designated single state agency for Medi-Cal, Respondent DHCS has a mandatory ministerial duty to administer the Medi-Cal program according to state and federal law. Welf. & Inst. Code 14100.1; 22 C.C.R. 50004. As such, Respondent DHCS is solely responsible for administering and supervising the state’s Medicaid plan. 42 U.S.C. 1396a(a)(5); 42 C.F.R. 431.10. 21. Respondent DHCS must utilize methods of administration necessary for the proper and effective operation of the Medi-Cal program. 42 U.S.C. 1396a(a)(4). 22. Respondent DHCS must ensure that all individuals wishing to make application for [Medi-Cal] have opportunity to do so and that Medi-Cal benefits be furnished to all eligible individuals with reasonable promptness. 42 U.S.C. 1396a(a)(8); 22 C.C.R. 50177. 23. Respondent DHCS is responsible for determining eligibility for all individuals applying for or receiving benefits. 42 C.F.R. 431.10(b)(3). Although Respondent DHCS is permitted to delegate certain eligibility processing functions to other governmental agencies, it must ensure that the delegated agency complies with all relevant Federal and State law, regulations M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 6 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF and policies, including, but not limited to, those related to the eligibility criteria. 42 C.F.R. 431.10(c)(3)(i)(A). 24. This limited delegation does not relieve Respondent DHCS of its duty to ensure that eligibility determinations comply with all applicable laws. Specifically, Respondent DHCS must exercise appropriate oversight over the eligibility determinations made by the delegated agency and institute corrective action as needed. 42 C.F.R. 431.10(c)(3)(ii). 25. Respondent DHCS has chosen to delegate the task of making individual eligibility determinations to the county welfare departments in each of the 58 California counties. 22 C.C.R. 50004(c). 26. Additionally, Respondent DHCS has delegated responsibility for the IHSS program, a Medi-Cal covered benefit, to Respondent CDSS. California Medicaid State Pan Amendment No. 13-0024-MM4 (Effective Date: October 1, 2013). 27. Respondent DHCS retains the ultimate authority to supervise the Medi-Cal program to ensure compliance with state and federal law or to develop or issue policies, rules, and regulations on program matters. 42 C.F.R. 431.10(c)(3)(i)(A), 431.10(e). Respondent DHCS must ensure that the Medi-Cal program is continuously in operation in all local offices and agencies through issuing policies and instructions, systematic planned examination and evaluation of operations in local offices by state staff who make regular visits, and other reports and controls. 42 C.F.R. 431.50(b)(3). 28. Under state law, DHCS Respondents must administer the Medi-Cal program promptly and humanely. Welf. & Inst. Code 10000. They must also secure all aid to which an individual is entitled without discrimination on account of any characteristic listed or defined by law. Id. 10500. Medi-Cal & Constitutional Due Process Requirements 29. Medi-Cal applicants and beneficiaries, including IHSS program applicants, are entitled to due process. U.S. Const. amend. XIV; Cal. Const., Art. I, 7, 15. 30. Recipients and applicants for public benefits, including the Medi-Cal program and Medi-Cal services like IHSS, have rights to written notice and an opportunity for a hearing before M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 7 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF coverage of services can be denied, suspended, reduced, or terminated. 42 U.S.C. 1396a(a)(3); Goldberg v. Kelly, 397 U.S. 254 (1970); 42 C.F.R. 431.200-250. 31. Likewise, state law mandates that [Medi-Cal] applicants or beneficiaries shall have the right to a state hearing if dissatisfied with any action or inaction of … the Department of Health [Care] Services … relating to Medi-Cal eligibility or benefits. 22 C.C.R. 50951(a); Welf. & Inst. Code 10950; 42 C.F.R. 431.220(b). 32. Medi-Cal and IHSS applicants and beneficiaries are entitled to written notice of their right to a fair hearing to contest any action or inaction by DHCS Respondents to approve, deny, discontinue, or change the eligibility status for Medi-Cal or a share of cost. Id. at 50179(a), (c)(4). 33. At least ten days before termination, suspension, or reduction of Medi-Cal eligibility or covered services, written notice must be mailed to Medi-Cal beneficiaries. 22 C.C.R. 50179(d). Such notice must include a statement of the action the State intends to take; the reasons and legal authorities that support the intended action; and an explanation of the individual’s right and the procedures to request an administrative hearing. 22 C.C.R. 50179(c). Medi-Cal Eligibility Determinations 34. Respondent DHCS shall furnish Medi-Cal benefits with reasonable promptness to all eligible individuals. 42 U.S.C. 1396a(a)(8). 35. An application for Medi-Cal under any program is an application for Medi-Cal under all programs for which the person may be eligible. 22 C.C.R. 50153(a). A person may choose to have their application processed under any program for which they are eligible even if it is not the most advantageous. 22 C.C.R. 50153(c). 36. Erroneously denied applications, whether determined a county welfare department or by a fair hearing decision, must be rescinded. 22 C.C.R. 50182. This is known as a corrective action. Medi-Cal eligibility that results from corrective action taken on a denied application shall be approved based on the date of the application that was denied. Id. 37. Individuals who have their Medi-Cal eligibility discontinued must be evaluated by the county department to determine if Medi-Cal eligibility exists under any other program. 22 C.C.R. 50183. The county department must transfer the person to the appropriate Medi-Cal M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 8 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF program and determine his eligibility under that program. Id. A new application is not required. Id. 38. Individuals who have their Medi-Cal eligibility wrongly determined may require other corrective actions to make them whole. For example, Medi-Cal eligibility is a prerequisite for IHSS eligibility, and the IHSS program requires a separate application process and eligibility determination. Therefore, correcting Medi-Cal eligibility is the necessary antecedent to addressing an erroneous IHSS eligibility determination. 39. Individuals whose Medi-Cal eligibility was wrongly determined may have incurred medical expenses for services that should have been covered by the Medi-Cal program. The Medi- Cal program is required to reimburse these individuals for Medi-Cal covered services that were incurred as a result of an erroneous Medi-Cal determination. Welf. & Inst.Code 14019.3; Conlan v. Bonta, 102 Cal. App. 4th 745 (2002); 42 C.F.R. 431.246. 40. Individuals may be financially eligible for Medi-Cal if they qualify as categorically needy or medically needy. People who are categorically needy are generally persons who receive cash assistance to meet basic needs or who qualify under other categories set forth in federal and state law. Categorically needy people receive free Medi-Cal, meaning that they do not generally need to financially contribute to the cost of their care for covered services. 41. Medically needy recipients are otherwise eligible for Medi-Cal, but are required to pay a share of the cost toward their medical treatment if their income exceeds the allowed amount. Welf. & Inst. Code 14005.7, 14005.9; 22 C.C.R. 50651-50660. This share of cost is the amount that they must spend out-of-pocket on medical care before Medi-Cal will pay for any covered service. 42. In 2018, married Medi-Cal beneficiaries in California with more than $1,664 of net monthly income are subject to payment of a share of the cost for their care. The State’s calculation requires that married couples with net monthly income above $1,664 pay all income above $934 each month toward their health care costs before Medi-Cal will pay for any covered services. M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 9 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Medi-Cal Eligibility & the Institutional Alternatives: Home & Community-Based Services 43. For Medi-Cal eligible beneficiaries, the Medi-Cal program is required to cover certain medical services. 42 U.S.C. 1396d(a)(4)(A); Welf. & Inst. Code 14132.20, 14133.12, 14132.99, 14132.97, 14132.92, 14132.925, 14132.93. Certain covered services included in California’s Medicaid State Plan must be offered statewide, without any limits on the number of qualified people receiving those services. Services made available to beneficiaries may not be less in amount, duration, or scope than those services made available to any other individuals. 42 U.S.C. 1396a(a)(10)(B)(i); 42 C.F.R. 440.240(a), (b). In addition, services made available to any individuals in a categorically needy or medically needy group must be equal in amount, duration, and scope for all individuals within the group. 42 U.S.C. 1306a(a)(10)(B)(ii); 42 C.F.R. 440.240(b). Respondent DHCS must provide Medi-Cal services statewide, including in every county. 42 U.S.C. 1396a(a)(1); 42 C.F.R. 431.50(b). 44. The Medi-Cal program covers a number of home and community-based services programs as an alternative to institutional long-term care. Some of the home and community-based services programs are offered to any Medi-Cal recipient who is eligible to receive the service as described above. Other home and community-based programs are offered through more restricted waiver programs, which can be limited in scope, enrollment, and geography. 45. The purpose of these Medi-Cal home and community-based services programs is to enable low-income seniors and people with disabilities to receive the medical and personal care they need while living in their homes rather than in more expensive and less desirable institutional settings. 46. Respondent DHCS delivers home and community-based services programs as a Medi-Cal benefit through the state’s Medi-Cal State Plan, Medicaid Act section 1915(c) waivers, section 1915(i) or (k) state plan benefits, and section 1115 waivers. 47. The IHSS program is the largest Medi-Cal home and community-based services program in California. Established in 1973, IHSS ensures that eligible individuals who are elderly, M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 10 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF blind or disabled receive the home care services they need to remain safely in their homes. See Welf. & Inst. Code 12300, 14132.95, 14132.951. 48. The IHSS program provides attendant care services to Medi-Cal beneficiaries, which may not be less in amount, duration, or scope than those services made available to any other individuals. In other words, IHSS must be made available to any qualifying person, without an enrollment cap or a waiting list. At present, the IHSS program enables more than 550,000 people with disabilities in California to live at home and in their community. It is a critical piece of Medi- Cal’s continuum of services for those who need long-term care. 49. California covers 41% of people in the IHSS program through the Community First Choice Option ( IHSS-Community First Choice Option ) which is a section 1915(k) state plan option. Medi-Cal beneficiaries who are enrolled in IHSS-Community First Choice Option are entitled to receive a wide variety of needed services in their own homes. Such services include meal preparation and cleanup, transportation to and from medical appointments, domestic and related services, paramedical services, protective supervision, and personal care services. 50. A married individual who is eligible for the IHSS-Community First Choice Option program is considered an institutional spouse under the Affordable Care Act’s definitional change and is entitled to have the spousal impoverishment protection methodology applied to his or her Medi-Cal eligibility determination. 51. In addition to IHSS, there are several other Medi-Cal home and community-based services programs for which potentially eligible individuals could qualify. These include benefits delivered through a federal Medicaid waiver under the authority of sections 1915(c) and 1115 of the Medicaid Act. All waivers limit the number of enrollees. These programs include the Home and Community-Based Alternatives Waiver, the Multi-purpose Senior Services Program, the Assisted Living Waiver, and Community Based Adult Services program. Waivers have a cap on enrollment, which has created significant waiting lists for some people who need home and community-based services. For example, on information and belief, the Home and Community- Based Alternatives Waiver has a waitlist of approximately 2,700 people. M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 11 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 52. A married individual who is eligible for, but not enrolled in, a qualifying home and community-based services program (i.e., a waitlisted individual) is considered an institutional spouse under the Affordable Care Act’s definitional change and is entitled to have the spousal impoverishment protection methodology applied to their Medi-Cal eligibility determination. A waitlisted individual approved for Medi-Cal pursuant to the expanded spousal impoverishment protection is entitled to all covered Medi-Cal benefits, including IHSS, even as they wait for acceptance into a limited waiver slot. Federal and State Anti-Discrimination Laws 53. Section 1557 of the ACA also expressly incorporated existing anti-discrimination laws and applied them to federally funded health programs, such as Medi-Cal. 42 U.S.C. 18116. Thus, Respondents are prohibited from excluding from participation in, denying the benefits of, or subjecting any applicant or beneficiary to discrimination on the basis of race, color, national origin, sex, age, or disability. Id. 54. The ACA anti-discrimination provisions supplement existing protections such as the Americans with Disabilities Act (ADA). In enacting the ADA, Congress found that [i]ndividuals with disabilities continually encounter various forms of discrimination, including segregation 42 U.S.C. 12101(a)(5). Title II of the ADA provides that no qualified individual with a disability shall, by reason of disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity or be subjected to discrimination by such entity. Id. at 12132. 55. The United States Supreme Court in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), held that the unnecessary institutionalization of individuals with disabilities is a form of discrimination under Title II of the ADA. In doing so, the Court interpreted the ADA’s integration mandate as requiring persons with disabilities to be served in the community when: (1) the state determines that community-based treatment is appropriate; (2) the individual does not oppose community placement; and, (3) community placement can be reasonably accommodated. Olmstead, 527 U.S. at 607. M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 12 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 56. Regulations implementing Title II of the ADA provide: A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. 28 C.F.R. 35.130(d) (1991). 57. Section 504 of the Rehabilitation Act of 1973, on which the ADA is modeled, sets forth similar protections against discrimination by recipients of federal funds, such as Respondents herein. 29 U.S.C. 794-794a. These protections include the prohibition against unnecessary segregation. Regulations implementing Section 504 require that a public entity administer its services, programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. 28 C.F.R. 41.51(d). 58. Regulations implementing Title II of the ADA and Section 504 also provide: a public entity may not, directly or through contractual or other arrangements, utilize criteria or other methods of administration: (i) that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; [or] (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the entity’s program with respect to individuals with disabilities. . . . 28 C.F.R. 35.130(b)(3); 28 C.F.R. 41.51(b)(3)(i); 45 C.F.R. 84.4(b)(4). 59. ADA regulations further provide: A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered. 28 C.F.R. 35.130(b)(8). 60. Similar to the ADA, California’s anti-discrimination statute prohibits discriminatory actions by the state and state-funded agencies or departments, and provides civil enforcement rights for violations. Gov’t. Code 11135 11139. Spousal Impoverishment Protections History of the Spousal Impoverishment Protections 61. Prior to 1988, when a state determined the Medicaid eligibility of a married person for purposes of obtaining Medicaid benefits, a state generally considered the income and assets of M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 13 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF either spouse as being available to the Medicaid applicant. This is known as spousal deeming. When one spouse became disabled and required institutional care in a nursing home or other Medicaid-funded facility, assets held jointly by the spouse receiving care in an institution (the institutionalized spouse ) and the spouse living in the community (the community spouse ) were deemed fully available to the applicant in determining Medicaid eligibility. 62. This practice of spousal deeming impoverished many community spouses who spent all of the married couple’s income and assets paying for the institutionalized spouse’s care until their assets were exhausted and the institutionalized spouse qualified for Medicaid. 63. In 1988, Congress sought to remedy this pauperization problem with regard to nursing facility and institutional settings by enacting the Medicaid Catastrophic Coverage Act. 102 Stat. 754, 42 U.S.C. 1396r-5(b)(1). The Medicaid Catastrophic Coverage Act imposed a protection against spousal impoverishment by ensuring that the community spouse would be able to keep a sufficient but not excessive amount of income and resources without disqualifying the institutionalized spouse from Medicaid. 64. This change helped many couples, but it also created a strong financial incentive for people to seek care in a nursing facility. Even if an individual could remain safely in their home with home and community-based services, the Medicaid Catastrophic Coverage Act’s protections were limited only to the spouses of people receiving care in a hospital or nursing facility (i.e., an institutional setting), but not those receiving long-term care while living at home.2 Affordable Care Act Expansion of Spousal Impoverishment Protection 65. In 2010, Congress addressed this problem by requiring all states, including California, to evaluate Medicaid eligibility using the spousal impoverishment protection methodology for people who meet the nursing facility level of care standard, but were eligible for home and community-based services. Pub. L. No. 111-148. The Affordable Care Act amended the statutory definition of an institutionalized spouse. See 42 U.S.C. 1396r-5(h)(1)(A) 2 The Medicaid Catastrophic Coverage Act permitted states to offer spousal impoverishment protections to eligible individuals enrolled in a 1915(c) waiver. 42 U.S.C 1396r-5(h)(1)(A). Prior to the ACA’s expansion, California’s 1915(c) waivers used spousal impoverishment rules for enrolled, but not waitlisted, individuals. M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 14 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (referring to services described in 42 U.S.C. 1396a(a)(10)(A)(ii)(VI)). Under the expanded protection, a spouse with a disability no longer must submit to institutionalization or obtain a scarce waiver slot to receive the care he or she needs. Rather, if the spouse with a disability meets the criteria for a broad range of home and community-based service programs, the couple may avail themselves of the expanded protection, thereby allowing the disabled spouse to remain at home while receiving needed medical care and services. 66. The expanded spousal impoverishment protection is not itself a Medi-Cal program or service. Rather it is an income- and asset-counting methodology used to determine Medi-Cal eligibility for married individuals eligible who need home and community-based services. 67. The definitional change expanding the spousal impoverishment protection became effective on January 1, 2014. See Pub. L. No. 111-148, 2404. FACTUAL ALLEGATIONS DHCS Respondents’ Actions and Inactions Regarding the Expanded Spousal Impoverishment Protection from January 1, 2014 through Present 68. On May 7, 2015, CMS issued guidance on the spousal impoverishment protection detailing how states would apply the statute in making Medicaid eligibility determinations. CMS, SMD #15-001 ACA #32, Affordable Care Act’s Amendments to the Spousal Impoverishment Statute (D.H.H.S. 2015) ( CMS Guidance ). 69. The CMS Guidance explained that states are required to apply the spousal impoverishment rule when determining Medicaid eligibility for married Medicaid applicants who meet an institutional level of care. This includes applicants who are medically needy and must pay a share of cost in order to receive services. CMS made clear that the spousal impoverishment protection also applies to applicants who are on waiting lists for home and community-based service waivers. 70. The CMS Guidance clarified that states must determine need for home and community-based services when a married applicant requests such services. States are directed to establish a method (or methods) for applicants to request home and community-based services that will trigger an eligibility determination based on the spousal impoverishment methodology. M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 15 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF According to the CMS Guidance, it is the responsibility of the state, not the applicant, to determine which Medicaid home and community-based service program the applicant is eligible for, based on the eligibility criteria for each program. 71. Finally, the CMS Guidance reminded states that the expanded definition of institutionalized spouse went into effect on January 1, 2014, and it expressly directed the states to begin work on conforming their eligibility practices for married individuals potentially in need of HCBS as soon as possible and that this change affects initial eligibility determinations and in some circumstances redeterminations of eligibility. (Emphasis added). 72. From January 1, 2014, the effective date of the expanded spousal impoverishment protection until after the filing of the instant lawsuit on July 6, 2017, DHCS Respondents failed to even inform the county welfare departments that a new group of individuals were potentially eligible for Medi-Cal based on the expanded spousal impoverishment protection by either issuing guidance to them, or otherwise directing them to process Medi-Cal applications in accordance with the expanded spousal impoverishment protections. Despite the fact that the ACA was enacted in 2010, the definitional change did not become effective until 2014, and the CMS Guidance was issued in 2015. Moreover, DHCS Respondents began to draft statewide guidance to regarding the expanded spousal protection in 2015, but it did not issue the guidance until after this lawsuit was filed in July 2017. 73. On July 19, 2017, DHCS Respondents released statewide guidance in the form of All County Welfare Directors Letter ( ACWDL ) 17-25, which announced the expanded definition of institutionalized spouse as required by the ACA. 74. The release of ACWDL 17-25, however, did not result in all or even most potentially eligible individuals receiving eligibility determinations based on the expanded spousal impoverishment protection. It also failed to cure a number of problems created as a result of DHCS Respondents’ delayed actions and continued inactions regarding the expanded spousal impoverishment protection. 75. After releasing ACWDL 17-25, DHCS Respondents did not disseminate any additional statewide guidance from late July 2017 to early August 2018. M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 16 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 76. DHCS Respondents convened an SI Work Group of county policy staff to respond to counties’ questions and concerns regarding the application of the expanded spousal impoverishment protection in eligibility determinations. However, the SI Work Group included representatives from less than 10 California counties, and DHCS Respondents did not officially or systematically release information to the other counties about the issues discussed and developed in the SI Work Group meetings. 77. For more than a year, from late July 2017 to mid-August 2018,DHCS Respondents did not disseminate any additional statewide guidance. This meant that counties were not able to consistently ensure that potentially eligible individuals received proper Medi-Cal eligibility determinations. 78. On August 21, 2018, more than a year after ACWDL 17-25 and four and a half years after the expanded spousal impoverishment went into effect, DHCS Respondents issued ACWDL 18-19, which provided supplemental guidance to the counties regarding the expanded spousal impoverishment protection. 79. Even with the issuance of ACWDLs 17-25 and 18-19, DHCS Respondents’ belated efforts are still inadequate to satisfy their ministerial duties as the single state agency to provide Medi-Cal benefits and services to eligible beneficiaries and applicants with reasonable promptness and in a comparable and consistent way statewide. 80. Specifically, the policy guidance issued by DHCS Respondents to date is silent or insufficient in five key aspects of implementation: (1) the identification of all potentially eligible individuals statewide; (2) the notification of all potentially eligible individuals statewide of the expanded spousal impoverishment protection so that they have a reasonable opportunity to apply or seek a correct eligibility determination; (3) the supervision of the counties and the enforcement of the expanded spousal impoverishment protection to ensure all potentially eligible individuals statewide receive correct and prompt Medi-Cal eligibility determinations; (4) the creation of a process to determine retroactive eligibility for IHSS; and (5) the provision of retroactive reimbursement or payment for Medi-Cal covered expenses that would have been covered if Medi- Cal eligibility had been properly determined initially. M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 17 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF DHCS Respondents’ Failure to Identify Potentially Eligible Individuals 81. DHCS Respondents have failed to identify all potentially eligible individuals entitled to Medi-Cal eligibility determinations based on the expanded spousal impoverishment protection. 82. Specifically, Respondent DHCS has breached its ministerial duty to identify all potentially eligible individuals, such as those who: a) Are currently enrolled in IHSS-Community First Choice Option and have a Medi- Cal share of cost; b) Are currently enrolled in Medi-Cal with a share of cost who are in need or have a pending request for IHSS or another home and community-based services program; c) Were enrolled in Medi-Cal, but whose Medi-Cal was discontinued; d) Were denied Medi-Cal eligibility due to excess property; e) Are institutionalized, but could live in the community with the provision of Medi- Cal home and community-based services. 83. In early 2018, DHCS Respondents did attempt to identify individuals who were currently on a Medi-Cal waiver waiting list who might be potentially impacted by the definitional change. Based on this attempt, DHCS Respondents provided counties with an estimated number of individuals on the waiver waiting lists in their county. However, DHCS Respondents did not provide a list of individual names of waiver waitlisted individuals. Without the names, counties were unable to ensure all potentially eligible individuals received a correct eligibility determination. 84. To date, DHCS Respondents have not compiled or provided a complete list of potentially impacted individuals to counties. To the extent DHCS Respondents believe the counties can compile their own lists, they have not provided the counties with deadlines for identifying potentially eligible individuals and have not taken any steps to supervise the counties in these efforts. DHCS Respondents’ Failure to Notify Potentially Eligible Individuals 85. Despite direction in the 2015 CMS Guidance that States must establish methods for applicants to request home and community-based services that will trigger application of expanded M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 18 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF spousal impoverishment protections, DHCS Respondents have failed to notify all potentially impacted individuals of the definitional change. This includes a failure to notify individuals erroneously denied or discontinued from Medi-Cal and those assessed an incorrect share of cost for their Medi-Cal. Instead, ACWDLs 17-25 and 18-19 put the onus on applicants or beneficiaries to ask for an eligibility determination using a methodology that they were never informed exists. 86. Although DHCS Respondents developed one informational letter about the expanded spousal impoverishment protection, DHCS Respondents only sent that letter to individuals on the Medi-Cal waiver waitlists at that particular point in time. Medi-Cal Eligibility Division Information Letter ( MEDIL ) No. 18-03. On information and belief, DHCS Respondents have not notified all individuals who were on a waiver waitlist at any time between January 1, 2014 and the present. 87. DHCS Respondents did not send the informational letter to potentially eligible individuals who never appeared on a waiver waitlist such as those who: a) Are currently enrolled in IHSS-Community First Choice Option and have a Medi- Cal share of cost; b) Are currently enrolled in Medi-Cal with a share of cost who are in need or have a pending request for IHSS or another home and community-based services program; c) Were enrolled in Medi-Cal, but whose Medi-Cal was discontinued; d) Were denied Medi-Cal eligibility due to excess property; e) Are institutionalized, but could live in the community with the provision of Medi- Cal home and community-based services. 88. Without notification, it is impossible for DHCS Respondents to comply with the CMS Guidance to ensure that all potentially eligible individuals have a method of triggering the application of these rules. For this reason, ACWDLs 17-25 and 18-19 and MEDIL 18-03 fall short of the requirements laid out by the CMS Guidance for administration of the expanded spousal impoverishment protection. 89. Additionally, DHCS Respondents’ actions fall short of the promptness requirements in both 42 U.S.C. 1396a(a)(8) and Welf. & Inst. 10000. M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 19 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 90. Furthermore, DHCS Respondents’ informational letter to waiver waitlisted individuals is a constitutionally deficient notice because it does not explain that a potentially eligible individual has hearing rights and the right to retroactive coverage. DHCS Respondents’ Failure to Supervise and Enforce the Expanded Spousal Impoverishment Protection 91. Respondent DHCS’s duties as the single state agency extend beyond issuing two policy letters and sending an informational notice to a small portion of potentially eligible individuals. DHCS Respondents must ensure that the Medi-Cal program is continuously in operation in all local offices and agencies by issuing policies and instructions, conducting systematic planned examination and evaluation of operations in local offices by state staff who make regular visits, and implementing other reports and controls. 42 C.F.R. 431.50(b)(3). 92. DHCS Respondents have abrogated their duty to ensure that the expanded spousal impoverishment protection is being applied consistently and comparably across the state. DHCS Respondents have not taken the requisite steps to ensure that Medi-Cal eligibility determinations based on the expanded spousal impoverishment protection are in operation in all local offices. Nor have they supervised the counties to ensure that eligibility determinations are being made correctly and promptly. 93. At all times material herein, DHCS Respondents have admittedly failed to monitor whether any county is following ACWDLs 17-25 or 18-19. DHCS Respondents also did not impose deadlines for implementation of the policy guidance related to the expanded spousal impoverishment protection. Nor did they systematically track issues as counties raised them. DHCS Respondents did not even require counties to acknowledge whether they received ACWDLs 17-25 and 18-19. 94. Instead, DHCS Respondents passively waited for counties to raise questions, despite the fact that not hearing from a county does not mean that the policy was implemented properly. DHCS Respondents do not review a county’s internal guidance interpreting Respondent DHCS’s policy guidance unless a county specifically requests it. M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 20 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 95. While DHCS Respondents conduct reviews of a sample of each county’s Medi-Cal cases as part of a general case review process, DHCS Respondents have not conducted and will not conduct a case review specific to the expanded spousal impoverishment protection. Likewise, DHCS Respondents have not conducted and will not conduct any quality control review of county cases involving the spousal impoverishment protection. 96. Furthermore, although DHCS Respondents stated in ACWDL 18-19 that the county computer systems should be updated to process cases using the expanded spousal impoverishment protection, they did not explain when or how that should happen. As a result, none of the county computer eligibility and case management systems have programmed the necessary eligibility rules or criteria. 97. On information and belief, the counties do not know when such programming will occur. As a result, a county currently must determine the Medi-Cal budget manually and enter a separate case comment to indicate that the spousal impoverishment methodology was applied in a particular case. In a system where Medi-Cal eligibility determinations are otherwise automated and processed through a computer, these manual calculations for expanded spousal impoverishment are burdensome and non-routine for county staff processing them. 98. Starting in August 2018, DHCS Respondents provided a handful of optional regional training on the expanded spousal impoverishment protection. Counties were not required to attend. DHCS Respondents took attendance at the trainings, but did not verify that all 58 counties attended a training. The spousal impoverishment portion of the training was less than two hours long. 99. DHCS Respondents’ issuance of written policy guidance and presenting optional regional trainings does not satisfy DHCS Respondents’ duty to conduct systematic planned examination and evaluation of operations in local offices. 100. Further, DHCS Respondents’ laissez faire approach to implementation has led to dramatically different outcomes based on geography. For example, representatives of the Los Angeles County Department of Public Social Services, which manages the largest population of individuals potentially impacted by the expanded spousal impoverishment protection in the State, M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 21 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF have regularly interacted with DHCS Respondents concerning the expanded spousal impoverishment protection. Los Angeles County participated in the SI Work Group, was proactive in raising questions to Respondent DHCS, and was among the first counties to issue their own internal guidance and conduct internal trainings. Despite this, Los Angeles County reports a number of areas where DHCS Respondents’ guidance is still insufficient, such as: (i) failure to direct when and how the county’s computer eligibility systems would be programmed with the expanded spousal impoverishment protection rules; (ii) the need for DHCS to provide lists of potentially eligible individuals; and (iii) instructions on how to deal with verification of eligibility going back for many years, among others. On information and belief, Los Angeles County has more than 3.9 million Medi-Cal beneficiaries, of whom more than 200,000 also receive IHSS. Los Angeles County is unable to identify how many cases were processed using the expanded spousal impoverishment methodology. 101. In contrast, representatives of the San Mateo County Human Services Agency did not engage in the SI Work Group, had limited interactions with DHCS Respondents regarding the expanded spousal impoverishment protection, and only released its internal expanded spousal impoverishment protection policy in November 2018. Yet, working in tandem with and responsive to local legal aid advocates, San Mateo County staff used the spousal impoverishment methodology on a few cases before DHCS Respondents issued their statewide guidance in July 2017. Thus, a small, select group of San Mateo County residents, who had representation from legal aid advocates, could access the expanded spousal impoverishment protection using only the 2015 CMS Guidance. On information and belief, San Mateo County has 145,000 enrolled Medi-Cal beneficiaries, of whom more than 4,600 also receive IHSS. However, in San Mateo County only approximately 10 individuals have been determined eligible for Medi-Cal using the expanded spousal impoverishment protection since January 1, 2014. 102. As yet another disparate example, representatives of the Tulare County Human Services Agency staff did not participate in the SI Work Group and did not reach out to DHCS Respondents with requests for clarification or assistance in implementing the expanded spousal impoverishment protection. On information and belief, Tulare County has 245,000 enrolled Medi- M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 22 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Cal beneficiaries, approximately 4,100 receiving IHSS, and 506 waiver waitlist participants, but only six cases have been assessed and approved using the expanded spousal impoverishment protection since 2014. 103. Counties report that DHCS Respondents never told them to prioritize the expanded spousal impoverishment protection or ACWDLs 17-25 and 18-19 over other policy matters or workload issues. 104. None of the county case management systems have the expanded spousal impoverishment protection budgeting rules programmed into their system. 105. Some counties report having an insufficient understanding and guidance as to how to assess retroactive IHSS eligibility. 106. Several counties also report having an insufficient understanding and guidance as to how to calculate and verify reimbursements owed for Medi-Cal covered services, particularly IHSS. 107. DHCS Respondents’ utter failure of its ministerial duty to supervise the counties in applying the complicated expanded spousal impoverishment protection has led to a predictable result: the amount, duration, and scope of Medi-Cal benefits and services furnished to potentially eligible individuals is not comparable from county to county. 108. Furthermore, DHCS Respondents’ lack of supervision and oversight has resulted in dramatically different access to the expanded spousal impoverishment protection based on a potentially eligible individual’s geographic location. This is the opposite of the statewide consistency required by the Medicaid Act. 109. An estimated 5,000 individuals are on Medi-Cal waiver waitlists and 12,000 IHSS recipients have a share of cost. Thousands of other married individuals qualify for home and community-based services and are entitled to receive these services under Medi-Cal but have been wrongfully denied or discontinued from Medi-Cal because of DHCS Respondents’ actions and omissions in administering the expanded spousal impoverishment protection in California. These individuals are placed at risk of unnecessary institutionalization and impoverishment, as a result of DHCS Respondents’ failure to properly determine their Medi-Cal eligibility under the mandatory M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 23 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF expanded spousal impoverishment protection and have no plain, speedy, or adequate remedy at law. DHCS Respondents’ Failure to Provide Retroactive IHSS Eligibility, and Provider Payment &Reimbursement 110. ACWDLs 17-25 and 18-19 provide no guidance on how counties should process retroactive IHSS eligibility determinations and incomplete and conflicting guidance on reimbursement of attendant care for individuals who can show retroactive eligibility for IHSS. ACWDLs 17-25 and 18-19 require retroactive assessments of Medi-Cal eligibility, and retroactive reimbursement of Medi-Cal covered expenses (through a statewide process, known as the Conlan process) for individuals who would have been eligible for Medi-Cal had the expanded spousal impoverishment protection been implemented in 2014. However, these ACWDLs fail to provide procedures to determine retroactive IHSS hours, retroactive IHSS eligibility dates and retroactive payments to IHSS providers who were unpaid for their work. 111. Although a substantial number of individuals have not had their Medi-Cal eligibility re-determined based on the expanded spousal impoverishment provision, DHCS Respondents at least have a process in place to determine Medi-Cal eligibility retroactively. This means that the counties also have to the ability to determine retroactive Medi-Cal eligibility. 112. In contrast, all Respondents have failed to establish a procedure for retroactively determining IHSS eligibility in the context of the expanded spousal impoverishment provision. Many people eligible for Medi-Cal under the expanded spousal impoverishment protection may have been eligible for IHSS because it is a statewide Medi-Cal covered benefit for individuals with disabilities who require in-home attendant care. 113. However, Petitioners and other potentially eligible individuals were unable to access the IHSS program because Medi-Cal eligibility is a condition precedent to IHSS eligibility. 114. County welfare departments do not have a process for determining IHSS retroactively in the context of the expanded spousal impoverishment protection because DHCS Respondents have not created that process despite acknowledging in their guidance that many M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 24 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF potentially eligible individuals assessed retroactively for Medi-Cal may also have been entitled to IHSS as a covered Medi-Cal benefit for individuals with disabilities. 115. Relatedly, individuals eligible for IHSS who paid out of pocket for home and community-based care are entitled to reimbursement through the Conlan process, but AWCDL 18- 19 states that only services provided by an IHSS enrolled provider are reimbursable retroactively to January 1, 2014. However, IHSS providers cannot be enrolled into the program retroactively and most people providing attendant care services do not enroll as IHSS providers unless and until they are working for an IHSS-eligible recipient. 116. DHCS Respondents have effectively created an illusory benefit. A potentially eligible individual could be eligible retroactively for Medi-Cal and IHSS, have unpaid wages or out of pocket expenses for attendant care, which should be a covered Medi-Cal expense, but cannot be made whole because DHCS Respondents have erected an insuperable barrier to reimbursement. DHCS Respondents’ Unlawful Denial of Petitioners’ Access To Medi-Cal Benefits Petitioner Patrick Kelley 117. Patrick Kelley is a 69-year-old veteran who lives with his wife, Melody Rogers, in Los Angeles, California. 118. Petitioner Kelley has primary progressive multiple sclerosis. First diagnosed almost 15 years ago, the disease has progressed, and Petitioner Kelley now has spastic quadriparesis and can only use his left hand for simple, limited motor tasks. 119. Because of his condition, Petitioner Kelley is eligible for home and community- based services at a nursing home level of care. 120. Although Petitioner Kelley’s condition is severe enough to require a nursing home level of care, Petitioner Kelley and Ms. Rogers do not want Petitioner Kelley to be institutionalized; they want to remain together in their home and community. 121. In May 2014, Petitioner Kelley applied for the Nursing Facility\/Acute Hospital Waiver, now called the Home and Community Based Alternatives Waiver, to obtain long-term services available to eligible Medi-Cal beneficiaries. In January 2019, Mr. Kelley was approved for the HCBA waiver. M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 25 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 122. Petitioner Kelley and his wife, Ms. Rogers, live primarily on a fixed income of pensions and Social Security retirement income. Ms. Rogers works as a licensed real estate agent, which provides her with an irregular source of income. Ms. Rogers’s ability to work is severely limited by her caregiving responsibilities to Petitioner Kelley. 123. In September 2016, Petitioner Kelley applied for Medi-Cal. 124. On February 27, 2017, the Los Angeles County Department of Public Social Services denied Petitioner Kelley’s Medi-Cal application on the grounds that he and his wife together had savings that exceeded the Medi-Cal property limit of $3,000. 125. The Los Angeles County Department of Public Social Services did not apply the expanded spousal impoverishment protection to Petitioner Kelley’s Medi-Cal eligibility determination because DHCS Respondents had not instructed counties to do so. Had the expanded spousal impoverishment protection been timely implemented, Petitioner Kelley would have qualified for Medi-Cal as of the date of his application. 126. As a direct result of DHCS Respondents’ failure to implement expanded spousal impoverishment protections, Petitioner Kelley was wrongly denied Medi-Cal and he could not be assessed for IHSS-Community First Choice Option program. 127. Had Petitioner Kelley been assessed for IHSS-Community First Choice Option program in September 2016, he would have been found eligible for it. 128. Instead, starting in September 2016, Petitioner Kelley and Ms. Rogers paid approximately $4,000 per month for caregivers to stay with Petitioner Kelley so that he could live safely at home in the community, and with his wife. Ms. Rogers also provided a significant amount of in-home care for Petitioner Kelley. 129. On March 16, 2017, an advocate from Bet Tzedek Legal Services, contacted DHCS Respondents regarding Petitioner Kelley. Bet Tzedek Legal Services requested that DHCS Respondents require the Los Angeles County Department of Public Social Services to process Petitioner Kelley’s Medi-Cal application using the expanded spousal impoverishment protection because Petitioner Kelley was depleting his resources by paying for private in-home care. DHCS Respondents failed to respond. M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 26 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 130. On May 23, 2017, Petitioner Kelley appealed the Los Angeles County Department of Public Social Services’ February 27, 2017 Medi-Cal denial. 131. On July 11, 2017, a CDSS Administrative Law Judge ordered the Los Angeles County Department of Public Social Services to rescind the Medi-Cal denial and to determine Petitioner Kelley’s Medi-Cal eligibility using the expanded spousal impoverishment methodology. 132. In November 2017, the Los Angeles County Department of Public Social Services complied with the order, which resulted in Petitioner Kelley becoming Medi-Cal eligible retroactive to January 1, 2014. 133. In November 2017, Petitioner Kelley applied for IHSS and was assessed and awarded 221 hours and 59 minutes of IHSS-Community First Choice Option, but only effective beginning November 15, 2017, the date of his application for IHSS. 134. On January 12, 2018, Petitioner Kelley filed for hearing requesting (a) retroactive IHSS benefits from January 1, 2014 to November 15, 2017, and (b) reimbursement for home-based caregiver expenses paid from January 1, 2014 to November 15, 2017. 135. On July 26, 2018, an Administrative Law Judge issued a decision, adopted by both Respondents DHCS and CDSS, finding Petitioner Kelley eligible for IHSS benefits from January 1, 2014 to November 15, 2017 based on the linkage between his eligibility dates for the waiver program, Medi-Cal, and IHSS. In February 2019, the Los Angeles County Department of Public Social Services paid Mr. Kelley $20,612 for retroactive IHSS benefits for the period of January 1, 2014 to November 15, 2017 in compliance with the July 26, 2018 Administrative Law Judge decision. 136. The Los Angeles County Department of Public Social Services has requested a rehearing of that decision and Petitioner is awaiting a response from CDSS Respondents regarding the granting of a rehearing. Petitioner Matthew Reed 137. Matthew Reed is 63-years-old and lives with his wife, Vicki Reed, and 24-year-old son, Desmond Reed, in Los Angeles, California. M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 27 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 138. Petitioner Reed has been diagnosed with multiple sclerosis. Approximately 17 years ago, Petitioner Reed was diagnosed with Bell’s Palsy and also had a stroke. Following his stroke, Petitioner Reed experienced paralysis in his left hand as well as vascular dementia, which has resulted in impaired memory, confusion, and trouble with judgment, concentrating, reasoning, and planning. Petitioner Reed also has mood swings, as well as physical impairments, including trouble with walking and balance. 139. Because of his conditions, Petitioner Reed is eligible for home and community- based services at a nursing home level of care. 140. Although Petitioner Reed’s conditions are severe enough to require a nursing home level of care, Petitioner Reed and his family do not want Petitioner Reed to be institutionalized; they want to remain together at home in their community. 141. In 2014, Petitioner Reed was eligible for Medi-Cal with a share of cost and for the IHSS program. However, due to Petitioner Reed’s high monthly share of cost, he was unable to utilize IHSS because it was prohibitively expensive. He voluntarily discontinued his IHSS in late 2014. 142. Petitioner Reed, through his wife, applied for the Home and Community Based Alternative Waiver program on July 22, 2016. He was placed on the waiting list. As of this filing, Petitioner Reed is still on the waiting list. 143. On her husband’s behalf, Mrs. Reed submitted a Medi-Cal redetermination form on October 27, 2016. Los Angeles County Department of Public Social Services, following DHCS Respondents’ rules determined that Petitioner Reed was eligible for Medi-Cal, but with an unaffordable share of cost of $1,509 per month effective January 1, 2017. Petitioner Reed receives Social Security Disability benefits, and Mrs. Reed is employed as a security guard. Petitioner Reed’s monthly share of cost amounted to nearly 30% of their monthly income. 144. The Los Angeles County Department of Public Social Services did not apply the expanded spousal impoverishment rules to Petitioner Reed’s Medi-Cal case because DHCS Respondents had not yet instructed counties to do so. Had expanded spousal impoverishment been M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 28 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF timely implemented, Petitioner Reed would have qualified for Medi-Cal with a reduced or eliminated share of cost as far back as January 1, 2014. 145. Additionally, if Petitioner Reed had been determined eligible for Medi-Cal with a reduced or eliminated share of cost using the expanded spousal impoverishment protection, he would have had access to the IHSS program for free or at a reduced cost. Instead, because Petitioner Reed’s high share of cost, Petitioner’s wife and son provided in-home care to Petitioner Reed without compensation. 146. On May 5, 2017, an advocate from Bet Tzedek Legal Services requested that the Los Angeles County Department of Public Social Services re-determine Petitioner Reed’s Medi- Cal eligibility using the expanded spousal impoverishment protection because Petitioner Reed’s incorrect share of cost was preventing him from accessing IHSS. The Los Angeles County Department of Public Social Services Respondents failed to respond. 147. On May 11, 2017, Petitioner Reed applied for IHSS. 148. On June 15, 2017, Petitioner Reed appealed his Medi-Cal share of cost determination and sought retroactive Medi-Cal and IHSS benefits. 149. On July 20, 2017, Petitioner Reed received an IHSS notice approving him for 241 hours and 11 minutes monthly IHSS hours retroactive to May 11, 2017, the date of his most recent application for IHSS. 150. On or about August 8, 2017, Petitioner Reed and the Los Angeles County Department of Public Social Services entered into a Conditional Withdrawal for the Los Angeles County Department of Public Social Services to evaluate his eligibility for Medi-Cal utilizing expanded spousal impoverishment protections from August 2016 through April 2017. The Department of Public Social Services also agreed to reimburse Petitioner Reed for retroactive IHSS payments for August 2016 through April 2017, contingent upon its determination that Petitioner Reed was eligible for Medi-Cal benefits during this period. 151. On August 1, 2017, Petitioner Reed received a Notice of Action informing him that he was eligible for Medi-Cal without a share of cost effective July 1, 2016. The elimination of the M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 29 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF share of cost was based on the application of the expanded spousal impoverishment protection to his Medi-Cal eligibility determination. 152. On September 21, 2017, the Los Angeles County Department of Public Social Services informed Petitioner Reed that it was unable to process retroactive IHSS payments for August 2016 through April 2017 because there was no IHSS application made between the termination of IHSS in 2014 and his application on May 11, 2017. 153. Petitioner Reed appealed, arguing that his IHSS application and eligibility for IHSS benefits should be retroactive to the date of his Medi-Cal application in accordance with the California Department of Social Services’ ACL 07-11 (Feb. 20, 2007). 154. Petitioner Reed further argued that it was DHCS Respondents’ error that led to Petitioner Reed’s incorrect Medi-Cal eligibility determination that assigned him a prohibitively high share of cost, which materially affected his decision not to apply for IHSS in 2016. DHCS Respondents should be equitably estopped from denying Petitioner Reed retroactive eligibility for IHSS without a share of cost. DHCS Respondents were aware in 2014 and 2016 that they were required to apply the expanded spousal impoverishment protection to married individuals requiring a nursing home level of care, like Petitioner Reed. However, they failed to implement any part of expanded spousal impoverishment before July 2017. 155. Petitioner Reed did not know that he was eligible for Medi-Cal without a share of cost in either 2014 or 2016 because he reasonably relied on the Los Angeles County Department of Public Social Services’ determinations that assigned him a share of cost. Petitioner Reed relied on those determinations to his detriment to make medical decisions, including voluntarily discontinuing his IHSS and foregoing other medical care that would have been covered had his eligibility been correctly determined using the expanded spousal impoverishment protection. 156. The Administrative Law Judge’s decision, adopted by Respondent CDSS on August 20, 2018, upheld the Department of Public Social Services’ denial of IHSS eligibility retroactive to the date of his Medi-Cal application and denied Petitioner Reed’s request for equitable relief. This denial and the Administrative Law Judge’s ruling are a direct result of DHCS Respondents’ failure to create a process to award retroactive IHSS services back to the date of Medi-Cal application M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 30 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF DECLARATORY AND INJUNCTIVE RELIEF AND RIGHT OF ACTION 157. Due to their failure to fully and effectively implement the expanded spousal impoverishment protection, DHCS Respondents have caused thousands of potentially eligible individuals to be improperly denied Medi-Cal coverage or assessed an incorrect share of cost. DHCS Respondents’ piecemeal efforts to belatedly implement the expanded spousal impoverishment protection have resulted in five major breaches of their ministerial duties: (1) failure to identify all potentially eligible individuals statewide; (2) failure to notify all potentially eligible individuals statewide of the expanded spousal impoverishment protection so that they have a reasonable opportunity to apply or seek a correct eligibility determination; (3) failure to supervise the counties and to enforce the expanded spousal impoverishment protection to ensure all potentially eligible individuals statewide receive correct and prompt Medi-Cal eligibility determinations; (4) failure to create a process to determine retroactive eligibility for IHSS; and (5) failure to provide retroactive reimbursement for Medi-Cal covered expenses that would have been covered if Medi-Cal eligibility had been properly assessed initially. 158. Absent intervention by this Court, Petitioners and other potentially eligible individuals have suffered and will continue to suffer irreparable harm in that they will not receive a correct Medi-Cal eligibility determination and therefore, will not have access to the Medi-Cal services that they are eligible for, causing these individuals either to submit to institutionalization or become impoverished. Money damages cannot compensate for this harm. Petitioners request a judicial determination that DHCS Respondents must immediately implement the expanded spousal impoverishment protection pursuant to their responsibilities to administer the federal Medicaid program in California. 159. Petitioners contend that DHCS Respondents’ abovementioned actions violate federal law requiring implementation of the spousal impoverishment protection, state and federal anti-discrimination statutes, and Welfare and Institutions Code 10000 and 10500. DHCS Respondents contend otherwise. Declaratory relief is therefore necessary and appropriate to resolve this controversy. Accordingly, Petitioners seek a judicial declaration of the rights and duties of the respective parties. M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 31 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 160. Code of Civil Procedure 1085 confers a right of action to enforce the state and federal statutes cited in this petition. FIRST CAUSE OF ACTION (Against All Respondents) (Code of Civil Procedure 1094.5 Abuse of Discretion – Error of Law as to Petitioner Matthew Reed) 161. Petitioner Matthew Reed re-alleges and incorporates by reference each and every allegation contained in the above paragraphs as though fully set forth herein. 162. DHCS Respondents have a legal duty to make correct Medi-Cal eligibility determinations and to provide retroactive benefits to eligible beneficiaries. 163. CDSS Respondents have a legal duty to make correct IHSS eligibility determinations and to provide retroactive benefits to eligible beneficiaries. 164. The administrative decision challenged herein substantially affects a fundamental vested right of Petitioner Reed in the lawful administration of his Medi-Cal eligibility and related Medi-Cal covered services, such as IHSS; therefore, this Court should exercise independent judgment in reviewing the evidence. 165. CDSS Respondents’ final hearing decision constitutes a prejudicial abuse of discretion pursuant to Civ. Proc. Code Section 1094.5(b) because CDSS Respondents did not proceed in the manner required by law in that the administrative law judge misapplied the standard for equitable estoppel, despite Petitioner Reed having presented evidence sufficient to meet the elements required by Canfield v. Prod, 67 Cal. App. 3d 722, 730-32 (1977). 166. Under California law, a party asserting estoppel against a government actor must demonstrate that (1) the party to be estopped was apprised of the facts and (2) intended that his conduct be acted upon; (3) the party asserting estoppel was ignorant of the true state of facts, and (4) relied upon the conduct of the other party to his injury; and (5) the estoppel will not frustrate public policy and is required by justice and right. Canfield v. Prod, 67 Cal. App. 3d 722, 730-32 (1977). 167. Petitioner meets the first element because evidence was presented that all M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 32 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Respondents were aware of the fact that effective January 1, 2014, spousal impoverishment provisions must be applied to individuals, like Petitioner Reed, who will likely participate in IHSS-Community First Choice Option. 168. Petitioner meets the second and third elements because: a) Evidence was presented that despite having three separate opportunities to correctly apply the expanded spousal impoverishment protection to Petitioner Reed’s Medi-Cal eligibility determination\u2014one in 2014 and two in 2016, the expanded spousal impoverishment protection was never actually correctly applied. All Respondents and the Los Angeles County Department of Public Social Services expected Petitioner Reed to rely on these assessments and continue to pay a share of cost for services. b) Evidence was presented that Petitioner Reed was ignorant of the expanded spousal impoverishment protection until May of 2017, when he obtained representation from Bet Tzedek Legal Services. Prior to that, he was not aware that he was eligible for Medi-Cal with a reduced or eliminated share of cost, allowing him to access Medi-Cal covered benefits like IHSS; 169. Petitioner Reed meets the fourth element because evidence was presented that Petitioner Reed relied on the county’s determination of his prohibitive share of cost in making his decision to forego valuable and necessary IHSS care. 170. Petitioner also meets the fifth element of equitable estoppel, which the Administrative Law Judge erroneously failed to consider or address in his ruling. Applying equitable estoppel to the IHSS application date in this case would not frustrate public policy. To the contrary, it would effectuate the retroactive assessments that DHCS Respondents’ guidance in ACWDLs 17-25 and 18-19 purport to implement. Further, equitable estoppel is necessary to reach a just and right result for Petitioner Reed. It is undisputed that Respondents did not even begin to implement the expanded spousal impoverishment protection until July 2017. If the expanded spousal impoverishment protection had been applied to Petitioner Reed’s applications for Medi-Cal since January 1, 2014, he would have qualified for Medi-Cal with a reduced or M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 33 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF eliminated share of cost, and would have had the ability to access Medi-Cal covered services like IHSS without a share of cost. 171. This is a problem of Respondents’ own making. None of the Respondents gave the county sufficient information in 2014 or 2016 to correctly determine Petitioner Reed’s Medi- Cal or IHSS eligibility. It would be unjust for individuals who qualify retroactively for Medi-Cal to be prevented from likewise retroactively being able to apply for services for which Medi-Cal eligibility is a prerequisite, such as IHSS. Now that Petitioner Reed has been determined eligible for Medi-Cal without a share of cost, consistent with justice and public policy, he should be afforded the opportunity to likewise apply for IHSS, retroactive to the same date. 172. In addition to failing to consider the fifth element of equitable estoppel, the Administrative Law Judge mistakenly found that equitable estoppel was inapplicable because of a lack of authority requiring counties to inform the claimant of his rights to receive IHSS benefits. Whether or not this statement is factually accurate, the Administrative Law Judge misunderstands that it is the county’s failure to timely assess Petitioner Reed for Medi-Cal eligibility using the expanded spousal impoverishment protection, not the failure to inform Petitioner Reed of the protection, that creates the basis for equitable estoppel here. 173. It was also error for the Administrative Law Judge to find that the onus was on Petitioner Reed to affirmatively preserve his IHSS application date despite acknowledging that [c]ounties are responsible for informing IHSS recipients of their rights and responsibilities in relation to eligibility and despite finding that the timing of ACWDL 17-25 may be a crucial reason why the claimant did not submit his IHSS application at an earlier date. 174. Respondent Kent, as the Director of the Medicaid single state agency, and Respondent DHCS, as the Medicaid single state agency, are ultimately responsible for administration of the Medi-Cal program, including responsibilities they delegate to other agencies like state fair hearings and administration of the IHSS program. 175. Under Code of Civil Procedure section 1094.5, Petitioner Reed is entitled to a writ of administrative mandamus ordering Respondents to set aside the final hearing decision; and to issue a new and different decision granting Petitioner Reed retroactive IHSS eligibility M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 34 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF concurrently with the Medi-Cal eligibility date and ordering Los Angeles County to pay Petitioner Reed retroactive IHSS. SECOND CAUSE OF ACTION (Against Respondents Department of Health Care Services and Kent) (Code of Civil Procedure 1085 Violation of the Medicaid Act’s Reasonable Promptness, Comparability, and Statewideness Provisions) 176. Petitioners re-allege and incorporate herein by reference each and every allegation and paragraph set forth previously. 177. Effective January 1, 2014, federal law required states participating in Medicaid to adopt the definitional change of an institutional spouse to include all people who required a nursing facility level of care, but could receive home and community-based services. The effect of this definitional change is to require states to apply the spousal impoverishment protection methodology when calculating Medi-Cal eligibility. 178. DHCS Respondents have a ministerial duty: (1) to identify all potentially eligible individuals statewide; (2) to notify all potentially eligible individuals statewide of the expanded spousal impoverishment protection so that they have a reasonable opportunity to apply or seek a correct eligibility determination; (3) to supervise the counties and to enforce the expanded spousal impoverishment protection to ensure all potentially eligible individuals statewide receive correct and prompt Medi-Cal eligibility determinations; (4) to create a process to determine retroactive eligibility for In-Home Supportive Services ( IHSS ), a Medi-Cal covered home and community- based services benefit that requires Medi-Cal eligibility as a pre-requisite; and (5) to provide retroactive reimbursement for Medi-Cal covered expenses that would have been covered if Medi- Cal had been properly assessed initially. DHCS Respondents have breached these duties by: a) Failing to identify all potentially eligible individuals; b) Failing to notify all potentially eligible individuals of their right to a Medi-Cal eligibility redetermination under the expanded spousal impoverishment protection including: (i) individuals currently enrolled in IHSS-Community First Choice M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 35 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Option who have a Medi-Cal share of cost; (ii) individuals currently enrolled in Medi-Cal with a share of cost who are in need or have a pending request for IHSS or another home and community-based services program; (iii) individuals enrolled in Medi-Cal on or after January 1, 2014, but whose Medi-Cal was discontinued; (iv) individuals denied Medi-Cal eligibility due to excess property on or after January 1, 2014; (v) individuals who are institutionalized, but could live in the community with the provision of Medi-Cal home and community-based services; c) Failing to set a timeline for county compliance and to monitor counties to ensure that notices are sent promptly, or at all. d) Failing to require prompt retroactive eligibility determinations for persons potentially wrongfully denied Medi-Cal applications retroactive to January 1, 2014. e) Failing to ensure county compliance with DHCS Respondent’s directive that counties complete retroactive eligibility determinations promptly, if at all; f) Failing to ensure that individuals retroactively eligible for Medi-Cal after reassessment under expanded spousal impoverishment are receiving reimbursement of all Medi-Cal covered benefits promptly, if at all; g) Improperly delegating authority to CDSS Respondents to make its own determinations about what IHSS benefits are retroactively reimbursable following a reassessment under expanded spousal impoverishment; h) To the extent DHCS Respondent’s delegation to CDSS Respondents is proper, failing to ensure that CDSS Respondents are making prompt lawful determinations as to what IHSS benefits are retroactively reimbursable following a reassessment under expanded spousal impoverishment; and i) Failing to conduct systematic examination and evaluation of county application of the expanded spousal impoverishment protection such that access to the Medi-Cal program and to Medi-Cal covered home and community-based services programs impermissibly varies throughout the state. M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 36 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 179. DHCS Respondents have failed to enforce the federally-required expanded spousal impoverishment protection in their administration of Medi-Cal eligibility. As a result, Medi-Cal benefits are not being provided with the comparable amount, duration and scope to all potentially eligible individuals across the state. Thus, Petitioners and others similarly situated individuals have paid out-of-pocket for care and services that should have been free, thereby impoverishing their families and risking unnecessary institutionalization. 180. DHCS Respondents have a clear, present, and ministerial duty to administer the Medi-Cal program in conformity with federal and state law and regulations to ensure all individuals who apply are properly determined eligible or ineligible. Eligible individuals are entitled to home and community-based services as a covered Medi-Cal service. 181. Petitioners have a beneficial interest in the issuance of a writ of mandate because without financial assistance under Medi-Cal, they will be forced to choose between leaving their homes and families and unnecessary institutionalization or impoverishing their spouses. Petitioners are also interested as citizens in the enforcement of the public duty at issue in this case. 182. In all of the above mentioned-actions, DHCS Respondents have, acting under color of state law, deprived Petitioners of rights, privileges, or immunities secured to Petitioners by the federal Medicaid Act. 183. Petitioners lack a plain, speedy, and adequate remedy at law except by way of issuance of this writ of mandate. THIRD CAUSE OF ACTION (Against Respondents Department of Health Care Services and Director Kent) (Code of Civil Procedure 1085 Violation of Anti-Discrimination Laws) 184. Petitioners re-allege and incorporate herein by reference each and every allegation and paragraph set forth previously. 185. DHCS Respondents’ failure to ensure that Medi-Cal eligibility determinations utilize the spousal impoverishment protection methodology mandated by the federal Medicaid Act places Petitioners and others similarly situated at risk of unnecessary institutionalization in M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 37 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF violation of the Americans with Disabilities Act of 1990 ( ADA ), 42 U.S.C. 12101 et seq., as interpreted by the United States Supreme Court in Olmstead v. L.C. by Zimring, 527 U.S. 581 (1999), and Section 504 of the Rehabilitation Act. 186. Government Code 11135 prohibits DHCS Respondents from discriminating or unlawfully den[ying] full and equal access to the benefits of Medi-Cal on the basis of disability, whether mental or physical. See 22 C.C.R. 98100. Section 11135(b) expressly incorporates the ADA and its implementing regulations. Gov’t Code 11135(b). 187. Under the ADA and Section 504 of the Rehabilitation Act, DHCS Respondents have a duty to provide services to people with disabilities in the most integrated setting appropriate to their needs and to prevent unnecessary institutionalization. 28 C.F.R. 35.130(d), 41.51(d). The most integrated setting for Petitioners is continued living in their homes and communities with appropriate home and community-based services, not placement in a nursing facility. Denying integrated services to individuals with disabilities, such as Petitioners, places them at risk of unnecessary institutionalization in order to receive the care they need and violates the ADA, Section 504, and 11135. 188. Under the ADA, DHCS Respondents also have an obligation to use methods of administration that do not discriminate against individuals with disabilities such as Petitioners. DHCS Respondents administration of the Medi-Cal program fails to implement the expanded spousal impoverishment protection required by the federal Medicaid Act and thereby wrongfully bars qualified individuals with disabilities from accessing the home and community-based services they need to continue living in their homes and avoid unnecessary institutionalization. 189. DHCS Respondents have a clear, present and ministerial duty to implement Med- Cal in a manner that complies with state and federal anti-discrimination laws, and Petitioners have a beneficial interest in the performance of that duty. Petitioners are entitled to a writ of mandate to enforce that duty. FOURTH CAUSE OF ACTION (Against Respondents Department of Health Care Services and Director Kent) M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 38 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (Code of Civil Procedure 1085 Violation of Welfare & Institutions Code 10000 & 10500) 190. Petitioners re-allege and incorporate herein by reference each and every allegation and paragraph set forth previously. 191. Welfare & Institutions Code 10000 requires California public assistance, including Medi-Cal, to be administered promptly and humanely. Section 10500 requires DHCS Respondents to administer the Medi-Cal program in a way that secures for every person the amount of aid to which he is entitled. 192. Petitioners and other potentially eligible individuals have gone without care, paid enormous costs out of pocket, or been institutionalized while waiting for DHCS Respondents to provide them with the federally-required expanded spousal impoverishment protections. 193. By belatedly issuing the expanded spousal impoverishment protection policies, failing to notify potentially eligible individuals, and abrogating their mandatory duty under the Medicaid Act to enforce those provisions consistently across the state, DHCS Respondents have impermissibly delayed and deprived Petitioners and similarly situated beneficiaries of the aid to which they are entitled and have thus violated sections 10000 and 10500 of the Welfare & Institutions Code. Petitioners are entitled to a writ of mandate to compel enforcement of the ministerial duty to comply with these statutes. 194. DHCS Respondents have a clear, present and ministerial duty to promptly and humanely administer the Med-Cal program according to state and federal law and furnish Medi- Cal benefits and services with reasonable promptness. Petitioners have a beneficial interest in the performance of that duty. Petitioners are entitled to a writ of mandate to enforce that duty. M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 39 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF FIFTH CAUSE OF ACTION (Against Respondents Department of Health Care Services and Director Kent) (Code of Civil Procedure 1085 Violation of California Procedural Due Process, Cal. Const. Art. I, 7, 15) 195. Petitioners re-allege and incorporate herein by reference each and every allegation and paragraph set forth previously. 196. Respondent Kent, as the Director of the Medicaid single state agency, and Respondent DHCS, as the Medicaid single state agency, are ultimately responsible for administration of the Medi-Cal program, including ensuring the provision of adequate notice and hearing rights. 197. Petitioners have a private, dignitary and statutory interest in receiving notice of their right to a hearing regarding DHCS Respondents’ action or inaction with respect to their Medi-Cal eligibility. DHCS Respondents failed to provide adequate notice informing Petitioners and other potentially eligible individuals of their right to Medi-Cal eligibility under the expanded spousal impoverishment protection and their right to a hearing by: a) Failing to notify individuals currently enrolled in IHSS-Community First Choice Option who have a Medi-Cal share of cost; b) Failing to notify individuals currently enrolled in Medi-Cal with a share of cost who are in need or have a pending request for IHSS or another home and community- based services program; c) Failing to notify individuals who were enrolled in Medi-Cal on or after January 1, 2014, but whose Medi-Cal was discontinued; d) Failing to notify individuals who were denied Medi-Cal eligibility due to excess property on or after January 1, 2014; and e) Failing to notify individual who are institutionalized, but could live in the community with the provision of Medi-Cal home and community-based services. M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 40 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 198. DHCS Respondents’ practices and procedures alleged herein violate the due process guarantee of the California Constitution by, among other things, denying Petitioners adequate notice and the opportunity for a fair hearing to dispute a denial of Medi-Cal eligibility or incorrect share of cost. 199. In all of this, DHCS Respondents have deprived Petitioners of rights, privileges or immunities secured to them by the Constitution of the State of California. Petitioners have a beneficial interest in the performance of that duty. Petitioners are entitled to a writ of mandate to enforce that duty. SIXTH CAUSE OF ACTION (Against Respondents Department of Health Care Services and Director Kent) (Code of Civil Procedure 1085 Violation of Medicaid Act, Failure to provide Notice and Opportunity for Hearing) 200. Petitioners re-allege and incorporate herein by reference each and every allegation and paragraph set forth previously. 201. Respondent Kent, as the Director of the Medicaid single state agency, and Respondent DHCS, as the Medicaid single state agency, are ultimately responsible for administration of the Medi-Cal program, including ensuring the provision of adequate notice and hearing rights. 202. Pursuant to the Medicaid Act, the State of California has established a procedure to provide notice and a fair hearing to any Medi-Cal applicant and beneficiary to contest any action or inaction by the Department to approve, deny, discontinue, or change the eligibility status for Medi-Cal or a share of cost. 22 C.C.R. 50179(a), (c)(4). By failing to grant an opportunity for a fair hearing to an individual whose Medi-Cal was denied or not acted upon with reasonable promptness as set forth above, DHCS Respondents are in violation of 42 U.S.C. 1396a(a)(3). 203. DHCS Respondents failed to provide adequate notice informing Petitioners of their right to Medi-Cal eligibility under the expanded spousal impoverishment protection and their right to a hearing by: M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 41 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF a) Failing to notify individuals currently enrolled in IHSS-Community First Choice Option who have a Medi-Cal share of cost; b) Failing to notify individuals currently enrolled in Medi-Cal with a share of cost who are in need or have a pending request for IHSS or another home and community- based services program; c) Failing to notify individuals who were enrolled in Medi-Cal on or after January 1, 2014, but whose Medi-Cal was discontinued; d) Failing to notify individuals who were denied Medi-Cal eligibility due to excess property on or after January 1, 2014; and e) Failing to notify individual who are institutionalized, but could live in the community with the provision of Medi-Cal home and community-based services. 204. DHCS Respondents’ practices and procedures alleged herein violate 42 U.S.C 1396a(a)(3) by among other things, failing to ensure that Petitioners have access to a fair hearing to dispute a denial of Medi-Cal eligibility or incorrect share of cost. Petitioners have a beneficial interest in the performance of that duty. Petitioners are entitled to a writ of mandate to enforce that duty. SEVENTH CAUSE OF ACTION (Against Respondents Department of Health Care Services and Director Kent) (Code of Civil Procedure 526A Taxpayer Action to Prevent Illegal Expenditure of Funds) 205. Petitioners re-allege and incorporate herein by reference each and every allegation and paragraph set forth previously. 206. DHCS Respondents have expended public funds in the promulgation and implementation of unlawful policies as described above, including using public funds in part through Medi-Cal to pay for the unnecessary institutionalization of individuals who would have qualified for less costly home care had the expanded spousal impoverishment protection been correctly and promptly applied. M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 42 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 207. Petitioners, who, within one year before the commencement of this suit, have been assessed and paid a tax within and to the State of California, have been substantially affected by these illegal expenditures. 208. DHCS Respondents’ unlawful conduct, unless and until enjoined by order of this Court, will cause great and irreparable injury to Petitioners in that DHCS Respondents will continue to make illegal expenditures. PRAYER FOR RELIEF WHEREFORE, Petitioners pray that the Court order the following relief and remedies: A. That the Court exercise its independent judgment and issue a Peremptory Writ of Administrative Mandamus pursuant to Cal. Civ. Proc. Code 1094.5 commanding Respondents CDSS and Respondents DHCS to: i. Set aside Hearing No. 2017318248-467; ii. Issue a new and different decision establishing Petitioner Reed’s IHSS effective application date as concurrent with his retroactive Medi-Cal eligibility date and ordering IHSS services retroactive to that date; and iii. Order Los Angeles County to pay Petitioner Reed retroactive IHSS wages with prejudgment interest from the earliest date of his Medi-Cal and IHSS eligibility to the present. B. Issue a writ of mandate and preliminary and permanent injunctive relief prohibiting DHCS Respondents from continuing to violate Section 1396r-5(h)(1)(A) of the federal Medicaid Act, state and federal anti-discrimination laws, Medi-Cal and California Constitutional Due Process rights, and sections 10000 and 10500 of the Welfare & Institutions Code. C. Declare that DHCS Respondents are required to fully and effectively implement the expanded spousal impoverishment protection pursuant the federal Medicaid Act as amended by the Affordable Care Act and should have done so since January 1, 2014. D. Issue a writ of mandate pursuant to Code of Civil Procedure 1085 commanding DHCS Respondents to take all steps necessary to promptly and completely implement the expanded spousal impoverishment protection within 90 days of issuance of the writ including: M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 43 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF i. Identify and provide notice, which includes the right to a fair hearing to all potentially eligible individuals whose Medi-Cal eligibility was wrongly determined because of DHCS Respondents’ failure to apply the spousal impoverishment methodology on or after January 1, 2014; ii. Identify and re-determine Medi-Cal eligibility for all potentially eligible individuals using the expanded spousal impoverishment protection methodology to the date of application for home and community-based services or for Medi-Cal, whichever came first; iii. Create a process for determining retroactive IHSS eligibility for all Medi- Cal beneficiaries redetermined under the expanded spousal impoverishment protection; iv. Provide for retroactive reimbursement for or payment of expenses that Medi- Cal would have covered if DHCS Respondents had timely implemented the expanded spousal impoverishment protection; v. Reverse the guidance in ACDWL 18-19 that limits claims for IHSS reimbursement or payment to services provided by an IHSS enrolled provider. vi. Supervise counties in eligibility determinations and redeterminations for all impacted applicants and beneficiaries to ensure implementation within 90 days; and vii. Monitor the application of the expanded spousal impoverishment protection and report data to Petitioners’ counsel on Medi-Cal and home and community-based services program enrollment quarterly for two years. E. Award Petitioners the costs of this action and reasonable attorneys’ fees; and F. Such other and further relief as the Court deems just and proper. M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 44 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Dated: May XX, 2019 McDERMOTT WILL & EMERY LLP By: GREGORY R. JONES Attorneys for Petitioners\/Plaintiffs M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 45 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF VERIFICATION OF PATRICK KELLEY I, PATRICK KELLEY, hereby state as follows: 1. I have read the foregoing Petition for Writ of Mandate and know its contents. 2. I certify that the factual allegations contained in the Petition related to Petitioner Patrick Kelley are true of my own personal knowledge. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on May ____________, 2019 in Los Angeles County, California. ______________________________ Patrick Kelley M C D E R M O T T W IL L & E M E R Y L L P A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 90299138-2.099891.0012 46 FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5); COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF VERIFICATION OF MATTHEW REED I, Vicky Reed, Guardian Ad Litem for Petitioner MATTHEW REED, hereby state as follows: 1. I have read the foregoing Petition for Writ of Mandate and know its contents. 2. I certify that the factual allegations contained in the Petition related to Petitioner Matthew Reed are true of my own personal knowledge. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on May ____________, 2019 in Los Angeles County, California. ______________________________ Matthew Reed, by and through his guardian ad litem, VICKI REED M C D E R M O T T W IL L & E M E R Y L LP A T T O R N E Y S A T L A W L O S A N G E L E S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE DM_US 156346520-1.099891.0012 PROOF OF SERVICE FEDEX I, Regina N. Hunter, declare: I am a citizen of the United States and employed in Los Angeles County, California. I am over the age of eighteen years and not a party to the within-entitled action. My business address is 2049 Century Park East, Suite 3800, Los Angeles, California 90067-3218. On May 10, 2019, I served a true and correct copy of STIPULATION & ORDER TO FILE FOURTH AMENDED PETITION: \u2610 by email via PDF FILE, by transmitting on this date via email, a true and correct copy scanned into an electronic file in Adobe pdf format. The transmission was reported as complete and without error. \u2612 by placing the document(s) listed above in a sealed envelope and affixing a pre-paid air bill, and causing the envelope to be delivered to a FedEx agent for delivery. Michael Byerts Deputy Attorney General Health, Education and Welfare Section Los Angeles 300 S. Spring Street, Suite 1702 Los Angeles, California 90013 Tel: 213.269.6266 eMail: [email protected] Counsel for Respondents Following ordinary business practices, the envelope was sealed and placed for collection by FedEx on this date, and would, in the ordinary course of business, be retrieved by FedEx for overnight delivery on this date. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on May 10, 2019, at Los Angeles, California. Regina N. Hunter ”

pdf Koen v. Lightbourne- IHSS Protective Supervision Notice of Action case

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pdf Koens v. Lighbourne – ameded complaint regarding IHSS inadequate NOA

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Koens v. Lighbouorne – ameded complaint.pdf

” – 1 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GRACE GALLIGHER (S.B.N. 106687) Coalition of California Welfare Rights Organizations, Inc. 1111 Howe Ave, Suite 150 Sacramento, CA 95825 Telephone: (916) 947-1037 Facsimile: (916) 736-2645 Attorney for Petitioners KAREN KOENS, KAREN KOENS as Guardian ad litem for MK., VANESSA LANDEROS-MARTINEZ, VANESSA LANDEROS-MARTINEZ as Guardian ad Litem for E.M., and MARCELLA PIERSON as Guardian ad Litem for A.M. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ALAMEDA KAREN KOENS, KAREN KOENS as ) Case No. RG17885067 Guardian ad litem for MK., VANESSA ) LANDEROS-MARTINEZ, and VANESSA ) FIRST AMENDED VERIFIED LANDEROS-MARTINEZ as Guardian ad Litem ) PETITION FOR WRIT OF for E.M. and MARCELLA PIERSON as Guardian) MANDATE, PETITION FOR WRIT ad Litem for A.M. ) OF ADMINISTRATIVE MANDAMUS ) [CCP 1060, 1085, 1094.5; Petitioners\/Plaintiffs ) Welf. & Inst. Code 10962]; ) COMPLAINT FOR DECLARATORY vs. ) RELIEF ) [CCP 1060] WILL LIGHTBOURNE, in his official capacity ) as Director, California Department of Social ) DATE: N\/A Services, CALIFORNIA DEPARTMENT OF ) TIME: N\/A DEPARTMENT OF SOCIAL SERVICES, ) DEPT: TBA JENNIFER KENT, in her official capacity as ) JUDGE: TBA Director California Department of Health Care ) Services and the CALIFORNIA DEPARTMENT ) Action Filed: December 7, 2017 OF HEALTH CARE SERVICES, ) ) Respondents\/Defendants. ) __________________________________________) – 2 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION 1. Petitioners Karen Koens, Vanessa Landeros-Martinez and Marcella Pierson hereby challenge the failure by Respondents Will Lightbourne, Director, California Department of Social Services, the California Department of Social Services (hereafter CDSS), Jennifer Kent, Director California Department of Health Care Services and the California Department of Health Care Services (hereafter DHCS) to provide adequate Notices of Action when denying Protective Supervision after assessing an In-Home Supportive Services applicant or reassessing an In-Home Supportive Services recipient. 2. Respondents impermissibly limit the information contained in the notice of action provided to applicants and recipients of IHSS Protective Supervision in a meaningful manner. When a county denies protective supervision, the notice does not state whether the applicant or recipient was assessed for protective supervision or why protective supervision was denied. The notice of action (hereafter NOA) does not identify the specific regulation that supports the action. Instead, the NOA cites the regulation containing the technical definition of Protective Supervision and Protective Supervision regulations generally. The NOA fails to identify the information or action that the applicant or recipient needs to gain IHSS protective supervision. 3. Petitioners bring this action on their own behalf because they are beneficially interested in receiving an adequate NOA for IHSS Protective Supervision Services that provides (1) client- specific information that is sufficient to allow the individual to determine the issue, (2) a non- technical explanation of the concept of Protective Supervision , (3) an explanation of the action, if any, to be taken to establish eligibility or determine a correct amount of aid, (4) the specific regulations that were relied upon to determine that Protective Supervision was not needed and (5) if – 3 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the individual does not agree, to decide whether to request an administrative hearing to review the county’s determination. II. STATEMENT OF FACTS A. Petitioner KAREN KOENS 4. Ms. Koens is the mother and caregiver of her disabled minor son, M.K., who suffers from Autism. From infancy, M.K. experienced profound developmental delays with respect to language development, self-stimulating behaviors, socialization and impulsivity. When M.K. was 18 months, Ms. K.K. had his symptoms and behaviors evaluated and was diagnosed with autism spectrum disorder. He has since been diagnosed with seizure disorder. At seven years of age, M.K., who is nonverbal, did not know and could not recite his telephone number his name or his address. At all relevant times, M. K. lives with his parents and his older sister in Santa Cruz County. 5. M.K. receives federal Social Security Supplemental Security Income benefits and Medi- Cal. He is a client with the San Andreas Regional Center. At all pertinent times, he attends special education classes in a highly restricted environment. 6. On February 6, 2014, Ms. Koens applied for IHSS services and Protective Supervision for her son. On March 12, 2014, Santa Cruz County conducted a home visit to assess M.K. for IHSS services. The worker noted that 7-year old M.K. is not toilet trained and uses diapers, needs assistance with dressing, bathing, oral hygiene, grooming. M.K. requires verbal direction and supervision during meals. 7. During the March 12, 2014 interview, Ms. Koens reported that her husband worked. She also said that she was temporarily disabled because as she was being treated for breast cancer. The social worker informed Ms. Koens that she could hire someone to be the paid IHSS provider. Ms. – 4 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Koens stated that she could care for M.K. at that point in time. She indicated that she might need to have a care provider for M.K. after her surgery. 8. On March 12, 2014 Santa Cruz County denied Ms. Koens’ IHSS application. The NOA states that [Y]ou did not tell us enough information to determine if you can get services. (MPP 30- 760.1). The denial reason is that [T]he parent has not left full-time employment or is prevented from obtaining full-time employment because of the need to provide IHSS to the child. (30- 763.451(a).) The NOA did not provide (1) client-specific information that was sufficient to allow a determination as to why the minor was not eligible for PS sufficiently to allow the individual to determine the issue, (2) a non-technical explanation of the concept of Protective Supervision , (3) an explanation of the action, if any, to be taken to establish eligibility or determine a correct amount of aid and (4) the specific regulations that were relied upon to determine that Protective Supervision was not needed. 9. Ms. Koens made a new application for IHSS for M.K., including Protective Supervision in early 2016. Santa Cruz County approved IHSS services including Protective Supervision and also approved Ms. Koens as the IHSS provider for M.K. 10. After the 2016 IHSS application was approved, Ms. Koens requested an administrative hearing on April 19, 2016 to review the March 12, 2014 Notice. Santa Cruz County requested that the hearing be bifurcated to determine whether there was jurisdiction for CDSS to hold an administrative hearing on the 2014 NOA. 11. The jurisdictional hearing was held on May 25, 2016. The ALJ found that the March 12, 2014 NOA was inadequate and ordered an administrative hearing on the merits. The administrative hearing on the merits was held on September 15, 2016. During the hearing, the parties reviewed IHSS services areas including Protective Supervision. The Santa Cruz County argued that Ms. – 5 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Koens was ineligible to be a provider for her son and receive IHSS due to the two-parent rule, M.P.P. 30-763. The County conceded that Ms. Koens had recovered from her illness and was currently the IHSS provider. 12. The Proposed Decision in Hearing #2016112009 specifically rejected Santa Cruz County’s contention that Ms. Koens could not be her son’s IHSS provider because her husband was available to provide care to the child as part of an intact two-parent family. (A true copy of the Proposed Decision in Hearing #2016112009 is attached hereto and incorporated by reference as Exhibit 1.) The Proposed Decision also rejected the county’s contention that Ms. Koens was ineligible to be her child’s IHSS provider as she had not left out-of home employment to care for M.K. (Exhibit #1, Proposed Decision #2016112009 p. 23.) The ALJ also granted Protective Supervision for M.K and ordered the claim remanded for the County to approve Protective Supervision and other IHSS in the amount effective February 6, 2014 ongoing until the date of the current 2016 assessment. (See Exhibit #1, Proposed Decision, p. 23.) 13. After reviewing the Proposed Decision in #2016112009, the Presiding Judge, on behalf of Respondent Jennifer Kent, exercised his authority to issue the Director’s Alternate Decision and held that the March 12, 2014 NOA was adequate and asserted that CDSS had no jurisdiction to consider the merits of Ms. Koens’ claim for retroactive Protective Supervision for M.K.. (A true copy of the Director’s Alternate Decision in Hearing #2016112009 is attached hereto and incorporated by reference as Exhibit 2.) B. Petitioner VANESSA LANDEROS-MARTINEZ 14. Ms. Landeros-Martinez is the mother and caregiver of her developmentally disabled minor daughter, E.M. E.M. was diagnosed at birth as having the congenital developmental disorder Down Syndrome and has been diagnosed as having significant intellectual disabilities (formerly – 6 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 described as mental retardation). E.M. receives Supplemental Security Income (SSI) and Medi-Cal. She is a client with the North Bay Regional Center. She attends special education classes. At all times relevant to this petition, E.M. lives with her mother, stepfather and younger half-siblings in Sonoma County, California. 15. Ms. Landeros-Martinez initially requested In Home Supportive Services (IHSS) on behalf of her daughter in 2010 when E.M. was 10 years old from the Sonoma County Welfare Department. Sonoma County made a home visit to assess E.M. for IHSS eligibility. Sonoma County issued a NOA granting some IHSS for the child. However, the NOA did not state whether Sonoma County assessed E.M. for Protective Supervision and does not state the reasons for denying Protective Supervision. This NOA did not provide (1) client-specific information that was sufficient to allow a determination as to why the minor was not eligible for PS sufficiently to allow the individual to determine the issue, (2) a non-technical explanation of the concept of Protective Supervision , (3) an explanation of the action, if any, to be taken to establish eligibility or determine a correct amount of aid and (4) the specific regulations that were relied upon to determine that Protective Supervision was not needed. 16. Subsequent reassessment home visits confirmed E.M.’s eligibility for IHSS services. From January 27, 2011 through June 22, 2015, Ms. Landeros-Martinez received seven (7) additional notices of action pertaining to E.M.’s IHSS services. None of the additional notices of action addressed whether Sonoma County assessed E.M. for Protective Supervision and found her to be ineligible or that she was never assessed for Protective Supervision. This NOA did not provide (1) client-specific information that was sufficient to allow a determination as to why the minor was not eligible for PS sufficiently to allow the individual to determine the issue, (2) a non-technical explanation of the concept of Protective Supervision , (3) an explanation of the action, if any, to be – 7 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 taken to establish eligibility or determine a correct amount of aid and (4) the specific regulations that were relied upon to determine that Protective Supervision was not needed. 17. Subsequent to the June 22, 2015 NOA, Ms. Landeros-Martinez learned about Protective Supervision from an IHSS advocate. She requested that the County assess E.M. for Protective Supervision. Sonoma County issued the August 16, 2016 NOA authorizing Protective Supervision retroactive to October 30, 2015. 18. On September 7, 2016, Ms. Landeros-Martinez requested an administrative hearing to dispute the County’s denial of Protective Supervision from the initial application date September 15, 2010 until October 29, 2015. 19. CDSS held the administrative hearing on October 28, 2016. During the hearing, Sonoma County asserted that all of the issued NOAs pertaining to the amount of and type of IHSS services available to E.M. between 2010 and October 29, 2015 were legally sufficient. The County maintained that E.M. was not entitled to retroactive Protective Supervision as there had been no timely request for a hearing within the jurisdictional window, per CDSS regulations is generally 90 days from the date the NOA is issued. None of the seven NOAs indicate that E.M. was ever assessed for Protective Supervision even though IHSS regulations specifically requires that all minor children IHSS applicants be assessed for any need for PS services. None of the seven notices provided (1) client-specific information as to why the minor was not eligible for PS sufficiently to allow the individual to determine the issue, (2) a non-technical explanation of the concept of Protective Supervision , and (3) an explanation of the action, if any, to be taken to establish eligibility or determine a correct amount of aid. 20. The CDSS Administrative Law Judge (ALJ) issued a Proposed Decision in Hearing #2016256251 on November 9, 2016. (A true copy of the Proposed Decision in Hearing – 8 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 #2016256251 is attached hereto and incorporated by reference as Exhibit 3.) In this Decision, the ALJ analyzed the County’s documents. There were no notes under Protective Supervision and there was no protective supervision worksheet in the file. 21. The ALJ analyzed the Notices of Action for adequacy on the issue of assessing for Protective Supervision . The ALJ noted that the 9\/15\/10, 1\/27\/2011, 1\/30\/12, 2\/15\/13 and the 8\/29\/13 had no figure in the column following Protective Supervision and no regulation describing Protective Supervision at the bottom of the Notices. The Protective Supervision Notices dated 5\/20\/14, 6\/9\/14 and 6\/22\/15 failed to provide any short descriptions of any service. These Notices contained zeros for the line Protective Supervision, failed to explain why E.M. was not eligible for Protective Supervision and there were no messages concerning Protective Supervision anywhere on the Notices. Also, the June 22, 2015 notice did not contain any individual messages to the claimant on the fifth page. The ALJ determined that none of the Notices of Action were adequate and there is jurisdiction to hear the merits for retroactive assessments. (Exhibit 3, Proposed Decision in Hearing #2016256251, pp. 12, 13.) 22. The ALJ also reviewed the standards for protective supervision for minors. The ALJ found that the Sonoma County social workers made home visits in most of the years from 2010 to 2016. She noted that the county failed to assess E.M. for Protective Supervision and failed to request that the parent obtain available information and documentation about the mental development. 23. After reviewing Proposed Decision #2016256251, The Presiding Judge, on behalf of Respondent Director Lightbourne, exercised his authority to issue the Director’s Alternate Decision by concluding that all of the written notices of action were adequate. (A true copy of the Director’s Alternate Decision in Hearing #2016256251 is attached hereto and incorporated by reference as – 9 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 4.) As such, Ms. Landeros-Martinez’s request for hearing must be dismissed as an untimely filing within the State Hearing jurisdiction. 24. In reaching the decision that the request for hearing must be dismissed, only one NOA was reviewed for adequacy. (Exhibit 4, Director’s Alternate Decision, p. 6 [ Since a single adequate NOA would be sufficient to render the Claimant’s hearing request untimely, it is only necessary to evaluate the most recent NOA from June 22, 2015. ]) There is no authority for such a finding. 25. The Presiding Judge stated While some would like a detailed evaluation in each notice of action of what information was considered and which element was found lacking, the IHSS program finds that is not necessary to meet the legal adequacy standard. [Emphasis added.] Indeed, many individual parents request a state hearing each year, without benefit of a professional advocates, solely on the basis of the information provided on the notice of action. The notice of action is already 6 pages long, and at some point adding more detail only confuses the issues. (Exhibit 4, Director’s Alternated Decision, p. 7.) C. Petitioner MARCELLA PIERSON 26. Ms. Pierson is the mother and caregiver of her disabled minor son, A.M. On June 11, 2013, her son suffered a near drowning accident and was subsequently diagnosed as having Anoxic Brain Injury. At all times relevant to this petition, A.M. lives with his mother, father and three other siblings in Mission Hills, Los Angeles County, California. 27. When her son was being treated in the hospital, Ms. Pierson was informed of the IHSS Program by hospital staff. In response to Ms. Pierson’s request for IHSS, Los Angeles County performed an IHSS home assessment on October 7, 2013. On November 12, 2013 Los Angeles County issued a NOA granting some IHSS service activities from August 9, 2013 but had zero hours for protective supervision. The NOA informed Ms. Pierson of the statutory eight (8) percent hourly reduction in IHSS services. This NOA does not (1) state whether Los Angeles County assessed A.M. for Protective Supervision, (2) does not provide a non-technical explanation of the concept of – 10 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Protective Supervision (3) does not state client-specific information as to why the minor is not eligible for Protective Supervision, (4) an explanation of the action, if any, to be taken to establish eligibility or determine a correct amount of aid and (5) the specific regulations that were relied upon to determine that Protective Supervision was not needed. 28. After receiving the November 12, 2013 NOA, Ms. Pierson contacted the County and asked the social worker if there were additional hours that her son could receive and asked if her son was eligible for Protective Supervision or paramedical services. The worker verbally advised her that her son was not eligible. 29. Los Angeles County sent a NOA dated January 10, 2014 reconfirming that the minor could receive 181:30 hours of IHSS services per month with zero (0) hours for Protective Supervision. The January 10, 2014 NOA stated that the IHSS hours would be through the IHSS Plus Program since the IHSS service provider is the parent. The NOA informed Ms. Pierson of the statutory eight (8) percent hourly reduction in IHSS services. This NOA (1) does not state whether Los Angeles County assessed A.M. for Protective Supervision, (2) does not provide a non-technical explanation of the concept of Protective Supervision , (3) does not state client-specific information as to why the minor is not eligible for Protective Supervision and (4) an explanation of the action, if any, to be taken to establish eligibility or determine a correct amount of aid. 30. Subsequent reassessments gave rise to NOAs dated June 9, 2014, February 18, 2015 and June 17, 2016 which continued to authorize 181:30 of IHSS services each month. These notices suffered the same due process defects as the January 10, 2014 NOA. These NOAs did not authorize Protective Supervision hours. The June 9, 2014 and February 18, 2015 NOAs informed Ms. Pierson of the statutorily mandated hourly reduction in IHSS services. – 11 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 31. Los Angeles County conducted a reassessment of A.M. on January 18, 2017. The County issued the February 1, 2017 NOA stating that the minor’s condition has changed and\/or that A.M. now needs Protective Supervision in the amount of 23 hours and 26 minutes per week effective February 1, 2017, for a total of 283 IHSS hours per month. The NOA stated that the minor is non- self-directing, confused, mentally impaired or mentally ill and need 24-hour supervision. 32. On February 24, 2017, Ms. Pierson requested an administrative hearing to dispute the County’s denial of Protective Supervision benefits from August 13, 2013 until February 1, 2017. Ms. Pierson stated that her son had had the same diagnosis, and has required the same amount of care since June 13, 2013. 33. In response to the hearing request, Los Angeles County issued the NOA dated March 1, 2017 notifying Petitioner that Protective Supervision was authorized retroactive to October 1, 2016 in the amount of 23:26 per week. 34. CDSS held the hearing on May 2, 2017 on the issue of whether jurisdiction existed to hold a hearing on the merits for retroactive Protective Supervision for the period August 2013 through September 30, 2016. During the hearing, Los Angeles County asserted that there was no jurisdiction for the hearing in that the Claimant did not request a hearing within 90 day and that all of the issued IHSS NOAs were legally sufficient. The County testified that all five notices were sent to the claimant’s address of record and that none of the notices were returned to the county. 35. During the hearing, the County representative testified that the county did not conduct a reassessment of A.M.’s IHSS needs in 2014. The County representative testified that Ms. Pierson first requested Protective Supervision for her son on October 17, 2016. – 12 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 36. During the hearing, the minor’s father testified that they [Mr. Muhammad and Ms. Pierson] trusted the county, who informed them that their son was not eligible for protective supervision and that his son’s condition has always been the same. 37. The CDSS Administrative Law Judge (ALJ) issued a Decision in Hearing #2017060421 on May 8, 2017. (A true copy of the Decision in Hearing #2017060421 is attached hereto and incorporated by reference as Exhibit 5.) The ALJ reviewed the Notices of Action for adequacy on the issue of assessing for Protective Supervision . The ALJ noted that the Description of Services cites the CDSS regulations for Protective Supervision (MPP 30-757.17) as well as indicates that protective supervision is for observing the behavior of a nonself-directing, confused, mentally impaired or mentally ill recipient and assisting as appropriate to safeguard the recipient against injury, hazard or accident. 38. The ALJ found that all five NOAs informed Claimant that he had the right to request a hearing within 90 days if he disagreed with the county’s action and how to request it. The NOAs included a Description of Services sheet with citations to the regulations supporting the county’s action, the regulations and explanation of Protective Supervision. 39. The ALJ determined that the five NOAs were adequate because each informed the claimant of the action the county intended to take, including informing the claimant that the county had authorized no time for protective supervision services, and it included the reasons for the intended action, the specific regulations supporting the action and an explanation of the claimant’s right to request a state hearing. 40. The ALJ concluded that the hearing request was untimely and as such there is no jurisdiction to hear the claimant’s claim that the recipient should receive retroactive protection – 13 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 supervision for the period of August 2013 through September 30, 2016. A request for an administrative rehearing was denied by Respondents on January 2, 2018. III. PARTIES 41. Petitioner Karen Koens is the mother and care provider for her son, M.K., who has been diagnosed with Autism Spectrum Disorder. Petitioner Koens requested IHSS on behalf of her son on February 6, 2014 but the IHSS application was denied on March 12, 2014. The NOA made no mention of whether Santa Cruz County assessed M.K. for Protective Supervision. 42. Petitioner Vanessa Landeros-Martinez is the mother and care provider for her minor daughter E.M. Petitioner originally applied for IHSS Services on August 11, 2010 when E.M. was 10 years of age. The County granted IHSS services but not Protective Supervision. From 2010 through 2015, Ms. Landeros-Martinez never received one NOA that explained Protective Supervision and whether Sonoma County assessed E.M. for Protective Supervision. 43. Petitioner Marcella Pierson is the mother and care provider for her minor son, A.M. Petitioner originally applied for IHSS and was granted IHSS services but not Protective Supervision effective August 9, 2013. From 2013 through September 30, 2016, Ms. Pierson never received one NOA that explained Protective Supervision, whether Los Angeles County assessed her son for Protective Supervision and why the County determined that A.M. was not eligible. 44. Respondent Lightbourne is responsible for formulating, adopting, and amending regulations and general policies affecting the purposes and responsibilities within the jurisdictions of CDSS, in a manner which is both consistent with the law and necessary for the administration of public social services. He is also responsible for the enforcement of all federal and state laws and regulations to insure that county welfare departments execute the regulations in a uniform and consistent manner. (Welf. & Inst. Code 10553.) He has the authority, where appropriate, to – 14 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 alternate a hearing decision that has been prepared by a CDSS Administrative Law Judge should the hearing decision not meet the legal standards for issuance and enforcement of agency rules, state and\/or federal law. (Welf. & Inst. Code 10959, 10961, MPP 22-061.) Respondent Lightbourne is being sued in his official capacity. 45. Respondent Lightbourne has the authority to grant a rehearing, if appropriate, should a hearing decision not meet the legal standards for issuance and enforcement of agency rules, state and\/or federal law. (Welf. & Inst. Code 10960.) 46. Respondent California Department of Social Services is the single state agency responsible for the administration of the public social services administrative hearing process. (Welf. & Inst. Code 10950.) When CDSS’ administrative law judge conducts a hearing, the judge will prepare a written decision that may be adopted as Respondent Lightbourne’s decision. (Welf. & Inst. Code 10958.) 47. CDSS administers the In-Home Supportive Services Program, to insure that each county complies with state laws and regulations including issuing adequate NOAs after each and every assessment or reassessment of an individual granting or denying protective supervision. (Welf & Inst. Code 10600.) 48. Respondent Jennifer Kent is the Director of Department of Health Care Services and, as such, is responsible for operations of DHCS, enforcement of all laws pertaining to the administration of health care services and medical assistance (Welf. & Inst. Code 10721.) Respondent Kent is responsible for overseeing that all Medi-Cal NOAs comply with the federal Medicaid regulations pursuant to 42 C.F.R. Section 431.210. (Welf. & Inst. Code 12300.) She has authorized Respondent Director Lightbourne to provide administrative hearings for health care services and – 15 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 medical assistance. (Welf. & Inst. Code 10950(f).) Respondent Kent is sued in her official capacity. 49. Respondent Department of Health Care Services is the single state agency charged with full power to supervise every phase of the administration of health care services and medical assistance for which grants-in-aid are received from the United States government or made by the state in order to secure full compliance with the applicable provisions of state and federal laws. (Welf. & Inst. Code 10740.) This includes the administration of the Medi-Cal1 program and ensuring the Medi-Cal program is operated in conformity with all state and federal laws. (Welf. & Inst. Code 14000 et seq.) 50. Petitioners are informed and believe and on that basis allege that the actions complained of herein were carried out by and under the direction and control of Respondents, through their agents and\/or employees, and done within the scope of said agency and\/or employment of Respondent Lightbourne and Respondent Kent. IV. APPLICATION TO PROCEED UNDER FICTITIOUS NAMES 51. Petitioners Karen Koens , Vanessa Landeros-Martinez and Marcella Pierson request permission from this Court to proceed in this action using fictitious names for their minor children, E.M. who is profoundly disabled, M.K., who is a disabled minor child, and A.M. who is brain damaged. Ms. Koens, Ms. Landeros-Martinez and Ms. Pierson seek to proceed using fictitious names for their children to protect the privacy their children. In the matter Doe v. Lincoln Unified School District (2010) 188 Cal.App.4th 758, the California Third District Court of Appeal held in 1 The federal Medicaid Program is called Medi-Cal in California. – 16 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that the judicial use of Doe plaintiffs had gained wide currency . (See Starbucks Corp. v. Superior Court (2008) 16 Cal.App.4th 1436.) 52. The principal rule concerning the use of a fictitious name for a party plaintiff requires for that the California Civil Code Sec. 372 be followed. In short, the party prosecuting the claim must be the real party in interests or the person who was injured, otherwise harmed and who has legal standing to proceed with the suit. In this action, the disabled minor children, of Ms. Koens, Ms. Landeros-Martinez and Ms. Pierson are the parties aggrieved and injured by the Respondents’ issuance of alternated decisions in CDSS administrative fair hearings matters concerning the eligibility of the disabled minors to receive IHSS PS services. Ms. Koens, Ms. Landeros-Martinez and Ms. Pierson, as guardians and ad litem, as well as the parents of the disabled minor children, are not only entitled to proceed with this action on behalf of their children, but they are also authorized to proceed using the Doe fictitious name rules. 53. The Doe plaintiff rule is best articulated in the federal case Does I through XXIII v. Advanced Textile Corp. (9th Cir. 2000) 214 F.3d 1058 at 1067. That decision recognized three grounds for which a plaintiff is permitted to proceed in an action using a pseudonym. Only the first two reasons are relevant to this matter. First, is the situation where identification creates a risk of retaliatory physical or mental harm [citations omitted]. The second situation is where anonymity is necessary to preserve privacy in a matter of a sensitive and highly personal nature. The real parties in interest in this action, represented by their parents and guardians ad litem, have profound developmental and other disabilities which are easily and readily the sources of public fear, scorn and approbation as a result of behaviors and conduct consistent with their diagnosed medical conditions as well as shame and embarrassment. – 17 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 54. The true names of these real parties in interests are actually known to the Respondents, their agents and assigns. The use of the Doe plaintiff pseudonyms is necessary to afford the real parties in interests, some modicum privacy, dignity and respect while their right to have IHSS PS benefits provided as required by law are prosecuted through their request for judicial review of the actions of the Respondents. V. LEGAL FRAMEWORK 55. While the IHSS program is jointly operated by the DHCS and CDSS, CDSS is the entity responsible for the day-to-day management of IHSS in compliance with state and federal laws. (Welf. & Inst. Code 10600, 10604(d), 10553, 12301, 12301.1 and 12302.) The CDSS promulgated regulations to implement these statutes. 56. The IHSS program enables aged, blind or individuals with physical and\/or mental impairments who are unable to perform certain vital services for themselves and who cannot safely remain in their homes of their choosing unless these services are provided for them by others. (Welf. & Inst. Code 12300, et. seq.) Protective Supervision is one service available in the IHSS Program. 57. Protective Supervision consists of monitoring the behavior of non-self-directing, confused, mentally impaired, or mentally ill persons. (Welf. & Inst. Code 12300 and CDSS Manual of Policies and Procedures [MPP] 30-757.17.) Protective Supervision is available for \”observing recipient behavior in order to safeguard the recipient against injury, hazard, or accident.\” (MPP 30- 757.171.) To be eligible for such services, an individual must show \”that twenty-four hour need exists … and that the recipient can live at home safely if protective supervision is provided. (MPP 30-757.173.) 58. When assessing a minor for IHSS services, the county must assess for Protective – 18 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Supervision eligibility. (Welf. & Inst. Code 12300(d)(4), 12301.1, 12309; MPP 30-756.1, 756.2, 761.261.) A minor child is eligible for Protective Supervision if the need for supervision is greater than what is needed for a non-disabled child of the same age. (Welf. & Inst. Code 12301(a), 12301.1, MPP 30-756.372.) The county must review the child’s mental functioning on an individualized basis and must not presume a minor of that age has a mental functioning that allows the child to perform an age appropriate function without human assistance. A minor must not be denied protective supervision based solely on age because the minor has had no injuries at home due to the mental impairment, as long as the minor has the potential for injury by having the physical ability to move about the house. (Welf. & Inst. Code 12300, 12301.1, MPP 30-761.26, 30- 763.1.) 59. When action is taken regarding the amount of IHSS services, due process requires that Respondents must send IHSS applicants or recipients a NOA. (Welf. & Inst. Code 12300.2) The purpose of the NOA is to provide sufficient information to allow the individual to determine what the issue is, understand the action to be taken and if the individual does not agree, the individual has a right to request an administrative hearing to review the county’s determination. (California Constitution Article I, Section 7(a) and MPP 22-001(a)(1).) 60. The Due Process Clause of the California Constitution Article I, Section 7(a) requires that the NOA provide adequate explanation for its reasons in order to avoid arbitrary actions by government agencies. NOAs must contain sufficient recipient-specific facts explaining and justifying the intended actions, and inform Protective Supervision applicants and recipients regarding what information or action is needed to reestablish eligibility or determine the correct amount of aid. – 19 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 61. Consistent with the Due Process Clause of the California Constitution Article I, Section 7(a), Respondent CDSS adopted formal regulations, Division 22 of the Manual of Policies and Procedures, which govern the state administrative hearing process for all public social services programs, including In-Home Supportive Services. These regulations define what constitutes an adequate NOA for purposes of meeting the due process rights of individuals applying for or receiving public social services benefits. An adequate NOA is defined as [A] written notice informing the claimant of the action the county intends to take, the reasons for the intended action, the specific regulations supporting such action, an explanation of the claimant’s right to request a state hearing, and if appropriate, the circumstances under which aid will be continued if a hearing is requested. . . .. (CDSS Manual of Policies and Procedures 22-001(a)(1).) 62. The NOA must inform the claimant regarding what information or action, if any, is needed to reestablish eligibility or determine a correct amount of aid and shall include information concerning the recipient’s circumstances used to make the determination and shall cite the regulations supporting the action. (MPP 10-116.42, 22-071.1, 22-071.13 and 22-071.6) 63. Each applicant or recipient of IHSS services must receive an adequate written notice of any action that the county welfare agency proposes to take with respect to a claim for services. (Welf. and Inst. Code 12300.2, 12301.5 and MPP 10-116; 30-759.7 and 30-763.8). 64. In addition to including a description of each specific task authorized and the number of hours allotted the notice must clearly inform the individual regarding what information or action, if any, is needed to reestablish eligibility or determine a correct amount of aid so that the individual is able to understand if there is something the can be done in response to the NOA to stop or change the county’s proposed action. (42 C.F.R. 431.210; MPP 22-071.1; 22-071.13 and 22-071.6.) The NOA must also include facts concerning the recipient’s circumstances which have been used to make the determination and shall cite the regulations which support the action. (42 C.F.R. – 20 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 431.210; MPP 10-116.42.) For minors, the NOA must comply with the provisions of Welf. & Inst. Code 12300(d)(4); 12301.1; 12309(b)(1)(2)(c); MPP 30-756.1; 30-756.2; and 30-761.261.). 65. Respondent CDSS manages the IHSS Program statewide by using the Case Management, Information and Payrolling System (CMIPS). (Welf. & Inst. Code 12302.2) CMIPS includes generating NOAs for all 58 counties. Counties enter numerical values and provide only a short, individualized explanation in the NOA. 66. The CDSS regulations mandate that a public social services claimant, including In-Home Supportive Services claimant, who decides to challenge a county’s action or inaction must request an administrative hearing within 90 days of the date of the adequate NOA in order to establish jurisdiction for the hearing. (Welf. & Inst. Code 10951; MPP 22-009.) 67. When an adequate NOA is required but not provided any hearing request shall be deemed to be a timely hearing request. (MPP 22-009.11.) If the NOA is not adequate and\/or language compliant, any hearing requested (including an otherwise untimely hearing request) shall be deemed a timely hearing request. (MPP 22-009.1) The fact that the individual knows, or should have known of the action does not start the 90-day time limit. (Morales v. McMahon (1990) 223 Cal.App.3d 184.) FIRST CAUSE OF ACTION (Respondents’ Protective Supervision Notices of Action Are Not Legally Adequate) (Petition for Writ of Mandate, Code Civ. Proc. 1085) 68. Petitioners reallege and incorporate herein by reference each allegation set forth above as fully set forth herein. 69. Respondents maintain a policy and practice that IHSS Program notices of action do not have to meet the legal adequacy standard. (Exhibit 2, Director’s Alternate Decision, p. 7.) This policy and practice violates the Due Process Clause of the California Constitution Article I, Section – 21 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7(a), Welfare and Institutions Code 12300.2, 12301.5; MPP 10-116; 30-759.7 and 30-763.8). and Morales v. McMahon (1990) 223 Cal.App.3d 184.) 70. Petitioners have requested that Respondents modify the IHSS Protective Supervision NOAs to meet the requirements of the statutory and regulatory requirements. Respondents have refused to meaningfully comply with their requests. 71. The IHSS Protective Supervision NOAs that Respondents issue do not meet the standards for an adequate written NOA. (MPP 22-001(a)(1); 22-071.1; 22-071.13 and 22-071.6) 72. The notices sent to Petitioners do not provide (1) client-specific information as to why the minor is not eligible for Protective Supervision (2) a non-technical explanation of the concept of Protective Supervision , (3) an explanation of the action, if any, to be taken to establish eligibility or determine a correct amount of aid and (4) the specific regulations that were relied upon to determine Protective Supervision was not needed. 73. Respondents have a clear, present and ministerial duty pursuant to Welfare and Institutions Code Section 12300.2 to use written NOAs that meet the standards established by CDSS regulations and Welfare and Institutions Code Section 12300.2. 74. At all times relevant to this action, Respondents have had the ability to fulfill their duties under the law by issuing adequate NOAs for Protective Supervision. 75. Written demand was made upon all of the Respondents to perform their duties. Despite this demand, Respondents have failed and refused to perform their duties to only utilize legally adequate written NOAs for IHSS Protective Supervision purposes. 76. Petitioners are beneficially interested in Respondents’ performance of their duties. 77. Petitioners have no plain, speedy, and adequate remedy in the ordinary course of law. SECOND CAUSE OF ACTION Respondents’ Policy Violate the Due Process Clause of the California Constitution) – 22 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Petition for Writ of Mandate, Code Civ. Proc. 1085) 78. Petitioners reallege and incorporate herein by reference each allegation set forth above as fully set forth herein. 79. The California Constitution Article 1, Section 7(a) provides that a person may not be denied due process of the law. Governmental agencies are prohibited from acting arbitrarily to cause grievous losses even where their discretion is unbridled. The very essence of arbitrariness is to have one’s status redefined by the state without an adequate explanation for its reasons for doing so. (People v. Ramirez (1979) 25 Cal.3d 260, 266-267.) 80. NOAs that meet the requirement of due process must be sufficiently detailed and specific to enable a meaningful response. Vague and generic reasons for adverse agency action, rather than specific individualized facts supporting the agency’s conclusion do not meet due process standards. Petitioners need only identify a statutorily conferred interest to trigger due process in California. (Ryan v. California Interscholastic Federation-San Diego Section (2001) 94 Cal.App.4th 1048, 1071.) 81. Respondents’ policy that IHSS Protective Supervision NOAs are not required to meet due process standards results in NOAs being issued that are vague and provide no specific details as to reasons and basis for the action that the government plans to take. 82. This policy denies IHSS Protective Supervision applicants and recipients their right to receive NOAs that meaningfully detailed and accurately describe the proposed county action. This prevents Petitioners and others similarly situated from having adequate information about their claim. Respondents have no compelling interest that justifies this arbitrary denial of constitutionally, statutorily and regulatory required information. As such, Respondents’ policy denies due process to applicants and recipients of IHSS Protective Supervision. – 23 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 83. At all times relevant to this action, Respondents have had the ability to fulfill their duties under the law by issuing adequate NOAs for Protective Supervision. 84. Written demand was made upon all of the Respondents to perform their duties. Despite this demand, Respondents have failed and refused to perform their duties to only utilize legally adequate written NOAs for IHSS Protective Supervision purposes. 85. Petitioners are beneficially interested in Respondents’ performance of their duties. 86. Petitioners have no plain, speedy, and adequate remedy in the ordinary course of law. 87. Petitioners are entitled to a writ of mandate, pursuant to Code of Civil Procedure 1085, in that the respondents have a clear, present and ministerial duties, pursuant to Welfare and Institutions Code 12300.2; 12301.5; and MPP 10-116; 22-001(a)(1); 22-071.1; 22-071.13; 22- 071.6; 30-759.7; and 30-763.8 to adopt NOAs that meet the due process standards under the California Constitution. THIRD CAUSE OF ACTION (Respondents’ Protective Supervision Notices of Action Are Not Legally Adequate) (Declaratory Relief Code Civ. Pro. Sec. 1060) 88. Petitioners reallege and incorporate herein by reference each allegation set forth above as fully set forth herein. 89. Unless restrained and enjoined by this Court, respondents will continue to use notices of action that do not meet the standards of an adequate NOA re IHSS Protective Supervision benefits. This policy will deny applicants and recipients of IHSS protective supervision notice of client- specific reasons why protective supervision was denied or decreased in violation of the Due Process Clause of the California Constitution Article I, Section 7(a); Welfare & Institutions Code 12300.2, 12301.5; MPP 10-116; 22-001(a)(1); 22-071.1; 22-071.13; 22-071.6; 30-759.7 and 30- 763.8. Because respondents’ conduct is ongoing and continuous, declaratory relief is appropriate. – 24 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 90. As a result of respondents’ unlawful conduct, petitioners are likely to suffer irreparable harm, and thus immediate relief is appropriate. 91. Petitioners are entitled to declaratory relief against all respondents under Code of Civil Procedure 1060 in that respondents’ policy as set forth above violates the Welfare & Institutions Code and lawfully enacted regulations. Respondents contend to the contrary. FOURTH CAUSE OF ACTION (Director’s Alternate Decision in Decision # 2016112009 Must Be Reversed As the Notices of Action Are Not Legally Adequate.) (Writ of Administrative Mandamus, Code Civ. Proc. Sec. 1094.5) 92. Petitioner Karen Koens realleges and incorporates by reference each allegation set forth above as fully set forth herein. 93. Petitioner is authorized under Welfare and Institutions Code Section 10962 to file a petition with this court under the provision of the Code of Civil Procedure Section 1094.5, praying for a review of the Director’s Alternate Decision in Hearing # 2016112009. 94. Respondents Lightbourne and Kent prejudicially abused their discretion and proceeded in a manner not authorized by law in adopting Director’s Alternate Decision in Hearing # 2016112009. The March 12, 2014 Notice does not meet the requirements of CDSS own regulations for an adequate notice or the Due Process Clause of the California Constitution Article I, Section 7(a). (MPP 10-116; 22-001(a)(1); 22-009; 30-759.7; and 30-763.8.) The Notice states that the County denied the February 6, 2014 IHSS application because you did not tell us enough information to determine if you can get services and cited MPP 30-760.1. This explanation does not give the client-specific information necessary to allow the individual to determine what the issue is, understand the action to be taken and if the individual does not agree, the individual has a right to request an administrative hearing to review the county’s determination. Specifically, the Notice – 25 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 does not identify the information that the County needs to get services or to identify which services the Notice references. 95. Petitioner Koens has exhausted all available administrative remedies that she is required to pursue. There is no other plain, speedy, and adequate remedy in the ordinary course of the law other than the relief sought in this petition. A writ of administrative mandamus is the sole and exclusive remedy for the review of Respondent’s decision pursuant to Welfare and Institutions Code Section 10962 and Code of Civil Procedure Section 1094.5. FIFTH CAUSE OF ACTION (Director’s Alternate Decision in Decision # 2016256251 Must Be Reversed Because the Notices of Action Are Not Legally Adequate.) (Writ of Administrative Mandamus, Code Civ. Proc. Sec. 1094.5) 96. Petitioner Landeros-Martinez realleges and incorporates herein by reference each allegation set forth above as fully set forth herein. 97. Petitioner is authorized under Welfare and Institutions Code Section 10962 to file a petition with this court under the provision of the Code of Civil Procedure Section 1094.5, praying for a review of the Director’s Alternate Decision in Hearing # 2016256251. 98. The Director’s Alternate Decision # 2016256251 is a prejudicial abuse of discretion and is contrary to law because this decision violates lawful statutes, Respondent’s regulations and the Due Process Clause of the California Constitution Article I, Section 7(a). The notices of action issued to E.M. fail to meet the due process requirements in that the notices of action do not provide client- specific information why Protective Supervision was denied that is sufficient to allow the individual to determine the issue, provide a nontechnical explanation of the concept of Protective Supervision, cite to the specific regulation that supports the action or clearly inform Petitioner regarding what information or action, if any, is needed to reestablish eligibility or determine a correct amount of aid so that the individual is able to understand if there is something the can be done in response to the – 26 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOA to stop or change the county’s proposed action. (42 C.F.R. 431.210; MPP 22-071.1; 22- 071.13 and 22-071.6.) 99. Additionally, the Director’s Alternate Decision # 2016256251 is a prejudicial abuse of discretion and is contrary to law because the notices of action do not meet the standards for an adequate NOA as set forth in CDSS’ MPP 10-116; 22-001(a)(1); 22-009; 30-759.7; and 30- 763.8.) 100. Further, Respondent Lightbourne prejudicially abused his discretion and proceeded in a manner not authorized by law in adopting Director’s Alternate Decision # 2016256251 because he lacked the legal authority to deny jurisdiction by evaluating only one NOA for adequacy instead of reviewing all seven notices sent to Petitioner by Sonoma County. (See Director’s Alternate Decision, p. 6.) Each NOA must be individually evaluated for adequacy. 101. Petitioner Landeros-Martinez has exhausted all available administrative remedies that she is required to pursue. She has no other plain, speedy, and adequate remedy in the ordinary course of the law other than the relief sought in this petition. A writ of administrative mandamus is the sole and exclusive remedy for the review of Respondents’ decision pursuant to Welfare and Institutions Code 10962 and Code of Civil Procedure 1094.5. \/\/ \/\/ \/\/ SIXTH CAUSE OF ACTION (Decision # 2017060421 Must Be Reversed Because the Notices of Action Are Not Legally Adequate.) (Writ of Administrative Mandamus, Code Civ. Proc. Sec. 1094.5) – 27 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 102. Petitioner Pierson realleges and incorporates herein by reference each allegation set forth above as fully set forth herein. 103. Petitioner is authorized under Welfare and Institutions Code Section 10962 to file a petition with this court under the provision of the Code of Civil Procedure Section 1094.5, praying for a review of the Decision in Hearing # 2017060421. 104. Decision # 2017060421 is a prejudicial abuse of discretion and is contrary to law because this decision violates lawful statutes, Respondent’s regulations and the Due Process Clause of the California Constitution Article I, Section 7(a) pertaining to what constitutes an adequate notice of action. The five notices of action issued to Ms. Pierson between August 2013 through September 30, 2016 fail to meet the due process requirements for an adequate NOA as set forth in CDSS’ MPP 10-116; 22-001(a)(1); 22-009; 22-071.1; 22-071.13; 22-071.6; 30-759.7; and 30- 763.8; 42 C.F.R. 431.210 and the Due Process Clause of the California Constitution Article 1, Section 7(a). 105. The five NOAs individually do not meet the standard for an adequate notice. None of the notices provide client-specific information why Protective Supervision was denied that is sufficient to allow the individual to determine the issue; provide a nontechnical explanation of the concept of Protective Supervision; or cite to the specific regulation that supports the action or clearly inform Petitioner regarding what information or action, if any, is needed to reestablish eligibility or determine a correct amount of aid so that the individual is able to understand if there is something the can be done in response to the NOA to stop or change the county’s proposed action. 106. Further, Respondent Lightbourne prejudicially abused his discretion and proceeded in a manner not authorized by law in failing to consider whether the principle of equitable estoppel should be applied to find jurisdiction to hear the merits of the case. During the hearing, Los Angeles – 28 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 County admitted that the county did not conduct a reassessment of A.M.’s IHSS needs in 2014. (Decision, p. 2.) A.M.’s father testified that that they trusted the county, who informed them that their son was not eligible for protective supervision. . . thus relying to their detriment by not requesting an administrative hearing. (Decision, p. 4.) As claimant was not represented, the ALJ had a duty to evaluate whether equitable estoppel should be applied to find jurisdiction to hear the merits of the case. 107. Petitioner Pierson has exhausted all available administrative remedies that she is required to pursue. She has no other plain, speedy, and adequate remedy in the ordinary course of the law other than the relief sought in this petition. A writ of administrative mandamus is the sole and exclusive remedy for the review of Respondents’ decision pursuant to Welfare and Institutions Code 10962 and Code of Civil Procedure 1094.5 PRAYER FOR RELIEF WHEREFORE, Petitioners requests that this Court: 1. Issue a preemptory writ of mandate pursuant to Code of Civil Procedure section 1085 ordering Respondents to prepare and issue for immediate use new notices of action concerning the approvals for, denials of and decreases\/increases in protective supervision that comply with the requirements of federal and state law, federal and state regulations MPP 10-116; 22-001(a)(1); 22- 071.1; 22-071.13; 22-071.6; 30-759.7 30-763.8. 2. Issue a preemptory writ of mandate pursuant to Code of Civil Procedure section 1085 ordering Respondents to prepare and issue for immediate use new notices of action concerning the approvals for, denials of and decreases\/increases in protective supervision that comply with the requirements of the Due Process clause of the California Constitution. – 29 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. Declare that respondents’ policy and practice that IHSS Program notices of action do not have to meet the legally adequate standard is incorrect and violate Welfare and Institutions Code 12300.2, 12301.5 and MPP 10-116; 22-001(a)(1) 22-071.1; 22-071.13 and 22-071.6 30-759.7 and 30-763.8. 4. Issue a writ of administrative mandamus ordering Respondent to set aside Director’s Alternate Decision Number # 2016256251 and reinstate the Proposed Decision remanding the case to Sonoma County to assess the child E.M. for Protective Supervision from the time of her initial application in September 2010 through October 29, 2016 and provide benefits as otherwise eligible. 5. Issue a writ of administrative mandamus ordering Respondent to set aside Director’s Alternate Decision Number # 2016112009 and reinstate the Proposed Decision remanding the case to Santa Cruz County to approve M.K. for Protective Supervision and other IHSS in the amount of 227:20 effective February 6, 2014 onward until the date of the 2016 assessment. \/\/ \/\/ \/\/ 6. Issue a writ of administrative mandamus ordering Respondent to set aside Decision Number # 202017060421 and remanding the case to for a hearing on the merits. – 30 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7. Award Petitioners: (a) Costs of suit; and (b) Reasonable attorney fees in this action; and 8. Order such other and further relief as the Court deems just and proper. Dated: May 1, 2018 Respectfully submitted, _____________________________ GRACE A. GALLIGHER Attorney for Petitioners Karen Koens, Vanessa Landeros-Martinez and Marcella Pierson VERIFICATION I, GRACE A. GALLIGHER, am the attorney for Petitioners Karen Koens, Vanessa Landeros- Martinez and Marcella Pierson. Said Petitioners are absent from the county where I maintain my – 31 FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 office. I make this verification for and on behalf of the Petitioners for that reason. I am informed and believe and on that ground allege that the matters stated in the foregoing document are true. Executed on May 1, 2018 at Sacramento, Sacramento County, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. ______________________________ GRACE A. GALLIGHER Attorney for Karen Koens, Vanessa Landeros- Martinez and Marcella Pierson ”

pdf Lilley v. County of Alameda – Complaint for Injunctive and Declaratory Relief 2015-09-29

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Lilley v. County of Alameda – Complaint for Injunctive and Declaratory Relief 2015-09-29.pdf

” Case3:15-cv-04475 Document1 Filed09\/29\/15 Page1 of 15 1 LAUREN HANSEN (SBN 268417) PATTI PRUNHUBER (SBN 277439) 2 MICHAEL RAWSON (SBN 95868) THE PUBLIC INTEREST LAW PROJECT 3 449 15th Street, Suite 301 Oakland, CA 94612 4 Telephone: (510) 891-9794 Fax: (510) 891-9727 5 Email: [email protected] 6 STEPHANIE HAFFNER (SBN 194192) ROBERT D. NEWMAN (SBN 86534) 7 WESTERN CENTER ON LAW & POVERTY 449 15th Street, Suite 301 8 Oakland, CA 94612 Telephone: (213) 235-2617 9 Fax: (510) 251-0600 Email: [email protected] 10 PILLSBURY WINTHROP SHAW PITTMAN LLP 11 THOMAS V. LORAN III (SBN 95255) ELAINE LEE (SBN 293452) 12 STACIE 0. KINSER (SBN 300529) PHILIP SHECTER (SBN 300661) 13 Four Embarcadero Center, 2211d Floor San Francisco, CA 94111 14 Telephone: (415) 983-1000 Fax: (415) 983-1200 15 Email: thomas.loran@pillsburylaw .com 16 Attorneys for Plaintiffs and the Plaintiff Class 17 UNITED STATES DISTRICT COURT 18 NORTHERN DISTRICT OF CALIFORNIA 19 DONALD RAY LILLEY, JARVIS Case No.: 20 JOHNSON, and DANIEL MALLORY, individually and on CLASS ACTION 21 behalf of all others similarly situated, 22 23 Plaintiffs, vs. COUNTY OF ALAMEDA; BOARD 24 OF SUPERVISORS OF ALAMEDA COUNTY; ALAMEDA COUNTY 25 SOCIAL SERVICES AGENCY; and LORI COX, in her official capacity as 26 Director of the Alameda County Social Services Agency, 27 28 Defendants. COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF (Fed. R. Civ. P. 23(b)(2)) CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 4814-6954-0649.vl Case3:15-cv-04475 Document1 Filed09\/29\/15 Page2 of 15 1 2 1. INTRODUCTION Plaintiffs Donald Ray Lilley, Jarvis Johnson, and Daniel Mallory bring this 3 action individually and on behalf of a class of persons (the \”Class\” or the \”Plaintiff Class\”) 4 consisting of all current and future applicants for regular and expedited CalFresh (Food 5 Stamp) benefits from defendant Alameda County (\”Alameda County\” or the \”County\”). 6 This suit challenges Alameda County’s widespread failure to timely detennine eligibility 7 for CalFresh (Food Stamp) benefits. The ongoing and persistent failure and\/or refusal of 8 the named Defendants to ensure, on a county-wide basis, the processing of CalFresh 9 applications within the time limits mandated by federal and state law has resulted and 10 continues to result in substantial delays in providing CalFresh benefits to thousands oflow- 11 income households in Alameda County critically in need of this assistance to help them 12 feed themselves and their families and provide them with adequate food and nutrition. 13 Indeed, the County’s failure to comply with federal and state mandated timelines has 14 resulted in a backlog of 10,657 pending applications as of July 2015. As a result, needy 15 Alameda County residents are facing undernutrition and hunger, homelessness, and serious 16 health risks. 17 2. CalFresh applications must be processed, and benefits issued to those 18 eligible, as soon as possible, but no later than 30 days after the date a person submits an 19 application. 7 U.S.C. 2020(e)(3); 7 C.P.R. 273.2(a), (g)(1), (3); Cal. Welf. & Inst. Code 20 18911(a). Applicants in emergency situations with very low-income and few resources 21 may qualify for expedited food stamps. 7 U.S.C. 2020(e)(9); 7 C.P.R. 273.2(i); MPP 22 63-301.51. 1 The County must issue these benefits to eligible persons within three 23 calendar days. Cal. Welf. & Inst. Code 18914(b) (implementing 7 C.P.R. 273.2(i)); 24 MPP 63-301.531(a)). 25 26 27 28 \”MPP\” refers to the California Depmiment of Social Services’ Manual of Policies and Procedures containing the CalFresh regulations. The MPP or Manual is found at: http:\/\/www.dss.cahwnet.gov\/ord\/PG303.htm (last visited September 24, 2015). – 2- CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 4814-6954-0649.vl Case3:15-cv-04475 Document1 Filed09\/29\/15 Page3 of 15 1 3. In violation of these mandates, Alameda County is processing regular and 2 emergency applications well beyond the respective 30-day and tlu\u00b7ee-day time limits. In 3 July 2015, the most recent month for which data are publicly available, 24.7% of all regular 4 (30-day) CalFresh applications were decided late due to County delay. Meanwhile, 5 applications for emergency assistance are processed late at least 13% of the time and 6 County policies ensure that the actual rate of late payment of emergency benefits is far 7 greater. 8 4. Plaintiff Donald Ray Lilley has been waiting for 52 days for the County to 9 process his application and without the CalFresh benefits, is not getting enough food to eat. 10 In desperate need of food, on September 21, 2015, Plaintiff Jarvis J olmson filed a request 11 for expedited service on his CalFresh application. Eight calendar days later, the County has 12 not yet issued a decision or benefits. This delay is five days longer than the California- and 13 federal-mandated timeframe. Plaintiff Daniel Mallory’s application for expedited food 14 stamps has been lingering unprocessed for 25 days and the County still has not issued him 15 benefits. All tlu\u00b7ee Plaintiffs are eligible for food stamps, and in all three circumstances, the 16 County unlawfully delayed the processing of their applications and issuance of benefits. 17 5. The County has a longstanding policy, pattern, practice, and custom of 18 failing and refusing to timely process CalFresh applications. Plaintiffs therefore seek 19 declaratory and preliminary and permanent injunctive relief on behalf of themselves and, in 20 accordance with Fed. R. Civ. P. 23(a) and 23(b)(2), on behalf of the Class of similarly 21 situated CalFresh applicants, to remedy Defendants’ violations of their rights under federal 22 and state law and to enjoin Defendants’ failure and\/or refusal to process CalFresh 23 applications, and to provide CalFresh benefits to eligible applicants, on a timely basis. 24 25 26 6. JURISDICTION This Court has jurisdiction over the subject matter of this action pursuant to 27 28 U.S.C. 1331 and 1367. Plaintiffs’ action for declaratory and injunctive relief is 28 authorized by 28 U.S. C. 1343, 2201, and 2202 and by Fed. R. Civ. P. 57 and 65. – 3 – CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 4814-69 54-0649. vI Case3:15-cv-04475 Document1 Filed09\/29\/15 Page4 of 15 1 7. Plaintiffs’ claim for violations of California state law concems the same 2 actions and omissions that form the basis of Plaintiffs’ claim under federal law such that the 3 California state law claim is part of the same case or controversy. This Court therefore has 4 supplemental jurisdiction over the Califomia state law claim pursuant to 28 U.S.C. 1367. 5 6 7 8. VENUE AND INTRADISTRICT ASSIGNMENT Venue is proper pursuant to 28 U.S.C. 1391(b) because a substantial part 8 of the events or omissions giving rise to the claims herein occurred in this District, and 9 because all Defendants named herein reside in, maintain offices in, or are responsible for 10 enforcing the laws relevant to this litigation in this District. 11 9. In accord with Local Rule 3-2 and Local Rule 3-5, this civil action should be 12 assigned to the San Francisco Division or to the Oakland Division of this Court because a 13 substantial part of the events or omissions which give rise to the claims herein have 14 occutTed and are occurring in Alameda County. 15 16 17 10. RIGHT OF ACTION Title 42 of the United States Code, 1983 confers a right of action to 18 enforce the federal statutes cited herein. California Code of Civil Procedure 1085 confers 19 a right of action to enforce the California state statutes cited herein. 20 21 22 11. PARTIES Plaintiff Donald Ray Lilley is a resident of the City of Livermore, in the 23 County of Alameda and brings this action both individually and on behalf of the Plaintiff 24 Class. 25 12. Plaintiff Jarvis J olmson is a resident of the City of Oakland, in the County of 26 Alameda and brings this action both individually and on behalf of the Plaintiff Class. 27 13. Plaintiff Daniel Mallory is a resident of the City of Berkeley, in the County 28 of Alameda and brings this action both individually and on behalf of the Plaintiff Class. -4- CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 4814-6954-0649.vl Case3:15-cv-04475 Document1 Filed09\/29\/15 Page5 of 15 1 14. Alameda County is a political body of the State of California and, pursuant 2 to federal and state law, is required to oversee and monitor the Social Services Agency. 3 15. Defendant Board of Supervisors of Alameda County (the \”Board of 4 Supervisors\”) is the legislative body charged by law with managing the County 5 govenm1ent. 6 16. Defendant Alameda County Social Services Agency (the \”Agency\”) is the 7 local public agency responsible for administering Alameda County’s CalFresh program 8 within the County, including ensuring timely processing of CalFresh applications. 9 17. Defendant Lori Cox is the Director of the Agency. Plaintiffs sue Ms. Cox in – 10 her official capacity only. Ms. Cox is responsible for the enforcement, operation, and 11 execution of laws pertaining to the Agency’s administration of the CalFresh program, 12 including the timely processing of CalFresh applications. 13 18. At all relevant times, all four of the named Defendants were, are, and have 14 been acting in concert with respect to the administration of the CalFresh program such that 15 each such Defendant is, was, and has been at all relevant times acting as the agent of each 16 of the other Defendants with reference to the matters alleged herein. To obtain complete 17 relief and to avoid the need for the filing of a multiplicity of legal actions, Plaintiffs and the 18 Class have sued all four of the named Defendants herein for declaratory and injunctive 19 relief. 20 21 22 19. FACTS PERTAINING TO EACH NAMED PLAINTIFF Plaintiff Donald Ray Lilley is disabled and has a cunent application pending 23 for Supplemental Security Income (SSI). He cunently receives General Assistance 24 benefits. After paying rent, he does not have enough money left to pay for food with his 25 meager public assistance grant. While waiting for food stamps, there have been days when 26 he does not have enough to eat and he has experienced health problems due to poor 27 nutrition. Mr. Lilley applied for CalFresh benefits on August 7, 2015. The County sent 28 – 5- CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 4814-6954-0649.vl Case3:15-cv-04475 Document1 Filed09\/29\/15 Page6 of 15 1 him just one notice, informing him that his caseworker has changed. As of the date of 2 filing of this complaint, the County has not issued him the benefits to which he is entitled. 3 20. Plaintiff Jarvis Johnson is a 53-year old man with disabilities. He receives 4 General Assistance benefits of $336 per month. After paying for rent and utilities, he has 5 $10 to survive on per month. Desperately needing additional assistance, he applied for 6 CalFresh benefits on September 10, 2015. After learning he was eligible for expedited 7 benefits, Mr. Jolmson requested expedited Food Stamps from the County on September 21, 8 2015. More than one week later, the County still has not issued Mr. Jolmson benefits. 9 21. Plaintiff Daniel Mallory is unemployed; after losing a job for which he is 1 0 owed unpaid wages. Without any income to pay for food, he applied for expedited 11 CalFresh with the County on September 3, 2015. Despite providing identification and 12 indicating that his housing costs exceed his income and resources combined, the County has 13 not issued him expedited food stamps. Twenty-five days later, he is still waiting for 14 expedited CalFresh assistance. 15 16 17 22. CLASS DEFINITION AND CLASS ACTION ALLEGATIONS Plaintiffs Donald Ray Lilley, Jarvis Johnson, and Daniel Mallory seek to 18 represent the Class consisting of current and future applicants for CalFresh (Food Stamp) 19 benefits from Alameda County. As such, this action is maintainable as a class action 20 pursuant to Rule 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. 21 23. The requirements of Rule 23(a)(1) are met in that the Class is so numerous 22 that joinder of all members is impracticable. According to data reported by the County to 23 the California Department of Social Services (\”CDSS\”), the number of new applicants for 24 CalFresh benefits has exceeded 3,900 in each month of 2015. The County’s most recent 25 reported data show that as of the end of July 2015, 10,657 applications are pending with no 26 decision rendered. The Class is also fluctuating, in that as they apply for benefits, new 27 people regularly will qualify to be members of the Class. 28 – 6 – CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 4814-6954-0649.vl Case3:15-cv-04475 Document1 Filed09\/29\/15 Page7 of 15 1 24. In accordance with the requirements of paragraph (2) of Fed. R. Civ. P. 2 23(a), members of the Class share common issues of law and fact, including whether 3 Alameda County has a policy, pattem, practice, and custom of failing and\/or refusing to 4 process regular and expedited CalFresh (Food Stamp) applications within statutorily 5 mandated time periods and whether any such policy, pattem, practice, or custom violates 6 federal or state law. 7 25. The claims of the named Plaintiffs are typical of the claims of the class they 8 represent (within the meaning of paragraph (3) of Rule 23(a)). Plaintiff Donald Ray Lilley 9 applied for food stamps and has experienced a lengthy and unlawful delay by the County in 1 0 the processing of his application and issuance of benefits. Plaintiffs Jarvis Johnson and 11 Daniel Mallory applied for and are eligible for expedited food stamps, and both have 12 experienced the County’s failure to timely process their applications, going without the 13 prompt emergency assistance to which they are entitled. 14 26. In accordance with paragraph (4) of Fed. R. Civ. P. 23(a), Plaintiffs will 15 fairly and adequately protect the interests of the Class. Plaintiffs know of no conflict of 16 interest between any of themselves and the Class or any Class members and are likewise 17 unaware of any conflict of interest between or among any of the Class members. 18 27. Plaintiffs are represented by experienced counsel who will adequately 19 represent the interests of the Class. 20 28. Defendants have acted, and continue to do so, on grounds generally 21 applicable to the Class that Plaintiffs represent, thereby rendering appropriate injunctive 22 and declaratory relief for the Class as a whole in accordance with paragraph (2) of Fed. R. 23 Civ. P. 23(b). 24 25 26 29. STATUTORY AND REGULATORY BACKGROUND The federal Supplemental Nutrition Assistance Program (\”SNAP\”), formerly 27 known as the Food Stamp Program, was initiated in 1964 pursuant to the Food Stamp Act 28 – 7- CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 4814-6954-0649.v I Case3:15-cv-04475 Document1 Filed09\/29\/15 Page8 of 15 1 (the Act).2 The express purpose of SNAP is to \”safeguard the health and well-being ofthe 2 Nation’s population by raising levels of nutrition among low-income households.\” 3 7 U.S.C. 2011. SNAP provides federally-funded benefits to eligible low-income 4 households to help them purchase food. Id. 2011 et seq. 5 30. SNAP is administered nationally by the United States Department of 6 Agriculture (\”USDA\”), which is responsible for issuing regulations consistent with the Act. 7 Id. 2013(a), (c). States that patiicipate in the program designate a state agency to 8 administer the program at the state level. Id. 2012(t). State agencies must administer the 9 program in compliance with the Act and its implementing regulations. Id. 2020(e). 10 31. In California, CDSS is the designated state agency responsible for 11 administering SNAP. California has delegated the operation of its food stamp program to 12 county governments, and each county welfare depmiment must administer the Food Stamp 13 program, in accordance with CDSS rules and regulations. Cal. Welf. & Inst. Code 14 10604-10605, 18902. California has named its SNAP program \”CalFresh.\” 15 32. To be financially eligible for CalFresh, a household, defined as a group of 16 people who purchase and prepare food together, must have income below 100% of the federal 17 poverty level after deductions that account for housing, dependent care, and medical expenses, 18 among other exclusions and deductions. 7 U.S.C. 2014(c)(1). As of2015, that figure for a 19 family of three is $20,090 per year or $1,675 per month. Id.; 80 Fed.Reg. 3236-37 (Jan. 22, 20 2015). Eligible households that do not have a member who is over age 60 or who is 21 considered disabled must also have income, prior to deductions, less than 200% of the federal 22 poverty level. 7 U.S.C. 2014(a), (c)(2); 7 C.F.R. 273.2(j)(2)(C); Cal. Welf. & Inst. Code 23 18901.5; All County Letter (ACL) 14-56 (August 22, 2014) at page 2. This amount is 24 currently $40,180 per year or $3,349 monthly for a family of tlu\u00b7ee. See 80 Fed. Reg. 25 3236-37. 26 27 28 2 On June 18, 2008, Congress amended the Food Stamp Act by renaming the Food and Nutrition Act of2008. Pub. L. No. 110-246, 4001. – 8 – CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 4814-6954-0649.vl Case3:15-cv-04475 Document1 Filed09\/29\/15 Page9 of 15 1 33. Pursuant to federal law, counties must process food stamp applications and 2 issue benefits to those eligible no later than 30 days after the date of application. 7 U.S.C. 3 2020(e)(3); 7 C.P.R. 273.2(a), (g)(l), (3). 4 34. Under federal law, expedited food stamps benefits must be provided no later 5 than seven days following the date of application when eligible applicants have extremely 6 low income and resources or cannot meet their monthly housing expense. 7 U.S.C. 7 2020(e)(9); 7 C.P.R. 273.2(i)(1), (i)(3)(i). Federal law pem1its a state to adopt a sh01ier 8 time frame, and Califomia has done so-benefits must be issued to households eligible for 9 expedited service within three calendar days of application. Cal. Welf. & Inst. Code- 10 18914(b ); Califomia Depatiment of Social Services Manual of Policies and Procedures 11 (MPP) 63-300.1. 12 35. State law futiher mandates that aid to the \”needy and distressed\” must be 13 provided \”promptly and humanely.\” Cal. Welf. & Inst. Code 10000. 14 15 16 17 STATEMENT OF FACTS County Non-Compliance with Regular CalFresh Processing Timeframes 36. CDSS requires each county in the State of Califomia to report its CalFresh 18 application statistics on a monthly basis. According to data reported by Alameda County, 19 on average 19.4% of its applications were processed late due to County delay in the past 20 year. In the most recent month for which data is available, July 2015, of the applications 21 approved, approximately 21.5% were approved late due to County delay. Of those 22 applications denied, approximately 30.5% were denied after the 30 day deadline due to 23 County delay. 24 37. The following table shows the degree of late processing over the most recent 25 twelve months for which data is available: 26 Ill 27 Ill 28 – 9- CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 4814-6954-0649.vl Case3:15-cv-04475 Document1 Filed09\/29\/15 Page10 of 15 1 Table 1 2 CDSS DF A 296- Alameda Data for Regular Processing of CalFresh Applications3 3 4 5 6 7 8 9 10 11 12 13 14 15 16 I\u00b7′ , …. \u00b7’\u00b7\u00b7\u00b7 .\u00b7\u00b7\u00b7\u00b7 ., . \u00b7 \u00b7\u00b7” \u00b7 \u00b7 \u00b7’\u00b7\u00b7\u00b7 \u00b7,\u00b7 .. \u00b7\u00b7 ‘ < { 1Vl~n't11 .. , .... c~ \u00b7.\u00b7 .. \u00b7 I' ,.\u00b7. \u00b7\u00b7 .. \u00b7.\u00b7\u00b7 .... ,. August 2014 September 2014 October 2014 November 2014 December 2014 January 2015 February 2015 March 2015 April2015 May2015 June 2015 July 2015 12 Month A verage8 Number of Processed Applications4 3,739 3,738 4,061 3,026 3,246 3,385 3,134 3,944 3,788 3,806 4,310 4,722 3,742 Nu.lnberofL~te .\u00b7 I Perc~llta2:e of.\u00b7\u00b7\u00b7\u00b7 Number of . .. .. ;\\.nurovecl L#t~:I)~nied : Total Late . \u00b7 \u00b7\u00b7ApplicationsSo Applications

pdf Lopez v. Wagner, auto restoration of CalFresh after end of IPV penalty period

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” DORIS NG, CSB NO. 169544 AMY P. LEE, CSB NO. 203604 BAY AREA LEGAL AID 1735 Telegraph Ave. Oakland, CA 94612 Telephone: (510) 663-4744 Facsimile: (510) 663-4740 Email: [email protected] [email protected] RICHARD A. ROTHSCHILD, CSB NO. 67356 ANTIONETTE DOZIER, CSB NO. 244437 WESTERN CENTER ON LAW AND POVERTY 3701 Wilshire Boulevard, Suite 208 Los Angeles, CA 90010 Telephone: (213) 487-7211 Facsimile: (213) 487-0242 Email: [email protected] [email protected] Attorneys for Petitioner MORAYMA LOPEZ SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ALAMEDA MORAYMA LOPEZ, Petitioner, v. JOHN A. WAGNER, DIRECTOR, CALIFORNIA DEPARTMANT OF SOCIAL SERVICES; CALIFORNIA DEPARTMENT OF SOCIAL SERVICES, Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. VERIFIED PETITION FOR WRIT OF MANDATE (CODE CIV. PROC. 1085, 1094.5, AND WELF. & INST. CODE 10962) INTRODUCTION 1. The California Department of Social Services (CDSS) is the federally-mandated state agency responsible for the Food Stamp Program. CDSS, through the individual county welfare departments and their agents, is tasked with providing Food Stamp benefits to clients eligible to receive them. As part of its responsibilities, CDSS must ensure that counties issue timely benefits and review the information provided in all applications and recertifications to ensure that applicants and recipients are provided all the benefits that they are entitled to receive. See Welf. & Inst. Code 10500, 11004. 2. CDSS, however, fails to meet its responsibilities towards those who have been found ineligible to participate in the program for a period of time after committing an intentional program violation (IPV). This case challenges CDSS’s failure to ensure that counties add previously disqualified family members to the Food Stamp household the month after the ineligibility period ends. Petitioner Lopez was eligible for Food Stamp benefits after her IPV ended, but her benefits never resumed. Over the course of four years, Petitioner Lopez submitted five applications requesting Food Stamp benefits for both herself and her children. Although she received food stamps for her children, she did not receive any benefits for herself during those four years. Ms. Lopez never received a Notice of Action indicating that she was denied benefits or an explanation as to the reason for her exclusion. 3. Through this action, Petitioner seeks a Writ of Mandate ordering CDSS to administer California’s Food Stamp Program in accordance with the mandates of law. Petitioner Lopez also seeks a writ of administrative mandate overturning Respondent Wagner’s decision that her recertifications were not requests for restoration of aid. PARTIES Petitioner Morayma Lopez 4. Morayma Lopez is a 32-year-old resident of Alameda County ( County ) and a single mother of five children. Ms. Lopez is disabled due to mental health conditions, for which she has been receiving treatment since approximately 2002. Ms. Lopez was entitled to food stamp benefits from July 2004 to May 2008. Currently, she receives food stamp benefits for herself and her five children. Respondents 5. Respondent John A. Wagner is the Director of Respondent CDSS. He is sued in his official capacity. Respondent Wagner’s duties include the enforcement, operation, and execution of laws pertaining to the administration of the Food Stamp Program. Respondent Wagner’s responsibilities also include enforcing state laws and regulations to ensure that various county welfare departments (CWDs) execute the regulations in a uniform and consistent manner. Welf. & Inst. Code 10553. 6. Respondent CDSS is the single state agency responsible for overseeing the administration of California’s Food Stamp Program, and for ensuring that each county complies with state laws and regulations relating to the Food Stamp Program. In particular, Respondent CDSS is responsible for guaranteeing the timely and accurate issuance of benefits. Welf. & Inst. Code 10600; see also Welf. & Inst. Code 10603. \/\/\/ \/\/\/ APPLICABLE LAW Food Stamp Program 7. The Supplemental Nutrition Food Stamp Program is a federal nutrition program that helps eligible low-income people purchase the food they need for good health. The program’s stated purpose is to promote the general welfare and to safeguard the health and well being of the Nation’s population by raising the levels of nutrition among low-income households. 7 U.S.C. 2011, 7 C.F.R. 271.1(a). The California Legislature has mandated that California operate a statewide program to enable low-income households to receive Food Stamps under the federal Food Stamp Program. Welf. & Inst. Code 18900. To that end, the Legislature has mandated that when a person submits an application for aid, the county has a duty to review the information provided carefully to ensure that the applicant is provided all the benefits that she or he is entitled to receive. See Welf. & Inst. Code 10500, 11004. California must provide public benefits to eligible recipients promptly and humanely. Welf. & Inst. Code 10000. CDSS Responsibilities 8. In California, the Food Stamp Program is developed and supervised by CDSS. See generally, Welf. & Inst. Code 18900 et seq., specifically, 18901.5, 18901.8 & 18902. CDSS develops Food Stamp regulations and issues rules and letters related to the program. Welf. & Inst. Code 18901.8 & 18902. Although each CWD is responsible for carrying out the local administrative responsibilities set forth in Food Stamp Chapter of the Welfare and Institutions Code, local administration is subject to the supervision of [CDSS] and to rules and regulations adopted by [CDSS]. Welf. & Inst. Code 18902. The Director of CDSS is responsible for bringing actions to ensure the counties’ compliance. Welf. & Inst. Code 10600 & 10605. Duty To Timely Issue Benefits 9. Subject to certain exceptions, Food Stamps are delivered once a month, and at most every 40 days. CDSS Manual of Policies and Procedures (MPP) 63-602.4 et seq. Any delay in the delivery of benefits beyond statutory and regulatory deadlines is a violation of this statutory mandate. Welf. & Inst. Code 11004; MPP 63-601.11. After a household is determined to be eligible to receive Food Stamp benefits, the CWD must certify the household to receive benefits for a specific period of time. MPP 63-504.1. To continue to receive Food Stamp benefits thereafter, recipients must reapply for the program. The Recertification Process 10. As part of the recertification process, the county must provide a recipient with notice that his or her certification period is about to expire. Notice must be served by the end of the month preceding the termination month. MPP 63-504.251. After receiving the notice, the recipient must file a recertification application no fewer than 15 days before the expiration of the certification period listed in the notice. MPP 63-504.61(c). As part of the recertification process, the recipient must also submit a Statement of Facts. MPP 63-604.61. The CWD must complete the application process and approve or deny a timely application for recertification prior to the end of the household’s current certification period. MPP 63-504.61. If CWD fails to provide benefits in a timely manner to an eligible household that filed a timely application for recertification, then the CWD has committed an administrative error, and the household is entitled to restoration of lost benefits if, as a result of such error, the household was unable to participate for the month following the expiration of the certification period. MPP 63-504.61(j) Restoration of Benefits 11. Individuals who have committed an intentional program violation are ineligible to participate in the Food Stamp Program for a specified period of time. 7 C.F.R. 273.16 (b), MPP 20-300 et seq., 63-805.1. The rest of the household, however, remains eligible to receive benefits. 7 C.F.R. 273.16 (b)(11); MPP 20-300.35. 12. The previously excluded member who was disqualified for an intentional program violation must be added back to the food stamp household the month after the disqualification period ends. 7 C.F.R. 273.21; MPP 63-504.353(b)(1). State regulations, however, are silent as to how a person requests to be added back to the household’s grant after the disqualification period ends if the county does not automatically make the change. 13. The CWD must restore a household’s benefits if the benefits were lost due to administrative error. MPP 63-802.111. According to MPP 63-802.12, a household’s right to recoup wrongfully withheld benefits is triggered when: (a) the welfare department receives a request for restoration from the household; or (b) the welfare department is notified or otherwise discovers that a loss to a household has occurred. Benefits will be restored for only 12 months prior to the earlier date of either event listed above. MPP 63-802.12. If CWD determines that there was a loss, it will automatically restore benefits. MPP 63-802.3. Benefits will not be restored, however, if (a) through the normal course of business CWD discovers that a loss occurred more than 12 months prior to the date of discovery, or (b) that the loss occurred more than 12 months before the CWD was notified in writing or orally of a possible loss to a household. MPP 63-802.3. STATEMENT OF FACTS 14. In 2003, Morayma Lopez was receiving Food Stamp benefits for herself and three children. On June 17, 2003, she received a Notice of Action informing her that she was disqualified from receiving food stamp benefits for one year from July 1, 2003 to June 30, 2004 due to an IPV. She continued to receive benefits, however, for her children. The disqualification period ended on June 30, 2004. When the disqualification period ended, the County did not reinstate Ms. Lopez’s food stamp benefits. She did not receive a Notice of Action indicating that the IPV period ended or an explanation of steps she needed to take to have her food stamps restored. 15. On or about October 6, 2004, Ms. Lopez submitted a food stamp recertification for benefits for her four children and herself. She received benefits for her children, but none for herself. She received no Notice of Action informing her that she was denied benefits or explanation for her exclusion. Thereafter, she continued to submit annual recertification applications for food stamp benefits for herself and her children. She submitted annual written reapplications for herself and her children on or about June 16, 2005, May 17, 2006, February 20, 2007, February 14, 2008, and finally, on November 18, 2008. Each time after completing the recertification\/application process, Ms. Lopez was awarded food stamp benefits for her children, but not for herself. She never received any Notice of Action that she was denied food stamps. Ms. Lopez did not receive food stamps from July 2004 through May 2008\u2014nearly four years. 16. Ms. Lopez filed a hearing request with Respondent on June 30, 2009. Before the hearing, the County conceded that Ms. Lopez was eligible for food stamps from July 2004 forward, and that due to its own administrative errors she was never been added back to the food stamps household. However, the County agreed only to restore her food stamps to the prior 12 months, back to June 2008. Ms. Lopez proceeded with her appeal for the restoration of her food stamp benefits from July 2004 to May 2008, but did not prevail. See ALJ Decision dated 10\/22\/09, attached hereto as Exhibit A. 17. The Administrative Law Judge acknowledged that the County made long-standing errors in Ms. Lopez’s case by failing to add her back to the food stamp household at the end of her ineligibility period. The Administrative Law Judge went on to note that, [t]here is no question that equitably [Ms. Lopez] was harmed by the county’s inaction in that for four years she did not receive food stamp benefits that she was otherwise entitled to receive. Id. Despite the obvious errors and Petitioner’s entitlement to benefits, the Administrative Law Judge sustained the County’s denial of Ms. Lopez’s request for restoration of benefits for the period of July 2004 to May 2008. The Administrative Law Judge’s decision was adopted by Respondent Wagner on October 22, 2009. FIRST CAUSE OF ACTION (Writ of Mandate Under Code of Civil Procedure Section 1085 for Violation of CDSS Manual of Policies and Procedures Section 63-504 (Failure to Add Previously Ineligible Members to the Household after an IPV ends.)) 18. Petitioner realleges and incorporates by reference each and every allegation contained in the above paragraphs. 19. Respondents have a clear and present duty to administer the Food Stamp Program in accordance with state law. 20. Respondent CDSS is the single state agency responsible for administering the Food Stamp Program. Welf. & Inst. Code 10600 & 10605. 21. Respondents have a duty to ensure that the individual counties, as Respondents’ agents, comply with the laws and regulations pertaining to all public benefits programs administered by CDSS. Welf. & Inst. Code 10605(a). 22. Federal law provides that CDSS shall add a previously excluded member who was disqualified for an intentional program violation . . . to the household the month after the disqualification period ends. 7 C.F.R. 273.21(f)(1)(iv). 23. CWDs must add previously disqualified individuals to the food stamp household the month after the period of ineligibility due to an IPV ends. MPP 63-504.353(b)(1). 24. On information and belief, Respondents, through their agents, fail to add previously disqualified individuals to the food stamp household the month after the disqualification period ends. 25. Petitioner is entitled to a writ of mandate under California Code of Civil Procedure Section 1085 enjoining Respondents’ refusal to ensure that individual counties comply with the laws and regulations pertaining to all public benefits programs administered by CDSS. Specifically, Petitioner is entitled to a writ of mandate instructing CDSS to comply with Welfare and Institutions Code Section 10605(a) and actively ensure that individual counties add previously disqualified family members to the Food Stamp household the month after the disqualification period ends. 26. At all times relevant to this action, Respondents have had the ability to fulfill their duties under the law. 27. Written demand was made upon the Respondents to perform their duties. In contravention of the laws and the demand made upon them Respondents have failed and refused to perform their duties mandated by law. A true and correct copy of the written demand made upon Respondents is attached as Exhibit B and incorporated as if fully set forth herein. 28. Petitioner is beneficially interested in Respondents’ performance of their duties. 29. Petitioner has no plain, speedy and adequate remedy in the ordinary course of law. Unless the Court grants the relief requested, Respondents will continue to fail and refuse to perform their legal duties, to the immediate and ongoing harm of the Petitioner. 30. No money damages or other legal remedies can adequately compensate Petitioner for the hardship caused by Respondents’ failure and refusal to perform their legal duties. SECOND CAUSE OF ACTION (Writ of Mandate Under Code of Civil Procedure Section 1085 for Violation of Welfare and Institutions Code Sections 10500 and 11004 (Failure to Review Applications for All Benefits)) 31. Petitioner realleges and incorporates by reference each and every allegation contained in the above paragraphs. 32. Respondents have a clear and present duty to administer the Food Stamp Program in accordance with state law, and to ensure that individuals who apply for and are eligible for Food Stamp benefits receive those benefits. Welf. & Inst. Code 10600 & 10605. 33. Respondents have a duty to ensure that the individual counties, as Respondents’ agents, comply with the laws and regulations pertaining to all public benefits programs administered by CDSS. Welf. & Inst. Code 10605(a). 34. Respondents have a clear, present and ministerial duty to ensure that when counties receive applications for aid, the county reviews the information provided carefully to ensure that the applicant is provided all the benefits that she or he is entitled to receive. See Welf. & Inst. Code 10500, 11004. 35. On information and belief, Respondents, through their agents, fail to review applications by previously disqualified household members for all the aid that they may be entitled to during the recertification process. 36. Petitioner is entitled to a writ of mandate under California Code of Civil Procedure Section 1085 enjoining Respondents’ refusal to ensure that individual counties comply with the laws and regulations pertaining to all public benefits programs administered by CDSS. Specifically, Petitioner is entitled to a writ of mandate instructing CDSS to comply with Welfare and Institutions Code Section 10500 and actively ensure that individual counties review each application that a previously disqualified person submits for aid for all benefits that she or he is entitled to receive. 37. At all times relevant to this action, Respondents have had the ability to fulfill their duties under the law. 38. Written demand was made upon the Respondents to perform their duties. In contravention of the laws and the demand made upon them Respondents have failed and refused to perform their duties mandated by law. A true and correct copy of the written demand made upon Respondents is attached as Exhibit B and incorporated as if fully set forth herein. 39. Petitioner is beneficially interested in Respondents’ performance of their duties. 40. Petitioner has no plain, speedy and adequate remedy in the ordinary course of law. Unless the Court grants the relief requested, Respondents will continue to fail and refuse to perform their legal duties, to the immediate and ongoing harm of the Petitioner. 41. No money damages or other legal remedies can adequately compensate Petitioner for the hardship caused by Respondents’ failure and refusal to perform their legal duties. THIRD CAUSE OF ACTION (Writ of Mandate Under Code of Civil Procedure Section 1094.5 and Welfare & Institutions Code Section 10962) 42. Petitioner realleges and incorporates by reference each and every allegation contained in the above paragraphs. 43. Respondent Wagner abused his discretion by (1) failing to restore Ms. Lopez’s food stamp benefits from July 2004 to May 2008, and (2) ignoring Ms. Lopez’s repeated applications for aid and requests for restoration of aid. Respondent also abused his discretion by failing to consider Ms. Lopez’s multiple recertifications\/applications as requests for restoration of aid because Respondent CDSS does not have a policy or procedure for a previously disqualified person to request restoration of benefits. 44. The abuse of discretion is prejudicial to Petitioner in that (1) she was entitled to benefits but never received them, and (2) she had no other way of requesting restoration of aid. 45. Petitioner has exhausted all of her administrative remedies. The writ of mandate requested herein is Ms. Lopez’s sole and exclusive remedy for review of Respondent Wagner’s decision, and there are no alternative remedies at law. RELIEF REQUESTED WHEREFORE, Petitioner respectfully requests that this Court: 46. Issue a writ of administrative mandate overturning Respondent Wagner’s decision that Ms. Lopez’s recertifications\/applications were not requests for restoration of aid and reversing Respondent Wagner’s denial of benefits Ms. Lopez’s for the period of July 2004 to May 2008. 47. Issue a writ of mandamus under Code of Civil Procedure Section 1085 directing Respondent CDSS to comply with Welfare and Institutions Code Section 10605(a) and actively ensure that individual counties add previously disqualified family members to the Food Stamp household the month after the disqualification period ends. 48. Issue a writ of mandamus under Code of Civil Procedure Section 1085 directing Respondent CDSS to comply with Welfare and Institutions Code Section 10500 and actively ensure that individual counties review each application that a disqualified person submits for aid for all benefits that the applicant may be entitled to receive. 49. Grant Petitioner reasonable costs of suit. 50. Grant reasonable attorneys’ fees to Petitioner’s counsel Western Center on Law and Poverty and Bay Area Legal Aid. 51. Issue other relief that is just and proper. DATED: October 19, 2010 WESTERN CENTER ON LAW AND POVERTY [image: image1.png] By:_______________________________________ ANTIONETTE DOZIER Attorneys for Petitioner MORAYMA LOPEZ VERIFICATION I, Morayma Lopez, state that I have reviewed the foregoing Petition and that I certify that the factual allegations contained therein are true to the best of my knowledge. I declare under penalty of perjury that the statements made therein are true and correct except those made on information and belief, and as to those statements, I believe them to be true. Executed at Oakland, California on October 21, 2010. ________________________________ Morayma Lopez, Petitioner [REMINDER RE EXHIBITS TO PETITION FOR WRIT OF MANDATE] Exhibit A See ALJ Decision dated 10\/22\/09, attached hereto as Exhibit A. Exhibit B A true and correct copy of the written demand made upon Respondents is attached as Exhibit B and incorporated as if fully set forth herein. PAGE 1 ______________________________________________________________________________________ PETITION FOR WRIT OF MANDATE ”

pdf Moncrief v. DPSS-Sheryl Spiller – LRS Medi-Cal Lawsuit

Published on 22 December 2016 In Welfare Complaint Library 2438 downloads

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pdf Ortega v. Johnson Replacement of SNAP/CalFresh benefits

Published on 17 November 2020 In Welfare Complaint Library 434 downloads

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pdf Robbins v. Kent – Petition for Writ of Mandate, 9-19-17 – Medi-Cal medical exemption request law suit

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” 2 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCTION 1. The right to notice and an opportunity to be heard is fundamental to due process. A Medi-Cal beneficiary’s due process rights are protected by the U.S. and California constitutions, and by federal and state statute and regulation. 2. This lawsuit concerns Medi-Cal beneficiaries who have been denied full and fair administrative hearings. Petitioners and other Medi-Cal beneficiaries with complex medical conditions have submitted medical exemption requests (MERs) to be exempt from involuntary enrollment in a Medi-Cal managed care plan so that they can remain with their existing health care providers. These beneficiaries have timely appealed the denial of their MERs by Respondent California Department of Health Care Services (DHCS). 3. Petitioners are three low-income Medi-Cal beneficiaries who live in Los Angeles County, California. Each Petitioner has a rare medical condition\u2014Nicolaides- Baraitser Syndrome, juvenile rheumatoid arthritis, or L-2-hydroxyglutaric aciduria\u2014that is worsening over time. Petitioners have been receiving care from the same doctors for many years. They are at risk of losing access to this care. Their doctors accept fee-for-service Medi- Cal but do not contract with Medi-Cal managed care plans. 4. Petitioners must apply for MERs to request that DHCS allow them to remain exempt from having to enroll into a Medi-Cal managed care plan and remain in the care of their long-term providers. DHCS denied Petitioners’ MERs and Petitioners sought review of their denials in the administrative fair hearing process. 5. In the administrative hearing process challenging DHCS’ denial of MERs, Respondents have routinely failed to conduct pre-hearing informal resolution, submitted legally inadequate statements of position, communicated ex parte with the administrative law judge (ALJ) to submit additional evidence without informing Petitioners or giving Petitioners an opportunity to respond, and not allowed Petitioners access to their case file or all of the evidence relied on in the hearing decision. 6. Petitioners seek a writ of mandate under Code of Civil Procedure 1085 to 3 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 enforce DHCS’ ministerial duty to conduct fair hearings for appeals of MER denials in accordance with state hearing laws and regulations and with the due process provisions of the California Constitution, art. 1, 7, 15. Petitioners Inna Kantor and Al-Muzzamil Lodin additionally sue as taxpayers under Code of Civil Procedure 526a for injunctive and declaratory relief as to these same violations of the law by DHCS and its Director. PARTIES 7. Petitioner Brendon Robbins is a Medi-Cal beneficiary who resides in Los Angeles County. He is 17 years old and under the care of his mother, Lisa Robbins. Brendon is one of fewer than 150 individuals in the world with a documented case of Nicolaides-Baraitser Syndrome, which has resulted in profound intellectual disability and, most recently, rapidly progressing ocular disease. The prognosis for his conditions remains largely unknown. Pediatric specialists at the Wright Foundation Pediatric Ophthalmology Clinic and UCLA Health, none of whom are a part of a Medi-Cal managed care plan, administer his care. In October 2016, Brendon sought an exemption from enrollment in a Medi-Cal managed care plan. Brendon appealed the initial denial of his MER in an administrative hearing held on January 11, 2017. In his case, DHCS neglected to contact him for pre-hearing informal resolution, failed to address specific medical facts in its hearing statement of position, and submitted an additional hearing statement after the hearing concluded without informing him or giving him an opportunity to respond. DHCS upheld the MER denial in a hearing decision on March 2 but granted him an exemption in May 2017 upon receiving a demand letter from Brendon’s attorney. Brendon’s MER will expire on May 31, 2018. Brendon has a direct beneficial interest in Respondents’ performance of their legal duties alleged below. Brendon also has a beneficial interest as a citizen since this lawsuit involves question of public right and seeks to enforce public duties. 8. Petitioner Inna Kantor resides in Los Angeles County. She is 63 years old. Her only income is Supplemental Security Income (SSI). As an SSI recipient, she automatically receives Medi-Cal. Ms. Kantor has an aggressive form of juvenile rheumatoid arthritis and 4 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 osteoporosis and, consequently, advanced disease of her joints. She has been receiving treatment for these conditions and multiple co-morbidities at Cedars-Sinai Medical Center for the past 25 years. Ms. Kantor applied for a MER in October 2016 to stay in the care of her doctors of the past 25 years who do not contract with a managed care plan. Ms. Kantor appealed the initial MER denial in an administrative hearing held on January 12, 2017. In her case, DHCS neglected to contact her for pre-hearing informal resolution, failed to address specific medical facts in its hearing statement of position, and submitted an additional hearing statement after the hearing concluded without informing her or giving her an opportunity to respond. DHCS upheld the MER denial in a hearing decision on March 2, but granted her an exemption in May 2017 upon receiving a demand letter from Ms. Kantor’s attorney. Ms. Kantor’s MER will expire on May 31, 2018. Ms. Kantor has a direct beneficial interest in Respondents’ performance of their legal duties alleged below. Ms. Kantor also has a beneficial interest as a citizen since this lawsuit involves question of public right and seeks to enforce public duties. 9. Petitioner Al-Muzzamil Lodin is a Medi-Cal beneficiary. He is 33 years old. His only income is SSI. As an SSI recipient, he automatically receives Medi-Cal. Mr. Lodin has a rare genetic disease, autosomal recessive L-2-hydroxyglutaric aciduria, that has advanced to date to cause dystonia or involuntary muscle contractions throughout the left side of his body. While there is no known cure to the disease, Mr. Lodin’s physicians at UCLA Health and Cedars-Sinai Medical Center are attempting to treat the symptoms of the disease and prevent the progression of the disease. Both UCLA Health and Cedars-Sinai are not part of a Medi-Cal managed care plan. In July 2016, Mr. Lodin sought an exemption from enrollment in a Medi- Cal plan. Mr. Lodin appealed the denial of his MER in an administrative hearing held on August 31, 2016. DHCS upheld the denial in a hearing decision on September 21. Mr. Lodin requested a rehearing and DHCS denied the request on October 13. In his case, DHCS neglected to contact him for pre-hearing informal resolution, failed to address specific medical facts in its hearing statement of position, submitted an additional statement of position after the 5 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 hearing concluded without informing him or giving him an opportunity to respond, and denied his rehearing request without explaining the reasons and legal basis for the decision. Upon receiving a demand letter from Mr. Lodin’s attorney, DHCS granted the MER in August 2017. His MER will expire on August 31, 2018. Mr. Lodin has a direct beneficial interest in Respondents’ performance of their legal duties alleged below. Mr. Lodin also has a beneficial interest as a citizen since this lawsuit involves question of public right and seeks to enforce public duties. 10. Respondent DHCS is the single state agency responsible for administering the Medi-Cal program in California and ensuring that the Medi-Cal program is operated in conformity with all state and federal laws. 11. Respondent Jennifer Kent is the current Director of DHCS and is sued only in her official capacity. Director Kent is responsible for the lawful administration of the Medi-Cal program. JURISDICTION AND VENUE 12. Venue is proper in this Court because Petitioners reside in Los Angeles County, where they have been injured by DHCS’ actions. Code Civil Proc. (C.C.P.) 393(b). 13. Petitioners have a clear, present, and beneficial right to DHCS’ accurate review of their MERs and the lawful administration of their Medi-Cal benefits. 14. Petitioners have no plain, speedy, and adequate remedy at law. 15. Petitioners are entitled to seek judicial review of Respondents’ actions and omissions in breach of their ministerial duties, as alleged in this petition, under section 1085 of the Code of Civil Procedure. STATUTORY AND REGULATORY FRAMEWORK Overview of Medi-Cal Statutes and Regulations 16. Medicaid is a cooperative federal and state program designed to furnish health care to the poor. 42 U.S.C. 1396 et seq. California’s Medicaid program is known as Medi- Cal. Welf. & Inst. 14000 et seq. 6 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17. Respondent DHCS is the single state agency responsible for ensuring Medi-Cal complies with all relevant laws and regulations. 42 U.S.C. 1396a(a)(5); 42 C.F.R. 431.10; Welf. & Inst. Code 14100.1. 18. DHCS must provide Medi-Cal beneficiaries with medically necessary services covered by Medicaid and any services California agreed to cover in its state plan. 42 C.F.R. 440.210 .230; Welf. & Inst.Code 14100.1. All Medi-Cal beneficiaries are entitled to receive certain mandatory services, including physician services, prescription drugs, and more. 42 U.S.C. 1396d(a); Welf. & Inst. Code 14131 et seq. 19. Medi-Cal benefits, like all public social services, must be provided promptly and humanely such that each beneficiary is able to access all of the aid to which she is entitled. Welf. & Inst. Code 10000, 10500. Enrollment in Medi-Cal Managed Care 20. The Medi-Cal program provides health care to beneficiaries either on a fee-for- service or a managed care basis. 21. With fee-for-service Medi-Cal, the beneficiary seeks care from any provider who is participating in the Medi-Cal program, willing to treat the beneficiary, and willing to accept reimbursement at a set amount from DHCS for the medical services provided. See, e.g., Welf. & Inst. Code 14016.5 (explaining the requirements and availability of Medi-Cal treatment services in managed care health plans and fee-for-service providers). 22. With managed care Medi-Cal, DHCS contracts with health plans to provide health care coverage to Medi-Cal beneficiaries within a managed care system. In an attempt to control costs, DHCS gives the managed care plans a per capita reimbursement based on the number of Medi-Cal beneficiaries enrolled in that plan, regardless of the cost of medical services the plan actually provides to a person. See Welf. & Inst. Code 14087.3, 14089. 23. Over time, DHCS has required mandatory enrollment in managed care plans for more and more categories of Medi-Cal beneficiaries. See, e.g., Welf. & Inst. 14087.3 (allowing DHCS to enter into contracts for the provision of care to Medi-Cal beneficiaries); 7 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Welf. & Inst. Code 14182 (requiring Seniors and Persons with Disabilities to enroll in managed care). Medical Exemption Requests (MERs) 24. The managed care system cannot provide adequate care for all Medi-Cal beneficiaries. Recognizing the limitations of managed care, DHCS allows for exemptions from mandatory enrollment in managed care for qualifying beneficiaries. See 22 C.C.R. 53887, 53923.5. To obtain such an exemption, a beneficiary’s treating physician must submit to DHCS a request for the beneficiary to retain fee-for-service Medi-Cal. Id. 53887(a), 53923.5(b). The request is made through the completion of HCO Form 7101, which includes instructions on suggested medical documentation and information to submit in support of the MER. Id. 53887(b). The Medi-Cal beneficiary or the provider submitting the request may attach medical evidence to support granting the MER. 25. Before evaluating a Medi-Cal beneficiary’s medical entitlement to a MER, DHCS determines whether the treating physician who submitted the beneficiary’s MER is affiliated with a Medi-Cal managed care plan in the beneficiary’s county. 22 C.C.R. 53887(a)(2)(B); see id. 53923.5(b)(1)(C), (b)(2)(A). DHCS will deny a MER submitted by a physician who contracts with any Medi-Cal managed care plan in the beneficiary’s county of residence. See id. 53887(a)(2)(B). 26. Once this threshold issue is determined, DHCS must then evaluate the beneficiary’s medical conditions. Id. 53887(a)(2). The beneficiary is entitled to exemption from managed care enrollment if she has a complex medical condition for which she is undergoing treatment. 22 C.C.R. 53887, 53923.5(b)(2). A complex medical condition includes a complex and\/or progressive disorder . . . that requires ongoing medical supervision and\/or has been approved for or is receiving complex medical treatment for the disorder, the administration which cannot be interrupted. Id. 53887(a)(2)(A)(7). 27. A beneficiary whose MER has been granted will remain in fee-for-service Medi-Cal for up to 12 months at a time and until the medical condition has stabilized to a 8 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 level that would enable the individual to change physicians and begin receiving care from a plan provider without deleterious medical effects. Id. 53887(a)(3). 28. Regulation requires that stability is determined by the applicant’s treating physician in the Medi-Cal fee-for-service program. Id. 53887(a)(3) (emphasis added). Notice and Hearing Requirements 29. Under the California Constitution, a person may not be deprived of life, liberty, or property without due process of law. Cal. Const. art. I, 7, 15. 30. Medi-Cal beneficiaries must be accorded an opportunity for a state hearing when they are dissatisfied with any action relating to their receipt of public social services. Welf. & Inst. Code 10950; 22 C.C.R. 50951. 31. Medi-Cal fair hearings must meet the due process standards set forth in Goldberg v. Kelly, 397 U.S. 254 (1970). 42 C.F.R. 431.205(d). 32. Beneficiaries are entitled to a notice and fair hearing when DHCS denies their MERs. 42 C.F.R. 438.56(f); 22 C.C.R. 53889(d), 53926 (e). The notice of action to beneficiaries must state, at a minimum, the action to be taken, the reasons for the action, the regulations supporting the action, and an explanation of the circumstances under which aid is continued if a hearing is requested. 42 C.F.R. 431.210; 22 C.C.R. 50179, 51014.1(c). 33. DHCS has delegated the administration of Medi-Cal fair hearings to the California Department of Social Services. Welf & Inst. Code 10966, 10950(f); 22 C.C.R. 50953(c). Decisions rendered by the ALJs must be treated, for all purposes, as the decision of the [DHCS] director. Welf & Inst. Code 10966(b). 34. Prior to the hearing, DHCS must review the case to determine the issues, including the existing evidence in the case file and the relevant statutes, regulations and policies. Department of Social Services Manual of Policies and Procedures (MPP) 22- 073.22. 35. Issues at the hearing are limited to those that are reasonably related to the hearing request or issues mutually agreed upon by the parties. MPP 22-049.5; see also id. http:\/\/www.westlaw.com\/Link\/Document\/FullText?findType=Y&serNum=1970134198&pubNum=0000780&originatingDoc=N6D9D7CC0E21F11E6B41DDB4EF22BB850&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Category) 9 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22-050.11 (a judge shall identify the issues before taking evidence at a hearing). If the rights of either party will be prejudiced by the consideration of a reasonably related issue raised at the hearing, the hearing must be continued or the record held open so that the party may prepare his case. MPP 22-049.51 36. Prior to the fair hearing, DHCS must contact the beneficiary to clarify the issues on appeal and resolve any disagreements and misunderstandings. MPP 22-073.23. Through this process, known as pre-hearing informal resolution, the DHCS representative must attempt to resolve the case at the lowest possible administrative level, thereby avoiding unnecessary hearing. MPP 22-073.23 -.231; see also Gov’t Code 100506.4(g)(8). 37. If the DHCS representative cannot resolve the case through informal resolution, she must prepare a written statement of position that summarizes the facts of the case and set forth the regulatory justification of the Department’s action. MPP 22-073.251. 38. DHCS must provide the statement of position to a beneficiary at least two working days before the hearing. Welf. & Inst. Code 10952.5(a); see also New Law: Providing Statements of Position to Claimants Before a State Hearing, All County Letter No. 17-21 (Feb. 16, 2017) (explaining passage of A.B. 2346, effective January 1, 2017, requiring DHCS to provide a statement of position prior to a hearing and amending the MPP that previously excluded DHCS from this requirement). 39. At the hearing, the DHCS representative must assume full responsibility for presenting the Department’s case, including summarizing the Department’s position, having the case record available at the hearing, and responding to questions from the beneficiary or the ALJ. MPP 22-073.3 .37. Evidence in the Administrative Hearing 40. When defending a MER denial, DHCS has the burden of going forward in the hearing to support its determination of why the MER should be denied. MPP 22-073.36. DHCS may verify whether a MER applicant’s treating physician participates in a Medi-Cal managed care plan. 22 C.C.R. 53887(c). DHCS may also verify the complexity, validity, 10 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and status of the [MER applicant’s] medical condition and treatment plan. Id. 41. Both before and during the hearing process, a Medi-Cal beneficiary must be allowed to examine the content of her case file, electronic account, and all documents and records to be used by the state at the hearing. 42 C.F.R. 431.242(a); see MPP 22-049.75. A Medi-Cal beneficiary must also be given the opportunity to [q]uestion or refute any testimony or evidence including opportunity to confront and cross-examine adverse witnesses. 42 C.F.R. 431.242(e); MPP 22-049.71-72, 22-049.76, 22-049.78 (claimant has the right to examine parties and witnesses, question opposing witness and parties, and rebut the state’s evidence). 42. On or around May 16, 2017, DHCS began informing beneficiaries whose MERs have been denied how to receive copies of their MER documentation. These instructions direct beneficiaries to visit one of two online links to download and complete a general form to access their entire MER file: http:\/\/www.dhcs.ca.gov\/formsandpubs\/forms\/Forms\/privacyoffice\/DHCS_6236.pdf or http:\/\/www.dhcs.ca.gov\/formsandpubs\/forms\/Forms\/privacyoffice\/DHCS_6237.pdf. DHCS instructs beneficiaries to turn in the form by emailing [email protected] or by mailing it to the address listed on the form. The instructions do not describe the contents of the MER documentation or how they may assist beneficiaries in preparing their arguments for hearing. DHCS does not provide any other way besides these website links to obtain this information and gives no option for persons who do not have internet access. Prior to May 16, DHCS did not inform beneficiaries how to access their case files and records at all. 43. The administrative hearing decision must be based exclusively on the evidence and other material introduced at the hearing . . . and shall specify the reasons for the decisions and identify the supporting evidence and regulations. MPP 22-061.5. If the evidence necessary to determine the case is not available at the hearing, the ALJ can continue the hearing or hold the record open. MPP 22-053.21. The ALJ can also continue the hearing or hold the record open if considering a reasonably related issue would prejudice the parties. http:\/\/www.dhcs.ca.gov\/formsandpubs\/forms\/Forms\/privacyoffice\/DHCS_6236.pdf http:\/\/www.dhcs.ca.gov\/formsandpubs\/forms\/Forms\/privacyoffice\/DHCS_6237.pdf mailto:[email protected] 11 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MPP 22-049.51. The ALJ can reopen a closed hearing record for additional information if all parties are notified of the reason for the reopening. MPP 22-059.12. ALJs must make satisfactory evidentiary findings and assess the probative value of admitted evidence. MPP 22-050.3. 44. While the hearing is pending, there must be no ex parte communication between DHCS and the ALJ without notice and opportunity for all parties to participate in the communication. Gov’t Code 11430.10(a). All documents submitted by either the claimant or the county shall be made available to both parties. MPP 22-049.81. If an ALJ receives an ex parte communication from DHCS, the ALJ must make that communication part of the hearing record, notify all parties of that addition to the record, and allow the parties to respond within 10 days after receipt of the communication. Gov’t Code 11430.50. Rehearing 45. A Medi-Cal beneficiary may request a rehearing to contest an administrative order. Welf. & Inst. Code. 10960. A rehearing should be granted when any of the grounds under Welfare and Institutions Code 10960(b) are met, including when [t]he adopted decision does not address all of the claims or issues raised by the parties or [f]or any other reason necessary to prevent the abuse of discretion or an error of law, or for any other reason consistent with 1094.5 of the Code of Civil Procedure. Welf. & Inst. Code 10960(b)(4), (8). 46. DHCS must explain the reasons and legal basis for granting or denying the request for rehearing. Welf. & Inst. Code 10960(c). STATEMENT OF FACTS 47. Petitioners file this writ to challenge DHCS’ systemic violation of beneficiaries’ due process rights in the adjudication of hearings to reconsider MER denials. 48. Respondents are conducting a fair hearing process in MER cases that violates beneficiaries’ rights to due process. 49. Respondents do not contact beneficiaries prior to the MER hearing to engage in 12 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 informal resolution as required by the MPP. Petitioners are unable to examine their own case file and cannot review the notes or evidence Respondents used in reviewing and denying their MERs . 50. Respondents submit a statement of position in advance of the MER fair hearings drafted with the same standard boilerplate language, with no reference to beneficiaries’ particular medical conditions and with no factual analysis of why their complex, chronic conditions do not qualify for exemptions. For example, the statements of position Respondents submitted in Petitioners Brendon Robbins, Inna Kantor, and Al-Muzzamil Lodin’s respective cases are identical, word-for-word, except for one sentence that was omitted in Ms. Kantor’s case. The Facts, Position, and Conclusion Sections of DHCS’ statements of positions\u2014where DHCS should have discussed and analyzed the evidence about each Petitioner’s individual medical conditions and evidence\u2014are the same for all three Petitioners and make no mention of any individual identifying facts, evidence, or evaluation. 51. In each of Petitioner’s cases, DHCS claimed [t]he Medical Monitoring Unit had no medical documentation to verify the complexity, validity, and status of the medical condition and treatment plan in order to determine that the medical condition is unstable and that there would be deleterious medical effects if the individual was to begin receiving care under a plan provider. At no point in the statements of position does DHCS name or describe the medical conditions that Petitioners have or describe the treatment plans laid out in their medical records and physician letters. At the end of the above-mentioned statements of position, DHCS requested an opportunity to make a new determination of the claimant’s case: If additional medical information is provided at or before the hearing the DHCS requests the hearing be held open so additional medical information can be reviewed and make a determination regarding the exemption from plan enrollment. 52. In statements of positions for other Medi-Cal beneficiaries, DHCS has requested that it be allowed to make a new determination on a claimant’s case but that the claimant should be prohibited from submitting additional information after the hearing: 13 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 If additional medical information is provided AT OR BEFORE the hearing the DHCS requests the hearing by held open so additional medical information can be reviewed and a new determination made regarding the exemption from plan enrollment. The record should NOT be held open for additional information to be submitted after the hearing. (Emphasis in the original.) 53. Respondents generally do not appear in person at the MER fair hearings. Petitioners allege on information and belief that DHCS has appeared in person at only one hearing during the last two years when one of its physician reviewers testified at a hearing on July 27, 2017, upon request by the beneficiary. Because DHCS does not appear in person to represent the Department’s findings and position at these hearings, beneficiaries are deprived the opportunity to confront and cross-examine Respondents about the reasons for the denial of their MERs. 54. When a Medi-Cal beneficiary submits additional evidence before or at the MER hearing, DHCS then submits an addendum to their original statement of position to the ALJ after the hearing has concluded. This addendum often presents additional facts or analysis not contained in DHCS’ original statement of position. In many cases, the post-hearing addendum is the first time in the case that DHCS presents its medical reviewer’s factual findings and analysis. 55. Because Medi-Cal beneficiaries do not see the addendum until after the hearing, if at all, this practice operates as a second hearing conducted outside the presence of the beneficiaries, without the opportunity to be heard. 56. At no point during the hearing process does DHCS provide the identity or qualifications of the medical reviewers or why that reviewer’s medical opinion should outweigh that of the beneficiary’s treating physician. 57. On information and belief, Petitioners allege that DHCS engages in ex parte communications by submitting the addendum, as neither DHCS nor the ALJ notifies the 14 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 beneficiary of the existence of the addendum or its contents. As a result, the affected beneficiaries have no opportunity to examine DHCS about its final position or to respond to the addendum. 58. Following unfavorable hearing decisions, beneficiaries have requested rehearings on the grounds enumerated in Welfare and Institutions Code 10960(b). Respondents deny such rehearing requests with the following standard response: We have determined that your request for rehearing does not meet any of the regulatory criteria in order to approve a rehearing and must be denied in accordance with the California Welfare and Institution[s] Code Section 10960 (a) (b). The adopted decision is consistent with the law, is supported by the evidence in the record, is supported by the findings, addresses all of the claims and issues supported by the hearing record, and the information provided in the request could not change the adopted decision of the original hearing. Respondents fail to offer any reasons for the denial of their hearing requests as applied to beneficiaries’ individualized facts. 59. Despite Respondents’ failure to reveal evidence to beneficiaries throughout the hearing process, Respondents are denying beneficiaries’ MERs in the majority of state fair hearing cases. In a similar practice, Respondents are denying beneficiaries’ requests for rehearings. 60. Respondents have set an adjudicatory system that is partial to DHCS’ own interests and in which beneficiaries are bound to fail. On information and belief, Respondents’ MER fair hearings violations are a systemic policy and practice and are not limited to Petitioners’ individual cases. Petitioner Brendon Robbins 61. Petitioner Brendon Robbins is a Medi-Cal beneficiary. He has Nicolaides- Baraitser Syndrome, an extremely rare genetic condition. There are fewer than 150 cases documented in the world. 15 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 62. At 17 years old, Brendon has the mental capacity of a four-year-old child. He has profound intellectual disability, expressive language impairments limiting his vocalizations to chirp-like sounds, inconsistent toileting skills, constipation, and recurring emotional outbursts and tantrums including biting his arms. He has a history of seizures and has had recent eye fluttering and seizure-like movements, which are of special concern because his genetic condition predisposes him to seizures. 63. Brendon’s most critical medical need is treatment of rapidly progressing ocular disease. Because Brendon is unable to communicate verbally, he uses visual cues to receive information and to communicate. Losing his eyesight would be catastrophic as it would not only deprive him of to his ability to communicate his needs but of his ability to communicate altogether. 64. Brendon’s behavioral problems tied to Nicolaides-Baraitser syndrome require his eye examinations to be conducted under general anesthesia. In September 2013, Dr. Luke Deitz, a pediatric ophthalmologist specializing in retinal conditions, undertook Brendon’s care after Brendon’s prior ophthalmologist determined he could no longer care for Brendon because of his behavior during examination and the rapid progression of his eye condition. 65. In November 2015, Brendon’s neurologist at UCLA Health recommended he be treated at the university’s Child and Adult Neurodevelopmental Clinic ( the Clinic ) [g]iven his complex etiology, risk of epilepsy, and behavioral issues. The Clinic, as part of a research university, specializes in treating youth and young adults with autism, rare genetic conditions, and developmental delay. It provides multidisciplinary care teams targeted at children and adolescents. Brendon’s care team there includes a neurologist, geneticist, and psychiatrist. 66. Brendon is the only known case of Nicolaides-Baraitser syndrome in Los Angeles County. The only known physicians in Los Angeles County experienced with treating someone with Nicolaides-Baraitser syndrome are the ones treating him now, including the physicians at UCLA Health and Dr. Deitz, his ophthalmologist. 16 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 67. Both Dr. Deitz and the Clinic treat Medi-Cal patients only on a fee-for-service basis. 68. Dr. Dietz submitted a MER for Brendon on or around October 6, 2016, along with notes from Brendon’s last four appointments that noted his vision has been getting worse and he is completely resistant to in-office examination, with evidence of worsening activity. 69. DHCS denied the MER on grounds that his condition(s) appear(s) to be stable. (Parentheses in the original.) Brendon timely appealed the denial and had a hearing on January 11, 2017. 70. No representative of DHCS contacted Brendon’s mother or his authorized representative about pre-hearing informal resolution of his case. 71. Brendon appeared in person at the hearing with his mother and authorized representative. DHCS did not appear in person and instead only submitted a written statement of position that made no mention of his condition, symptoms, or treating physician’s assessments of his stability. 72. DHCS’ statement of position was the only basis of their decision that it disclosed to Brendon prior to the hearing. DHCS did not inform Brendon of the right to examine his MER file, which would have included DHCS’ medical review upon which it relied to deny the MER. 73. DHCS included as an attachment to its statement of position the medical evidence Brendon’s doctor had submitted with his original MER application. DHCS did not, however, address any of that evidence in the facts, position, or conclusion of its statement of position. Instead, DHCS claimed in its statement of position that Brendon’s provider failed to return an HCO-7101 documenting any high risk of complex medical condition that has not been stabilized and [t]herefore , there is no deleterious health affects [sic] to the beneficiary if they begin receiving care from a plan provider. 17 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 74. At the hearing, Brendon submitted a statement of position along with additional medical records from Dr. Deitz, the Clinic, and UCLA Health as well as a letter from his high school teacher and research articles explaining the rarity and complexity of Nicolaides- Baraitser Syndrome. Brendon’s mother testified at the hearing, too. 75. According to the hearing decision, 30 days after the hearing, on February 10, 2017, DHCS submitted a supplemental statement ( Addendum ) to refute the evidence Brendon submitted at the hearing. The Addendum was substantially different from the original statement of position. For the first time, DHCS presented its medical consultant’s opinions. The medical consultant asserted that Brendon was stable based on the following: According to the most recent notes, the patient had been off seizure medications since 2008, with no seizures since, and the decrease in his vision was similarly noted in 2015, where it was treated with a changed [sic] in his glasses prescription. Since it was present in 2015, it doesn’t appear his decrease in vision is particularly unstable. He appears stable for transfer to MCP . . . . 76. Neither Brendon nor his authorized representative received notice or a copy of the Addendum and thus did not have an opportunity to respond. Without verifying that DHCS shared a copy of the Addendum with Brendon or his authorized representative, the ALJ stated in her hearing decision that [t]he record was left open until February 21, 2017, for the Claimant’s attorney to provide any updated medical records after receiving the DHCS response; however, no additional response was received from the claimant’s attorney. 77. Because Respondents did not appear at the hearing, and instead presented a supplemental statement after the hearing without disclosing the identities of its medical reviewers, Brendon did not have a meaningful opportunity to review or challenge the qualifications, opinions, or bases of opinion of the DHCS reviewer who denied his MER. 78. On March 2, 2017, DHCS issued its final decision in Brendon’s case upholding the denial of Brendon’s MER. After additional analysis, DHCS admitted that Brendon’s condition was complex as required for an exemption. However, DHCS insisted, and the ALJ concurred, that his conditions were stable and required plan enrollment. 18 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 79. The final decision did not provide an analysis of the competing evidence contained in the record that supported Brendon’s claim of instability and deleterious medical effects. 80. DHCS’ statement of position and final decision also failed to disclose the identity or qualifications, including areas of specialty care, practice, or expertise, of the medical consultant who recommended the MER denial. The decision, statement of position, and quoted section of the Addendum all failed to address or even refer to the requirement in 22 C.C.R. 53887(a)(3), which provides that a MER should be granted until the beneficiary’s medical condition has stabilized to a level that would allow him to switch to a plan provider without deleterious medical effects, as determined by a beneficiary’s treating physician in the Medi-Cal fee-for-service program. 81. Brendon sought a reversal of the final hearing decision in a demand letter sent by his attorney to Director Kent on May 11, 2017. Upon reviewing the letter, DHCS granted Brendon’s MER for 12 months until May 31, 2018. 82. Near the expiration of his MER, Brendon must apply for another MER to continue care with Dr. Deitz and the CAN Clinic. Based on his prior denial and hearing experience, Brendon believes DHCS will deny the MER on the same grounds and conduct the hearing in the same manner without due process. Petitioner Inna Kantor 83. Petitioner Inna Kantor is a Medi-Cal beneficiary who is permanently disabled. She has lifelong disabilities from aggressive juvenile rheumatoid arthritis and osteoporosis and, consequently, advanced disease of her joints and limited mobility. She also has hip and knee replacements, glaucoma and cataract formation in both eyes, hepatitis B, spinal compression fracture, hypothyroidism, fibromyalgia, and depression. Additionally, Ms. Kantor has chronic atrophic gastritis, pernicious anemia, and iron deficiency. She received cataract surgery in her left eye on March 16, 2017, cataract surgery in her right eye on April 24, 2017, and a left hip total arthroplasty revision on May 17, 2017. 19 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84. Ms. Kantor has established a coordinated care team at Cedars-Sinai Medical Center, where she has received all major medical care and surgical procedures for the past 25 years. In 2016 alone, she attended appointments with specialists in endocrinology, rheumatology, hepatology, hematology, orthopedic surgery, internal medicine, ophthalmology, and laboratory testing and scanning. 85. Cedars-Sinai treats Medi-Cal patients only on a fee-for-service basis. 86. Ms. Kantor’s primary care physician, Dr. Peggy Miles, submitted a MER on or around October 5, 2016. The MER application included four physicians’ letters\u2014three from her physicians at Cedars-Sinai and one letter from her ophthalmologist in private practice\u2014and records from her last seven appointments. Ms. Kantor’s rheumatologist noted [i]nterruption of this close relationship [with her physicians at Cedars-Sinai] could negatively impact her care and negatively [a]ffect her psychologically. Concern is that if she does not have this coordinated complex care, her disease processes will continue to progress leaving the patient with even less functional capacity than she already has. She already has progressive pain and loss of functionality over the years and has had to increase the hours of her home attendants to complete her activities of daily living. It is for these reasons that I strongly encourage you to continue providing Inna Kantor reasonable accommodation at Cedars-Sinai and allow her to keep regular Medi-Cal at yearly intervals. 87. DHCS denied the MER on grounds that her condition(s) appear(s) to be stable. (Parentheses in original.) Ms. Kantor timely appealed the denial and had a hearing on January 12, 2017. 88. No representative of DHCS contacted Ms. Kantor or her authorized representative about pre-hearing informal resolution of her case. 89. Ms. Kantor appeared in person at the hearing with a friend and her authorized representative. DHCS did not appear and instead only submitted a written statement of position that made no mention of her condition, symptoms, or treating physician’s assessments of her stability. 20 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 90. DHCS’ statement of position was the only basis of their decision that it disclosed to Ms. Kantor prior to the hearing. DHCS did not inform Ms. Kantor of the right to examine her MER file, which would have included DHCS’ medical review upon which it relied to deny the MER. 91. DHCS did not acknowledge or evaluate the physician letters or medical records that Ms. Kantor had already summited with her original MER application. Instead DHCS stated that Ms. Kantor’s provider failed to return an HCO-7101 documenting any high risk of complex medical condition that has not been stabilized and [t]herefore, there is no deleterious health affects [sic] to the beneficiary if they begin receiving care from a plan provider. 92. At the hearing, Ms. Kantor provided a statement of position along with medical records of visits to Cedars-Sinai from January 2016 to November 2016 and, again, the four physician letters. At the hearing, Ms. Kantor and her friend also both testified about her daily difficulties and declining health. 93. Eighteen days after the hearing was held, on January 30, DHCS submitted a supplemental statement ( Addendum ). Although Ms. Kantor had submitted much of her documentation well before the hearing, the post-hearing Addendum sought to refute Ms. Kantor’s evidence for the first time. The Addendum contained the DHCS medical consultant’s review based on the medical records from January 2016 to September 2016. The medical consultant described Ms. Kantor as stable because the consultant claimed not to have observed changes in Ms. Kantor’s conditions: her most recent notes are similar to the rest of the notes from the year. 94. Neither Ms. Kantor nor her authorized representative received any notice or a copy of the Addendum and thus did not have an opportunity to respond. Without verification that DHCS shared a copy of the Addendum with Ms. Kantor or her authorized representative, the ALJ’s decision stated that [t]he record was left open until February 10, 2017, for the 21 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Claimant’s attorney to provide any updated medical records after receiving the DHCS response; however, no additional response was received from the Claimant’s attorney. 95. Because Respondents did not appear at the hearing, and instead presented a supplemental statement after the hearing without disclosing the identities of its medical reviewers, Ms. Kantor did not have a meaningful opportunity to review or challenge the qualifications, opinions, or bases of opinion of the DHCS reviewer who denied her MER. 96. DHCS issued the final hearing decision on March 2, 2016 upholding the denial of Ms. Kantor’s MER. From DHCS’ post-hearing analysis of Ms. Kantor’s medical evidence, the ALJ and DHCS determined Ms. Kantor’s juvenile rheumatoid arthritis and osteoporosis were as stable as medications can provide. DHCS made a determination on only two of Ms. Kantor’s 12 medical conditions. 97. Neither the addendum nor the decision addressed the medical evaluations provided by her physicians. In particular, DHCS did not refute the medical opinion of Ms. Kantor’s rheumatologists that her disease processes will continue to progress leaving the patient with even less functional capacity than she already has. 98. DHCS’ statement of position and final decision also failed to disclose the identity or qualifications, including areas of specialty care, practice, or expertise, of the medical consultant who recommended the MER denial. The decision, statement of position, and quoted section of the Addendum all failed to reference or even refer to the requirement in 22 C.C.R. 53887(a)(3), which provides that a MER should be granted until the beneficiary’s medical condition has stabilized to a level that would allow her to switch to a plan provider without deleterious medical effects, as determined by a beneficiary’s treating physician in the Medi-Cal fee-for-service program. 99. Ms. Kantor sought a reversal of the final hearing decision in a demand letter sent by her attorney to Director Kent on May 11, 2017. Upon reviewing the letter, DHCS granted Ms. Kantor a MER for 12 months until May 31, 2018. 22 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 100. Near the expiration of her MER, Ms. Kantor must apply for another MER to continue care at Cedars Sinai. Based on her prior denial and hearing experience, Ms. Braddock believes DHCS will deny the MER on the same grounds and conduct the hearing in the same manner without due process. Petitioner Al-Muzzamil Lodin 101. Petitioner Al-Muzzamil Lodin is a Medi-Cal beneficiary. He has advanced autosomal recessive L-2-hydroxyglutaric aciduria, an extremely rare genetic disease that is associated with progressive brain damage. As a result of this condition, Mr. Lodin has involuntary spasms and abnormal posture of the neck and arms, following many years of restlessness and excessive movements of the body. These conditions include blepharospasm (involuntary blinking or spasm of the eyelids), muscle spasticity, orofacial dyskinesia (involuntary repetitive movements of the mouth and face), and torticollis of the neck. He also has seizure disorder, developmental delay, difficulty swallowing, a chronic cough, and constipation. Today, Mr. Lodin’s most active problem is worsening dystonia, a movement disorder in which his muscles contract uncontrollably. The dystonia is expressed as a severe neck distortion to his left side with his left hand rotated and wrist flexed upward. Mr. Lodin’s posture now leans permanently to the left. 102. There is no known cure to Mr. Lodin’s disease. He has been under the care of UCLA specialists for about 20 years. He came under the care of other neurologists at Cedars- Sinai Medical Center in 2013 to receive Botox treatment, which UCLA could not provide. 103. UCLA Health and Cedars-Sinai treat Medi-Cal patients on only a fee-for- service basis. 104. Mr. Lodin’s physician at Cedars-Sinai submitted a MER on or around July 7, 2016. The MER application included medical records from his last five visits to Cedars-Sinai. The medical records showed Mr. Lodin was under active treatment for his dystonia, which had been refractory to medications but his physicians were still adjusting the dosages and type of Botox he was receiving to attempt control of the dystonia. 23 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 105. DHCS denied the MER on grounds that his condition(s) appear(s) to be stable. (Parentheses in original.) Mr. Lodin timely appealed the denial and had a hearing on August 31, 2016. 106. No representative of DHCS contacted Mr. Lodin or his authorized representative about pre-hearing informal resolution of his case. 107. Mr. Lodin appeared in person at the hearing with his mother as his authorized representative. DHCS did not appear in person and instead submitted a written statement of position. 108. DHCS did not mail a statement of position to Mr. Lodin prior to his hearing. Mr. Lodin learned of DHCS’ arguments for the first time when the ALJ read DHCS’ statement at the hearing. 109. DHCS did not inform Mr. Lodin on the right to examine his MER file, which would have included DHCS’ medical review upon which it relied to deny the MER. 110. DHCS claimed in its statement of position that Mr. Lodin’s provider failed to return an HCO-7101 documenting any high risk of complex medical condition that has not been stabilized and [t]herefore, there is no deleterious health affects [sic] to the beneficiary if they begin receiving care from a plan provider. Although Mr. Lodin submitted medical evidence along with his original MER application, the DHCS statement of position made no mention of the contents of the records or even his medical conditions. 111. At the hearing, Mr. Lodin submitted a statement of position along with medical records from April 2015 to August 2016. Mr. Lodin’s mother testified about her son’s deteriorating medical conditions and how he would suffer if he lost care at UCLA Health and Cedars-Sinai. Mr. Lodin, himself, also appeared at the hearing in front of the ALJ in an apparent state of physical distress from dystonia and involuntary muscle movements. 112. At the hearing, Mr. Lodin also provided a letter from his neurologist at Cedars- Sinai. The physician noted: If Mr. Lodin is not treated in a setting with a group of experts, it is likely he would deteriorate to a level of functionality unmanageable for his caretakers. I am 24 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 strongly recommending that you allow this patient to continue with our Neurology Clinic at Cedars-Sinai Medical Center, in order to continue the workup, initiate appropriate care, and monitor response to treatment and disease progression. It is imperative for him to continue follow-up care to maintain continuity of care. Continuity of care will help to limit disease progression and disease related complications. 113. Fifteen days after the hearing, on September 15, 2016, DHCS submitted a supplemental statement ( Addendum ) to refute both Mr. Lodin’s provided statement of position and evidence at the hearing and evidence that had already been provided with the MER. The medical reviewer found that [a]lthough his condition is complex and certainly progressive, requiring treatment by specialists, there is no evidence that his disease is currently acutely unstable such that it would be dangerous to transfer him to a managed care plan where he could be treated by similar specialists. DHCS does not address his treating physician’s August 29, 2016 letter, which stated that Mr. Lodin’s condition would deteriorate if he did not remain with his clinical providers. DHCS also did not mention the severity of Mr. Lodin’s dystonia and, instead, characterized it merely as a movement disorder. 114. Neither Mr. Lodin nor his authorized representative received the Addendum. DHCS’ final decision did not include any indication or determination whether DHCS shared a copy of the Addendum with Mr. Lodin and his authorized representative or gave him an opportunity to respond. 115. Because Respondents did not appear at the hearing, and instead presented a supplemental statement after the hearing without disclosing the identities of its medical reviewers, Mr. Lodin did not have a meaningful opportunity to review or challenge the qualifications, opinions, or bases of opinion of the DHCS reviewer who denied his MER. 116. DHCS issued the final decision of the hearing on September 21, 2016, upholding the denial of Mr. Lodins’ MER. From DHCS’ post-hearing analysis of Mr. Lodin’s medical evidence in the record, the ALJ and DHCS determined Mr. Lodin’s genetic disorder, though complex, was stable. 25 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 117. The final decision did not provide an analysis of Mr. Lodin’s statement of position or testimony from his authorized representative. It also did not provide an analysis of competing interpretations of his medical conditions and medical records. Rather, the decision omitted significant portions of Mr. Lodin’s physicians’ letters. Additionally, the decision did not make findings on Mr. Lodin’s dystonia, the most debilitating symptom of his disease. The decision referenced the dystonia, not by name, but merely as a movement disorder or other complication of his primary disease. 118. DHCS’ statement of position and final decision also failed to disclose the identity or qualifications, including or areas of specialty care, practice, or expertise, including or areas of specialty care, practice, or expertise, of the medical consultant who recommended the MER denial. The decision, statement of position, and quoted section of the Addendum all failed to address or even refer to the requirement in 22 C.C.R. 53887(a)(3), which provides that a MER should be granted until the beneficiary’s medical condition has stabilized to a level that would allow him to switch to a plan provider without deleterious medical effects, as determined by a beneficiary’s treating physician in the Medi-Cal fee-for-service program. 119. Mr. Lodin requested a rehearing by writing on or around September 29, 2016, on grounds that DHCS improperly evaluated his evidence and improperly applied the MER standard under 22 C.C.R. 53887. He explained he has a rare, complex condition that is deteriorating over time and his health is worsening. Mr. Lodin also explained he was undergoing treatment at UCLA Health and Cedars-Sinai, which were providing him with Botox injections and evaluations for sinus surgery and deep brain stimulation surgery. 120. DHCS denied the rehearing in a letter dated October 13, 2016, which read: The adopted decision is consistent with the law, is supported by the evidence in the record, is supported by the findings, addresses all of the claims and issues supported by the hearing record, and the information provided in the request could not change the adopted decision of the original hearing. DHCS did not provide any other explanation about its decision to deny the rehearing request and did not address any reasons specific to Mr. Lodin’s case. 26 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 121. DHCS enrolled Mr. Lodin into a Medi-Cal managed care plan on December 1, 2016. For nine months thereafter, the community neurologists available to Mr. Lodin through his managed care plan were unable to provide Mr. Lodin with the care necessary for his conditions. Mr. Lodin sought appointments with three plan neurologists. The first two neurologists declined to accept Mr. Lodin as a patient. One of these two neurologists admitted to being unfamiliar with his condition, having never treated a patient with L-2-hydroxyglutaric aciduria. Mr. Lodin stopped receiving Botox treatment for his dystonia as soon as he transferred to plan neurologists. Left untreated with these providers, Mr. Lodin’s dystonia rapidly worsened during the time he was in managed care, leaving him incapacitated in bed for many hours during the day and unable to move around freely on his own as he used to be able to do. The third neurologist, the only plan physician willing to treat Mr. Lodin, wanted to just monitor his symptoms rather than treat them or prevent further deterioration. 122. Mr. Lodin sought a reversal of the final hearing decision in a demand letter sent by his attorney to Director Kent on August 8, 2017. Upon reviewing the letter, DHCS granted Brendon’s MER for 12 months until August 21, 2018. 123. Near the expiration of his MER, Mr. Lodin must apply for another one to continue his treatment and care with his physicians. Based on his prior denial and hearing, Mr. Lodin believes DHCS will deny the MER on the same grounds and conduct the hearing in the same manner without due process. CAUSES OF ACTION First Cause of Action Writ of Mandate Under Code Civil Proc. 1085 Against All Respondents (Violation of Fair Hearing Laws & Regulations) 124. Petitioners reallege and incorporate by reference each and every allegation contained in the above paragraphs as though fully set forth herein. 27 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 125. Respondents have a ministerial duty to provide Petitioners and other Medi-Cal beneficiaries an opportunity for a fair and impartial hearing concerning their requests for exemption from managed care pursuant to 22 C.C.R. 50179, 51014.1(c). 126. Respondents’ conduct in Petitioners’ cases and other Medi-Cal beneficiaries’ cases deprive beneficiaries of a fair hearing. Namely, Respondents have improperly administered MER hearings in violation of Welfare & Institutions Code 10950 et seq., Government Code 11430.10 and 11430.50, and the regulations on state fair hearings (MPP) by: (a) failing to conduct a pre-hearing review of the evidence and engage in informal resolution prior to the hearing; (b) failing to adequately inform Petitioners and Medi-Cal beneficiaries how to access their case files and records, thereby preventing them from fully accessing their case files and records; (c) submitting statements of position that fail to present any of the individual beneficiary’s facts or summarize Respondents’ position specific to those facts; (d) appearing at the hearing only by statements of position, thereby denying beneficiaries and the administrative law judges the opportunity to question Respondents, challenge their evidence, and assess the probative value of Respondents’ evidence; (e) failing to disclose the identities and qualifications of their medical reviewers who direct the denial of MERs, thereby forcing final decisions that fail to assess the probative value of medical evidence submitted by Petitioners and other Medi-Cal beneficiaries; (f) denying Petitioners and other Medi-Cal beneficiaries the opportunity to review and respond to the evidence against them, specifically 28 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DHCS’ medical assessment of their eligibility for a MER and additional statements transmitted to ALJs after a hearing is conducted; (g) engaging in ex parte communications which include, but is not limited to, communicating with the ALJ after the hearing but before the decision without notifying Petitioners or other Medi-Cal beneficiaries of the communication or its content; and (h) issuing final hearing decisions improperly relying on DHCS’ conclusory and unsubstantiated statements about Petitioners’ and other Medi-Cal beneficiaries’ medical conditions. 127. Petitioners are beneficially interested in the outcome of this proceeding and has no other plain, speedy, or adequate remedy at law except by way of this a writ of mandate. 128. An actual controversy has arisen and now exists between Petitioners and Respondents concerning their respective rights and duties under state law on how MER hearings should be conducted. Petitioners desire a judicial determination of the rights and duties of the parties and a declaration as to whether Respondents’ practices as alleged herein violate state law. A judicial declaration is necessary and appropriate at this time so that all parties may ascertain their rights and duties under state law. Second Cause of Action Writ of Mandate Under Code Civil Proc. 1085 Against All Respondents (Denial of Due Process of Law) 129. Petitioners reallege and incorporate by reference each and every allegation contained in the above paragraphs as though fully set forth herein. 130. Respondents have a ministerial duty to afford Petitioners and other Medi-Cal beneficiaries seeking exemption from managed care due process of law in the administration of their MER appeal hearings. Respondents have improperly administered MER hearings in violation of the Due Process Cause of the California Constitution Article I, 7 and 15, by conducting the hearing process in such a way that Respondents prevent Petitioners and other 29 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Medi-Cal beneficiaries from having a meaningful opportunity to examine and challenge the evidence against their MER claim. Respondents also violate due process through post-hearing conduct and communications with the ALJ after the hearing and outside of the presence of the beneficiary, without adequate notice and an opportunity to respond. 131. Petitioners are beneficially interested in the outcome of this proceeding and have no other plain, speedy, or adequate remedy at law except by way of this writ of mandate. 132. An actual controversy has arisen and now exists between Petitioners and Respondents concerning their respective rights and duties under the California Constitution. Petitioners desire a judicial determination of the rights and duties of the parties and a declaration as to whether Respondents’ practices as alleged herein violate the California Constitution. A judicial declaration is necessary and appropriate at this time so that all parties may ascertain their rights and duties under the California Constitution. Third Cause of Action Writ of Mandate Under Code Civil Proc. 1085 Against All Respondents (Violation of Welf. & Inst. Code 14182 and 22 C.C.R. 53887, 53923.5) 133. Petitioners reallege and incorporate by reference each and every allegation contained in the above paragraphs as though fully set forth herein. 134. Respondents must provide a process by which Petitioners and other Medi-Cal beneficiaries with complex medical conditions can be exempted from mandatory managed care enrollment. Welf. & Inst. Code 14182. The standard to grant a MER depends on whether the beneficiary’s complex medical condition is not stable enough to transfer to a managed care physician without deleterious medical effects. 22 C.C.R. 53887(a)(3), 53923.5(b)(2)(B) & (c). Per regulation, risk of deleterious medical effects is based on the beneficiary’s treating physician’s determination. 22 C.C.R. 53887(a)(3). 135. Respondents breached their ministerial duty in Petitioners’ cases because Respondents failed to use the correct standard required by 22 C.C.R. 53887(a)(3), which relies on Petitioners’ treating physicians’ determination of medical stability. 30 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 136. Petitioners are beneficially interested in the outcome of this proceeding and have no other plain, speedy, or adequate remedy at law except by way of this writ of mandate. 137. An actual controversy has arisen and now exists between Petitioners and Respondents concerning their respective rights and duties under state law governing MERs. Petitioners desire a judicial determination of the rights and duties of the parties and a declaration as to whether Respondents’ practices as alleged herein violate state law. A judicial declaration is necessary and appropriate at this time so that all parties may ascertain their rights and duties under state law. Fourth Cause of Action Writ of Mandate Under Code Civil Proc. 1085 Against All Respondents (Failure to Humanely Administer Benefits to Which Beneficiaries Are Entitled) 138. Petitioners reallege and incorporate by reference each and every allegation contained in the above paragraphs as though fully set forth herein. 139. Respondents have failed to administer the Medi-Cal program promptly and humanely in a way that complies with the law. Welf. & Inst. Code 10000. Their administration of the Medi-Cal program has deprived Petitioners and other Medi-Cal beneficiaries the amount of aid to which [they are] entitled . . . . Id. 10500. 140. Petitioners are beneficially interested in the outcome of this proceeding and have no other plain, speedy, or adequate remedy at law except by way of this writ of mandate. 141. An actual controversy has arisen and now exists between Petitioners and Respondents concerning their respective rights and duties under state law governing the Medi- Cal program. Petitioners desire a judicial determination of the rights and duties of the parties and a declaration as to whether Respondents’ practices as alleged herein violate state law. A judicial declaration is necessary and appropriate at this time so that all parties may ascertain their rights and duties under state law. 31 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fifth Cause of Action Writ of Mandate Under Code Civil Proc. 1085 Against All Respondents (Denial of Rehearing) 142. Petitioners reallege and incorporates by reference each and every allegation contained in the above paragraphs as though fully set forth herein. 143. When a social services applicant or recipient requests a rehearing to contest an administrative order, Respondents have a ministerial duty under Welfare & Institutions Code 10960(c) to either grant or deny the request on a lawful ground and to explain the reasons and legal basis for the decision. 144. Respondents have failed to fulfill this duty because they denied Petitioner Lodin and other Medi-Cal beneficiaries’ rehearing requests without adequately explaining the reasons and legal basis for the decision. Respondents continue to use only boilerplate language to explain their reasons for denial. Respondents ignore their own due process violations, including ex parte contacts with the ALJs, and procedural violations that occurred during the hearing process in denying these rehearing requests. 145. Petitioners are beneficially interested in the outcome of this proceeding and have no other plain, speedy, or adequate remedy at law except by way of this writ of mandate. 146. An actual controversy has arisen and now exists between Petitioners and Respondents concerning their respective rights and duties under state law governing rehearing requests. Petitioners desire a judicial determination of the rights and duties of the parties and a declaration as to whether Respondents’ practices as alleged herein violate state law. A judicial declaration is necessary and appropriate at this time so that all parties may ascertain their rights and duties under state law. 32 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sixth Cause of Action Petitioners Kantor and Lodin Against All Respondents Relief from Illegal Expenditure of Public Funds (Violation of C.C.P. 526(a)) 147. Petitioners reallege and incorporate by reference each and every allegation contained in the above paragraphs as though fully set forth herein. 148. Petitioners Kantor and Lodin have paid a tax within and to the State of California within one year before commencement of this action. 149. Respondents have expended public funds in the promulgation and implementation of the unlawful policies and practice alleged in this petition and complaint. 150. Unless and until enjoined by this court, Respondents’ unlawful conduct will cause great and irreparable injury to petitioners in that respondents will continue to make illegal expenditures. 151. An actual controversy has arisen and now exists between Petitioners and Respondents concerning their respective rights and duties under state law prohibiting the expenditure of public funds on unlawful policies and practices. Petitioners desire a judicial determination of the rights and duties of the parties and a declaration as to whether Respondents’ practices as alleged herein violate state law. A judicial declaration is necessary and appropriate at this time so that all parties may ascertain their rights and duties under state law. REQUEST FOR RELIEF WHEREFORE, Petitioners request the following relief: 1. A peremptory writ of mandate prohibiting Respondents with regard to appeals of MERS denials from: (a) Proceeding to hearing without conducting a pre-hearing evaluation of the appeal and contacting the Medi-Cal beneficiary to attempt informal resolution of the case; 33 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (b) Preventing Medi-Cal beneficiaries from adequately accessing their case files and records; (c) Submitting written statements at the hearing that do not include facts and a summary of Respondents’ position specific to each individual case on appeal; (d) Appearing at the hearing only by statement of position and not in person; (e) Withholding the identities and qualifications of the medical reviewers who recommend the denial of Medi-Cal beneficiaries’ MERs; (f) Conducting MER fair hearings without allowing Medi-Cal beneficiaries to review all of the evidence Respondents relied on to support DHCS’ statements of position and addenda, including the names of the DHCS medical reviewers as well as their qualifications, opinions, and bases of their opinions; (g) Submitting evidence, supplemental statements of position, or addenda without giving the Medi-Cal beneficiary timely notice of the submission and a reasonable opportunity to respond; (h) Conducting MER fair hearings without using the correct standard to evaluate medical evidence according to the standard set forth in 22 C.C.R. 53887 as to the determination by the Medi-Cal beneficiary’s treating physician; (i) Upholding MER denials at fair hearings when any of the unlawful actions in the subsections (a) (h) occur; (j) Issuing final hearing decisions that improperly rely on conclusory and unsubstantiated statements about Medi-Cal beneficiaries’ medical conditions; and (k) Denying rehearing requests without adequately explaining the reasons for denial. 34 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Issue a preliminary and permanent injunction prohibiting Respondents with regard to appeals of MER denials from: (a) Proceeding to hearing without conducting a pre-hearing evaluation of the appeal and contacting the Medi-Cal beneficiary to attempt informal resolution of the case; (b) Preventing Medi-Cal beneficiaries from adequately accessing their case files and records; (c) Submitting written statements at the hearing that do not include facts and a summary of Respondents’ position specific to each individual case on appeal; (d) Appearing at the hearing only by statement of position and not in person; (e) Withholding the identities and qualifications of the medical reviewers who recommend the denial of Medi-Cal beneficiaries’ MERs; (f) Conducting MER fair hearings without allowing Medi-Cal beneficiaries to review all of the evidence Respondents relied on to support DHCS’ statements of position and addenda, including the names of the DHCS medical reviewers as well as their qualifications, opinions, and bases of their opinions; (g) Submitting evidence, supplemental statements of position, or addenda without giving the Medi-Cal beneficiary timely notice of the submission and a reasonable opportunity to respond; (h) Conducting MER fair hearings without using the correct standard to evaluate medical evidence according to the standard set forth in 22 C.C.R. 53887 as to the determination by the Medi-Cal beneficiary’s treating physician; (i) Upholding MER denials at fair hearings when any of the unlawful 35 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 actions in the subsections (a) (h) occur; (j) Issuing final hearing decisions that improperly rely on conclusory and unsubstantiated statements about Medi-Cal beneficiaries’ medical conditions; and (k) Denying rehearing requests without adequately explaining the reasons for denial. 3. Declare that the following actions by Respondents violate state law and regulation with regard to appeals of MER denials: (a) Proceeding to hearing without conducting a pre-hearing evaluation of the appeal and contacting the Medi-Cal beneficiary to attempt informal resolution of the case; (b) Preventing Medi-Cal beneficiaries from adequately accessing their case files and records; (c) Submitting written statements at the hearing that do not include facts and a summary of Respondents’ position specific to each individual case on appeal; (d) Appearing at the hearing only by statement of position and not in person; (e) Withholding the identities and qualifications of the medical reviewers who recommend the denial of Medi-Cal beneficiaries’ MERs; (f) Conducting MER fair hearings without allowing Medi-Cal beneficiaries to review all of the evidence Respondents relied on to support DHCS’ statements of position and addenda, including the names of the DHCS medical reviewers as well as their qualifications, opinions, and bases of their opinions; (g) Submitting evidence, supplemental statements of position, or addenda without giving the Medi-Cal beneficiary timely notice of the submission 36 VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and a reasonable opportunity to respond; (h) Conducting MER fair hearings without using the correct standard to evaluate medical evidence according to the standard set forth in 22 C.C.R. 53887 as to the determination by the Medi-Cal beneficiary’s treating physician; (i) Upholding MER denials at fair hearings when any of the unlawful actions in the subsections (a) (h) occur; (j) Issuing final hearing decisions that improperly rely on conclusory and unsubstantiated statements about Medi-Cal beneficiaries’ medical conditions; and (k) Denying rehearing requests without adequately explaining the reasons for denial. 4. Reasonable costs of suit. 5. An award of attorneys’ fees payable to petitioners’ counsel. 6. Such other relief as this Court may deem just and proper. DATED: September 19, 2017 Respectfully submitted, _______________________________ By: Helen Tran for NEIGHBORHOOD LEGAL SERVICES OF LOS ANGELES COUNTY WESTERN CENTER ON LAW & POVERTY Attorneys for Petitioners asmith Typewritten Text 37 asmith Typewritten Text VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF asmith Typewritten Text 38 asmith Typewritten Text VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF asmith Typewritten Text VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF asmith Typewritten Text 39 Robbins-Verified Petition for Writ of Mandate, 9-19-17 Verified Petition for Writ of Mandate and Complaint for Injunctive and Declaratory Relief INTRODUCTION PARTIES JURISDICTION AND VENUE STATUTORY AND REGULATORY FRAMEWORK Overview of Medi-Cal Statutes and Regulations Enrollment in Medi-Cal Managed Care Medical Exemption Requests (MERs) Notice and Hearing Requirements Evidence in the Administrative Hearing Rehearing STATEMENT OF FACTS Petitioner Brendon Robbins Petitioner Inna Kantor Petitioner Al-Muzzamil Lodin CAUSES OF ACTION First Cause of Action Second Cause of Action Third Cause of Action Fourth Cause of Action Fifth Cause of Action Sixth Cause of Action REQUEST FOR RELIEF Robbins-Robbins Verification Robbins-Kantor Verification Robbins-Lodin Verification ”

Document Romain v. Sonnier – ABAWDS Class Action Case

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“[bookmark: _GoBack]Case 2:15-cv-06942 Document 1 Filed 12\/18\/15 Page 1 of 29 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA Civil Action No.Lisa Romain, Stacey Gibson, Joanika Davis, Schevelli Robertson, Jericho Macklin, Dameion Williams, Brian Trinchard, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs, v. SUZY SONNIER, in her official capacity as Secretary of Louisiana Department of Children and Family Services, Defendant. CLASS ACTION CLASS ACTION C O M P L A I N T I. PRELIMINARY STATEMENT 1. Named plaintiffs and the class they seek to represent are indigent adult recipients of Supplemental Nutrition Assistance Program ( SNAP ), commonly known as food stamps, threatened with termination of their SNAP benefits, effective January 1, 2016, by the Louisiana Department of Children and Family Social Services ( DCFS ). These terminations result from the Defendant’s flawed and hasty implementation of a complex federal law limiting SNAP benefits to three (3) months in a thirty-six (36) month period for adults who are determined to be Able-Bodied Adults without Dependents ( ABAWD ), unless the adult meets defined work requirements. 2. For eighteen years, Defendant and her predecessors consistently sought and obtained a waiver of the ABAWD requirements from the United States Department of Agriculture ( USDA ). The waiver was based on the state’s high unemployment. Early this 1 Case 2:15-cv-06942 Document 1 Filed 12\/18\/15 Page 2 of 29 year, Defendant chose, for the first time, notwithstanding a continuing high unemployment rate, to not renew the waiver. As a consequence, the waiver expired on September 30, 2015 and ABAWDs throughout the state became subject to the work requirements for the first time in 18 years. 3. However, as detailed below, Defendant failed to ensure that DCFS was equipped to handle the more than 62,000 SNAP recipients who would, all on October 1, 2015, become subject to the ABAWD requirements. As a consequence, Defendant’s threatened terminations of SNAP results from the DCFS’s pattern and practices of failing to assure that only those properly subject to the time-limit are terminated by: a) failing to provide adequate notice of the termination of SNAP, effective January 1, 2016 to plaintiffs and those similarly situated; b) failing to provide adequate notice to plaintiffs and those similarly situated of the applicable requirements and exemptions and the processes by which individuals can claim exemptions from the ABAWD work requirements and\/or show they are meeting such work requirements; and c) failing to fairly investigate, assess, and determine whether individuals are properly subject to the ABAWD time limit. As a result of these failures plaintiffs and those similarly situated are threatened with wrongful terminations of SNAP benefits. Defendant’s failures violate the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution, 7 U.S.C. 2020 (e)(10) and implementing regulations, 7 U.S.C. 2015 (o) and implementing regulations, and 7 U.S.C. 2014 (a). Without continued access to SNAP as mandated by Due Process and federal law, these individuals face hunger and serious health risks. 4. Accordingly, plaintiffs bring this action on behalf of themselves and all others similarly situated, to challenge the defendant’s policies and practices of terminating individuals without the notice and procedures mandated by the Food Stamp Act and implementing 2 Case 2:15-cv-06942 Document 1 Filed 12\/18\/15 Page 3 of 29 regulations and the Due Process Clause to assure Defendant’s fair and lawful application of the SNAP time limit. 5. Plaintiffs seek declaratory and permanent injunctive relief to enjoin the defendant, in her official capacity as Department Secretary, from terminating SNAP benefits without complying with Due Process and federal law. 6. Further, plaintiffs seek a temporary restraining order and preliminary injunction to stay Defendant from terminating SNAP for any ABAWD household based on the three month limit until such time as she can demonstrate to this Court that DCFS can operate the ABAWD program in conformity with the Food Stamp Act, implementing regulations, and the Due Process Clause of the United States Constitution. II. JURISDICTION AND VENUE 7. The Court’s subject matter jurisdiction over this action is conferred by 28 U.S.C. 1331. 8. Declaratory relief is authorized by 28 U.S.C. 2201(a) and 2202, and by Rule 57 of the Federal Rules of Civil Procedure. Injunctive relief is authorized by Rule 65 of the Federal Rules of Civil Procedure. 9. This action is brought pursuant to 42 U.S.C. 1983 to redress deprivations of the plaintiffs’ constitutional and federal statutory rights. 10. Venue is proper in this Court pursuant to 28 U.S.C. 1391(e) because a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this judicial district and because one or more of the Plaintiffs resides in this judicial district. III. PARTIES 11. Plaintiff Lisa Romain resides in New Orleans, Louisiana. 3 Case 2:15-cv-06942 Document 1 Filed 12\/18\/15 Page 4 of 29 12. Plaintiff Stacey Gibson resides in New Orleans, Louisiana. 13. Plaintiff Joanika Davis resides in New Orleans, Louisiana. 14. Plaintiff Schevella Robinson resides in New Orleans, Louisiana. 15. Plaintiff Jericho Macklin resides in New Orleans, Louisiana. 16. Plaintiff Dameion Williams resides in New Orleans, Lousiana. 17. Plaintiff Brian Trinchard resides in New Orleans, Louisiana. 18. Defendant Suzy Sonnier is the Secretary of the Louisiana Department of Children and Family Services and is sued in her official capacity. As Secretary, Defendant is responsible for, inter alia, the statewide operation and administration of the Louisiana Food Stamp Program, in compliance with the federal Food Stamp Program. La. R. S. 36.477 (B) (1). IV. CLASS ACTION ALLEGATIONS 19. Plaintiffs are SNAP recipients who sue on behalf of themselves and all others similarly situated, pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure. 20. The plaintiffs bring this action on behalf of themselves and on behalf of a class defined as follows: All Supplemental Nutrition Assistance Program recipients who have received or who will receive a notice from Defendant terminating their SNAP benefits because they have received SNAP for 3 out of 36 months without meeting the Able-Bodied Adult without Dependents work requirement. 21. The plaintiff class is so numerous that joinder is impracticable. 22. There are questions of law and fact common to the proposed class, including whether defendant’s policies and practices of terminating SNAP recipients without first determining whether they are correctly subject to ABAWD requirements deprives eligible individuals of SNAP in violation of the Food Stamp Act and implementing regulations and the Due Process Clause of the United States Constitution. 4 Case 2:15-cv-06942 Document 1 Filed 12\/18\/15 Page 5 of 29 23. The named plaintiffs’ claims are typical of the claims of the plaintiff class. The named plaintiffs and members of the class are SNAP recipients whom Defendant has determined are subject to the ABAWD requirements and time limit and have received notices that they are subject the time limit. 24. The named plaintiffs will fairly and adequately protect the interests of the proposed plaintiff class. In supporting their individual claims, the named plaintiffs will simultaneously advance the claims of absent class members. 25. Plaintiffs’ counsel are experienced in complex class litigation involving public benefit programs and civil rights laws. Counsel have the resources, expertise and experience to prosecute this action on behalf of the plaintiff class. 26. Plaintiffs’ claims satisfy the requirements of Rule 23(b)(2) of the Federal Rules of Civil Procedure, in that defendants have acted on grounds generally applicable to the proposed class, thereby making appropriate final injunctive relief and declaratory relief with respect to the proposed class as a whole. V. STATUTORY AND REGULATORY SCHEME A. Federal Supplemental Nutrition Assistance Program Purpose and Administration 27. Congress established the federally funded, state-administered Food Stamp Program in 1964, to safeguard the health and well-being of the Nation’s population by raising levels of nutrition among low-income households. Pub. L. No. 88-525, 2, 78 Stat. 703 (codified at 7 U.S.C. 2011). In order to alleviate . . . hunger and malnutrition, Congress enacted the Food Stamp Program to permit low-income households to obtain a more nutritious diet through normal channels of trade by increasing food purchasing power for all eligible households who apply for participation. Id.; 7 C.F.R. 271.1. 5 Case 2:15-cv-06942 Document 1 Filed 12\/18\/15 Page 6 of 29 28. Effective October 1, 2008, the federal Food Stamp Program was renamed the Supplemental Nutrition Assistance Program (SNAP) and the federal Food Stamp Act was renamed the Food and Nutrition Act of 2008. Food, Conservation, and Energy Act of 2008, Pub. L. No. 110-246, 4001 and 4002, 122 Stat. 1651, 1853-1860. 29. At the federal level, SNAP is administered by the USDA’s Food and Nutrition Service ( FNS ). 30. The federal government provides complete funding to the states for all benefits under SNAP, and at least 50% of the states’ administrative costs involved in their operation of the program. 7 U.S.C. 2013(a), 2019, 2025(a); 7 C.F.R. 277.1(b), 277.4. 31. Each state must designate a single state agency responsible for administering SNAP and complying with federal food stamp statutory and regulatory requirements. 7 U.S.C. 2020(a), (d), and (e); 7 C.F.R. 271.4(a), 277.4. The state agency’s responsibilities include the certification of eligible applicant households and the issuance of food stamp benefits to those households. 7 U.S.C. 2020(a)(1), (e). 32. Louisiana participates in SNAP. DCFS is the single state agency responsible for administering SNAP in Louisiana, in compliance with federal statutes and implementing FNS regulations. La. R. S. 36.477 (B) (1). B. Overview of Federal SNAP Food Stamp Program (SNAP) 1. General Eligibility Requirements 33. To be eligible for SNAP, a household’s gross non-excludable income must not exceed 130% of the federal poverty line, and its net income, after specified allowable exclusions and deductions, must be below the federal poverty line. Households with an elderly person or a person with a disability must only meet the net income test. 7 U.S.C. 2014(c). 6 Case 2:15-cv-06942 Document 1 Filed 12\/18\/15 Page 7 of 29 34. The maximum monthly SNAP benefit for a household of one is $194. http:\/\/www.fns.usda.gov\/snap\/eligibility. 35. In addition to meeting the income and assets tests in the federal SNAP law, households must comply with other eligibility requirements, such as those in 7 U.S.C. 2015, including the work requirement for ABAWDs in subsection (o). 36. The state agency must determine the eligibility of applicant households and certify their eligibility in accordance with the eligibility rules and procedures set forth in the federal Food Stamp Act and implementing regulations. See generally, 7 U.S.C. 2014 (a); 2020 (e) (3), (4), (9) and implementing regulations at 7 C.F.R. Part 273. 37. The state agency must certify households as eligible for a specified period of time, and households must then renew their eligibility (also called recertification) to receive SNAP for subsequent periods. 7 C.F.R. 273.10(f); 7 U.S.C. 2020 (e)(4); 7 C.F.R. 273.14. 38. Eligible households may be subject to requirements that they file periodic reports on their circumstances, according to the reporting system option chosen by the state, one of which is known as simplified reporting. 7 U.S.C. 2015 (c); 7 C.F.R. 273.12 (A)(5). 39. 7 U.S.C. 2014 (a) requires that [a]ssistance under this program shall be furnished to all eligible household who make application for such participation. 2. Requirements Regarding Work and Time-Limits for Able-Bodied Adults Without Dependents 40. 7 U.S.C. 2015 (o) (2) provides that no individual is eligible for SNAP if during the preceding 36-month period, the individual received SNAP for not less than 3 months (consecutive or otherwise) during which the individual did not engage in work as defined in 7 U.S.C. 2015 (o) (2) (A)-(C) or receive benefits pursuant to (o) (3)-(6) . The implementing 7 Case 2:15-cv-06942 Document 1 Filed 12\/18\/15 Page 8 of 29 regulation is 7 C.F.R. 273.24. This provision is commonly known as the ABAWD 3 month- time limit. 41. A State must implement 7 U.S.C. 2015 (o) (2) unless it applies for and gets the approval of the USDA Secretary for a waiver pursuant to subsection (4). Such waiver may apply to any group of individuals in the State if the USDA Secretary determines that the area in which the individuals reside has an unemployment over 10% or does not have enough jobs to provide employment for the individuals. 42. As set forth in the following paragraphs, 7 U.S.C. 2015 (o) and its implementing regulation, 7 C.F.R. 273.24, have detailed provisions defining the work requirement, exemptions from the work requirement, how months count toward the time limit, good cause for an individual’s temporary failure to meet the work requirements, and how an individual who has lost eligibility can regain eligibility. 43. Pursuant to 7 U.S.C. 2015 (o) (2) (A) (C), the work requirement is defined as a. working 20 or more hours a week, averaged monthly (7 U.S.C. 2015 (o) (2) (A)); b. participating in and complying with the requirements of a work program for 20 hours or more a week, as determined by the state agency; a work program means a program under title I of the Workforce Investment Act of 1998; a program under section 236 of the Trade Act of 1974; and a program of employment and training, other than a job search or job search training program, operated or supervised by a State or political subdivision of a State that meets standards approved by the Governor of the State, including activities under the State Employment and Training Program under 7 U.S.C. 2015 (d)(4) ((7 U.S.C. 8 Case 2:15-cv-06942 Document 1 Filed 12\/18\/15 Page 9 of 29 2015 (o) (2) (B) and (o) (1)); or c) participating in and complying with the requirements of a workfare program under 7 U.S.C. 2029 or a comparable program established by the State or political subdivision of the State (7 U.S.C. 2015 (o)(2)(C)). 44. Pursuant 7 U.S.C. 2015 (o) (3) (A) (E) and its implementing regulation, 7 C.F.R. 273.24 (c), individuals are exempt from the work requirement if they are: 1) under 18 or over 50 years of age; 2) medically certified as physically or mentally unfit for employment; 3) a parent or other member of a household with responsibility for a dependent child; 4) otherwise exempt from general SNAP work requirements under 7 U.S.C. 2015 (d) (2), as implemented by 7 C.F.R. 273.7 (b) (including on the basis that they are complying with the work requirements of another program or receiving unemployment compensation); or 4) a pregnant woman. 45. 7 C.F.R. 273.24 (b)(1) defines countable months for purposes of determining the 3-month time limit as months in which an individual receives benefits for the full month while not 1) exempt under 273.24 (c); 2) covered by a waiver under 7 U.S.C. 2015 (o)(4); 3) fulfilling the work requirement in 7 U.S.C. 2015 (o)(2); or receiving SNAP benefits that are pro-rated in accord with 7 C.F.R. 273.10. 46. 7 C.F.R. 273.24 (c) provides for a good cause exception for individuals who could not comply with the 20 hour a week average requirement because of temporary circumstances beyond the individual’s control, including but not limited to illness, illness of another household member requiring the presence of the member, a household emergency, or the unavailability of transportation. 9 Case 2:15-cv-06942 Document 1 Filed 12\/18\/15 Page 10 of 29 47. 7 U.S.C. 2015(o) (5) and its implementing regulation, 7 C.F.R. 273.24 (d) prescribes how an individual who has lost eligibility under subsection (2) can regain and maintain eligibility. 48. On November 19, 2015 USDA’s Food and Nutrition Service (FNS) issued guidance to States regarding the ABAWD Time Limit Policy and Program Access. http:\/\/www.fns.usda.gov\/sites\/default\/files\/snap\/ABAWD-Time-Limit-Policy-and-Program- Access-Memo-Nov2015.pdf. The purpose of the guidance is to explain what the Food Stamp Act and implementing regulations require of the states in implementing the ABAWD requirement. 49. The November 19, 2015 FNS Guidance states that: To comply with Federal law, States must do more than track ABAWDs. States must also carefully screen for exemption from the time limit and connect ABAWDs to the information and resources necessary to maintain eligibility consistent with federal requirements. Id. at 1. 50. The November 19, 2015 FNS Guidance also states that: State agencies are responsible for assessing an individual’s fitness for work methodically and comprehensively. The certification and recertification interview is critical in identifying fitness for work. Id. at 2. 51. The November 19, 2015 FNS Guidance further summarizes the good cause exception for failure to meet the ABAWD work requirement, how individuals can meet the work requirements, and how individuals can regain eligibility after losing it. Id. at 2-4. C. Notice and Hearing Requirements 52. When a state agency proposes to reduce or terminate a household’s SNAP benefits, federal law requires the agency to provide the household with opportunity for a fair 10 Case 2:15-cv-06942 Document 1 Filed 12\/18\/15 Page 11 of 29 hearing and continued benefits until the hearing decision. 7 U.S.C. 2020 (e)(10) and implementing regulations 7 C.F.R. 273.13, 273.15. 53. 7 C.F.R. 273.13(a), which is one of the regulations that implements 7 U.S.C. 20202(e)(10), requires the state agency to send timely and adequate advance notice before taking any action to terminate or reduce a household’s benefits within its certification period. As to adequate notice, 273.13(a)(2) provides , in relevant part, that the notice of adverse action shall be considered adequate if it explains in easily understandable language: The proposed action; [and] the reason for the proposed action. VI. FACTUAL ALLEGATIONS A. Facts Common to the Class 54. Until September 30, 2015, Louisiana had a USDA-approved waiver of the federal ABAWD time limit requirement. Defendant declined to seek a renewal of the waiver, and as of October 1, 2015 the ABAWD time limit requirement took effect throughout the state. 55. Louisiana has informed USDA’s Food and Nutrition Service (FNS) that it has 62,780 ABAWDs. 56. Defendant issued policies and procedures regarding SNAP Time-Limits for ABAWDS. Office of Family Support, CH. 4 B-1470 (November 1, 2015). According to the policies, the DCFS worker must determine if the household includes an ABAWD at application, at the midpoint of the certification period (simplified report), and at redetermination; and at these times, the policies provide for automatically sending an automated notice about the policy to each ABAWD. The policies also provide for an ABAWD Interviewing Guide for the agency worker to use in interviewing the household and a checklist to assist in the ABAWD determination. Id. at B-1476. 11 Case 2:15-cv-06942 Document 1 Filed 12\/18\/15 Page 12 of 29 57. However, Defendant’s policies do not address how the DCFS worker was to make the initial determination of ABAWD status on October 1, 2015 for ongoing cases that did not have an initial application, simplified report, or recertification pending when the new ABAWD time limit requirement took effect. 58. In September 2015, DCFS sent out generic letters, titled Important Information About the Supplemental Nutrition Assistance Program (SNAP) Time Limit (herein Information Letter ) about the new ABAWD Work Requirement that was to take effect on October 1, 2015 to those SNAP recipients whom it had determined subject to the new rule. The letter said You are getting this letter because our records show that you are age 18 through 49 and have to meet new work rules called the Able-Bodied Adult without Dependents (ABAWD) work requirement starting October 1, 2015. The Information Letter briefly described the new rule, the exemptions, and how to meet the requirement. It also gave a telephone number for assistance. 59. The Information Letter did not explain how or whether DCFS had determined that the recipient was already meeting the work requirement, what a recipient must do to show compliance with the work requirement or to claim an exemption, or how or when to present any information or claim to the agency. The Information Letter only stated that an ABAWD subject to the work requirement had to report changes (by the 10th of the month after the month when the change occurred) in hours worked if the changes resulted in the ABAWD working an average of less than 20 hours per week. 60. The Information Letter says that an exemption applies to those who have a physical or mental disability that keeps them from working. (emphasis added). This disability test imposes a stricter test than the exemption in 7 U.S.C. 2015(o)(3)(B), which exempts those 12 Case 2:15-cv-06942 Document 1 Filed 12\/18\/15 Page 13 of 29 medically certified as physically or mentally unfit for employment. See also, 7 C.F.R. 273.24 (c)(2). 61. Defendant’s Information Letter, in explaining that a person can meet the ABAWD work requirement by working in a job for 20 hours or more each week , does not explain that work includes work in exchange for goods or services (not just money) and unpaid or volunteer work. 62. As indicated by the facts of the named Plaintiffs below, DCFS did not provide additional information to those subject to the new requirement that would allow them to understand how the new rule applied to them individually, whether DCFS considered them to be in compliance with the new rule, how they could seek an exemption or demonstrate compliance, and when they could or should assert such claims or otherwise show compliance with ABAWD requirements 63. As indicated by the facts of the named Plaintiffs below, Defendant’s practices in implementing the new ABAWD requirement, effective October 1, 2015, for the tens of thousands of recipients it concluded were subject to the requirement were deficient because they failed to include in practice a fair system for 1) investigating the current status of individual recipients; 2) seeking relevant current information from such recipients to inform the agency’s decision of an individual’s status; 3) providing adequate information to individuals about exemptions, numerous means of complying with the work requirements, and the existence of good cause for temporarily failing to comply with the work requirements; 4) providing and using effective processes by which individuals could provide relevant information to the agency and receive determinations from the agency of their status, including determinations of whether the 13 Case 2:15-cv-06942 Document 1 Filed 12\/18\/15 Page 14 of 29 individual had good cause for temporary failure to comply with the work requirement; and 5) informing recipients of those processes and how to access them. 64. On or about December 1, 2015 DCFS sent out generic notices of SNAP Change\/Closure (Termination Notice) telling the recipient that SNAP will end 12\/31\/2015 due to a sanction to, upon information and belief, more than 50,000 persons. The December 1, 2015 notice stated that the named individual is disqualified as of January 1, 2016 because he or she received SNAP for 3 out of 36 months without meeting the work requirement. The Termination Notice does not explain the availability of a good cause exception for individuals who could not comply with the 20 hour a week average requirement because of temporary circumstances beyond the individual’s control, including but not limited to illness, illness of another household member requiring the presence of the member, a household emergency, or the unavailability of transportation as required by 7 C.F.R. 273.24 (c). The Termination Notice refers to exemptions without explaining them and has no individualized information about how the individual failed to meet the work requirement or qualify for an exemption. B. Facts of Individual Named Plaintiffs Lisa Romain 65. Lisa Romain is 49 years old. She lives with her husband, Kurt Romain, in Kenner, LA. 66. Ms. Romain worked for approximately 20 years for the United States Postal Service until 2008, when she had to resign, due to being diagnosed with serious medical conditions leading to physical impairment. 67. Ms. Romain and her husband Kurt Romain constitute the same SNAP household. After she stopped working because of her medical conditions in 2008, Mr. and Ms. Romain 14 Case 2:15-cv-06942 Document 1 Filed 12\/18\/15 Page 15 of 29 began to receive $234 per month in food stamp benefits. The Romain household recertifies its SNAP eligibility each year and has continued to receive $234 each month. 68. Mr. Romain receives $1,314 each month in Social Security Disability Insurance ( SSDI ) benefits. The Romain household has no other income except for this SSDI check and their monthly food stamps. 69. In September 2015, a DCFS caseworker asked Kurt for verification of Lisa’s medical condition. The reason for the request was unclear to Kurt. 70. In response to the caseworker’s request, Mr. and Ms. Romain obtained a letter from Daughters of Charity, a healthcare provider where Lisa Romain has been receiving medical care since 2011. The letter states that Ms. Romain is unable to work due to her medical condition. 71. A few days later, Kurt Romain brought the Daughters of Charity letter to the DCFS office and gave it to the front desk staff. The staff looked up his name in the database and said she would give the letter to their caseworker. The Romains have not heard back from DCFS regarding the letter. 72. In October 2015, Lisa received a letter from DCFS telling her about the ABAWD work requirements. The letter did not state that SNAP benefits would be terminated. 73. Ms. Romain did not think that the October 2015 letter applied to her because her husband had already given DCFS the letter about her medical conditions and their effects on her ability to work, in September 2015. 74. Lisa and Kurt received a letter dated December 8, 2015, which DCFS sent to both Mr. and Mrs. Romain, stating that Lisa will be disqualified from receiving SNAP benefits beginning January 1, 2016, because she was not meeting the ABAWD work requirement. 15 Case 2:15-cv-06942 Document 1 Filed 12\/18\/15 Page 16 of 29 75. The December 8, 2015, letter said that Lisa must work an average of 20 hours per week or participate in a job training at least 20 hours per week. In order to regain eligibility for SNAP, [she] must work or participate in a job training program at least 80 hours in a 30-day period or become exempt from the SNAP time limit. The letter also informed them that their household’s food stamps will be reduced to $24 each month since Lisa will lose all her benefits. 76. On December 14, 2015, Kurt went back to the DCFS office to submit another letter, dated December 14, 2015, from Daughters of Charity. The letter states that Lisa is unable to work due to her medical condition. The Romains have not heard back from DCFS. 77. In December 2015, Lisa visited an attorney, who helped her to request a fair hearing regarding the food stamps reduction. She has not received a hearing date. 78. Lisa Romain depends on food stamps to survive. She does not have any other source of income. Her filed application for SSDI benefits was denied in 2014. She is unable to apply for SSI, because Kurt’s SSDI allotment places them over income. Kurt’s SSDI benefits represents the only other income that they are able to depend on for rent, utilities and medications that they both need. If their food stamps are terminated, they will have difficulty meeting their nutritional needs. Stacey Gibson 79. Stacey Gibson is 43 years old. He has been homeless and living at the Salvation Army Homeless Shelter in New Orleans, Louisiana since 2013. 80. Mr. Gibson first applied for SNAP with DCFS in 2013. When he applied, Mr. Gibson stated on his application that he was homeless and gave the Salvation Army as his address. 81. Mr. Gibson receives $194 each month in SNAP. 82. Ms. Gibson has recertified several times for SNAP and neither his address nor his homeless status has changed. 16 Case 2:15-cv-06942 Document 1 Filed 12\/18\/15 Page 17 of 29 83. In October 2015, Mr. Gibson received a letter from DCFS telling him about the ABAWD work requirements. Mr. Gibson continued to try to find work as he had already been doing. 84. In December, Mr. Gibson received another letter from DCFS, telling him that he will no longer be getting SNAP as of January 1, 2016, because he was not meeting the ABAWD work requirement. 85. Mr. Gibson has have been looking for work, but has found it hard to find work in New Orleans. But, Mr. Gibson has not given up and continues to apply. 86. Mr. Gibson volunteers at the First Presbyterian Church for a few hours per week, but did not keep a record of her hours because he did not know that volunteer work could count as work to help him remain eligible under the new work requirements. Mr. Gibson learned of this for the first time when Sima Atri, from the New Orleans Workers’ Center for Racial Justice, came to speak at a church Mr. Gibson attends. 87. Mr. Gibson was not told how to go about showing that his volunteer work at First Presbyterian Church may count as work. He also never thought to record hours because he did not know that it would qualify as work. 88. The notices that Mr. Gibson received did not explain the manner in which to report volunteer time, to explain good cause for not finding work, or that being homeless may exempt him from the ABAWD rules. 89. Mr. Gibson has does not have any other income; he needs SNAP to survive. Joanika Davis 90. Ms. Davis was diagnosed with a serious psychological condition in 2012. 91. She take strong medications during the day and night, which make it very difficult to work. Her medications interfere with daily life activities. 92. Even finding unpaid work has alluded Ms. Davis as a result. 17 Case 2:15-cv-06942 Document 1 Filed 12\/18\/15 Page 18 of 29 93. Ms. Davis began receiving SNAP from the DCFS in 2012 after she was diagnosed and she receives $194 a month. She has been recertified for the same amount each year. 94. In June 2015, Ms. Davis was recertified for SNAP. Her recertification interview was on the phone. There was no live person. Ms. Davis called a number and answered questions that the computer asked her. 95. Ms. Davis could not discuss the impact of her medical condition with anyone during the recertification because it was an automated process. 96. In September 2015, Ms. Davis received a letter from DCFS that said that she would need to work to keep getting SNAP. 97. Ms. Davis tried many times to reach a worker at DCFS but kept getting automated messages. She was unable to get through to anyone. 98. Because Ms. Davis does not have and cannot afford transportation, she could not go the DCFS office. 99. In December 2015, Ms. Davis received a closure notice from DCFS telling her that her SNAP will be stopping beginning January 1, 2016, because she was not meeting the ABAWD work requirement. 100. Ms. Davis is not able to work. Ms. Davis was not informed by Defendant as to how she was supposed to meet the work requirement with her medical problems. Moreover, had Defendant screened Ms. Davis, she would have discovered that Ms. Davis was unfit to work and, therefore, exempt. Schevella Robertson 101. Schevella Robertson is 47 years old. She lives in New Orleans, Louisiana. 18 Case 2:15-cv-06942 Document 1 Filed 12\/18\/15 Page 19 of 29 102. She has been receiving food stamps most of her life. In October 2015, she received a notice from DCFS, stating that she would lose her SNAP benefits unless she met the ABAWD work requirements. 103. Prior to October 2015, Ms. Robertson had been working at Dollar Tree for three months, earning approximately $125 every two weeks. 104. In October 2015, she required a number of surgeries, which made it difficult for her to work, especially at Dollar Tree, since her job involved lifting heavy boxes. 105. Ms. Robertson told her caseworker by phone about her surgeries at the time they happened, because she knew the surgeries would make it hard for her to work. She told her DCFS caseworker that she could not work and had to quit her job because of her surgeries. The caseworker said she would need to work. 106. In December 2015, she received a DCFS notice informing her that her food stamps would be terminated beginning January 1, 2016, because she was not meeting the ABAWD work requirements. 107. After receiving the December 2015 notice, she called the number listed on the notice, but was not able to speak to anyone. Ms. Robertson was able to make an appointment to speak with her caseworker, but not until the morning of December 16, 2015. When she spoke with her caseworker, Ms. Robertson reminded the worker about her surgeries and about how that had made it hard to work. The case worker told her that since she had not worked from October to December, 2015, her food stamps would be terminated three months after October 1st. She did not ask for a fair hearing, because the date had passed for the receipt of continued benefits, by the time her case worker had called me back. 19 Case 2:15-cv-06942 Document 1 Filed 12\/18\/15 Page 20 of 29 108. Ms. Robertson is now able to work, but has not yet been able to find another job. When she spoke with her caseworker, the worker didn’t tell her that she could do volunteer work while she looked for paid work. Ms. Robertson is able to do volunteer work, and wants to. 109. Ms. Robertson spoke with Sima Atri at the New Orleans Workers’ Center for Racial Justice, who explained how volunteer work qualifies as work for the ABAWD work requirements. Ms. Robertson plans to start recording the hours of volunteer work she does, cleaning up her community. She will send her hours of work to DCFS, so that they are aware that she is completing 20 hours of work per week, which the October 2015 notice stated as an ABAWD requirement. 110. On December 16, 2015, after speaking with Sima Atri, Ms. Robertson called her caseworker, to ask about volunteer work satisfying the ABAWD work requirement. The caseworker told her that volunteer work or community service did not count as work for the ABAWD work requirement. She explained that even if Ms. Robertson performed 20 hours of volunteer work per week, she would not be meeting the work requirements. 111. On December 16, 2015, the caseworker also told Ms. Robertson that her food stamps had already been terminated. Ms. Robertson received the December Adverse action notice, but has still been receiving food stamps money during December 2015. 112. It is difficult for Ms. Robertson to pay cash for food. Her daughter pays Ms. Robertson’s rent of $50 per month, because she cannot afford to stay where she is living.. Losing my food stamps will increase the burden on her and her children. She has 11 children. She needs stamps to survive and take care of herself. 20 Case 2:15-cv-06942 Document 1 Filed 12\/18\/15 Page 21 of 29 Jericho Macklin 113. Plaintiff Jericho Macklin is 37 years old and lives alone in New Orleans, Louisiana. 114. Mr. Macklin used to work more than twenty (20) hours per week as a cook. In September 2015, he was diagnosed with a serious medical condition. He takes several medications that affect his short term memory, make him drowsy and cause him to have difficulties sleeping. When he became ill, he had to reduce his working hours to ten (10) hours per week. 115. He has been receiving SNAP periodically for many years from DCFS. He currently receives $194 each month in SNAP benefits. 116. Due to issues with his memory, Mr. Macklin does not recall getting a letter from DCFS in October. He does remember receiving a letter from DCFS in December 2015, telling him that his SNAP will terminate, because he is not meeting ABAWD work requirements. 117. No DCFS worker has explained to Mr. Macklin how to satisfy the ABAWD work requirements. No one at DCFS told him that his medical status might make him unfit for work and eligible to keep getting SNAP. 118. On December 12, 2015, after receiving the December letter informing him of the termination of his SNAP benefits, Mr. Macklin requested a fair hearing, with the assistance of an attorney. In this fair hearing request, he informed DCFS about his medical status. 119. On December 16, 2015, he received a call from a DCFS worker, who informed him that his benefits would terminate on December 31st. 120. He applied for a fair hearing before the deadline outlined in the December letter, so that his benefits would continue until his medical status would be assessed at his hearing, with 21 Case 2:15-cv-06942 Document 1 Filed 12\/18\/15 Page 22 of 29 respect to whether he would be exempted from the ABAWD work requirements. The DCFS worker told him that although he had applied for a fair hearing, his benefits would still terminate on December 31st. 121. On December 16, 2015, the DCFS worker also told Mr. Macklin that his health conditions would not have an effect on whether he would remain eligible as an ABAWD. The worker stated that the only relevant factor was whether or not he was working 20 hours a week. DCFS added that a medical note from a doctor stating that he was unfit for work was not sufficient to prove the effect of his medical condition on his fitness for work. Mr. Macklin had previously provided DCFS with a letter from his doctor with his diagnosis and medications. 122. Because he can only work approximately ten (10) hours per week due to his medical condition, Mr. Macklin does not have enough income to support himself without assistance. He depends on SNAP to meet his nutritional needs. He also has to take medications for his medical condition along with food. Dameion Williams 123. Dameion Williams is 34 years old. He has lived at the Ozanam Homeless Shelter in New Orleans, LA. 124. Mr. Williams has been volunteering approximately 60 hours per week at Ozanam Inn since October 2015, working in the kitchen. After speaking with Sima Atri from the New Orleans Workers’ Center for Racial Justice, he has been recording his volunteer hours, in order to verify his continued eligibility for food stamps. He is using the DCFS volunteer hours form and Ozanam Inn will verify his work hours. Mr. Williams submitted the volunteer hours form to DCFS on December 16, 2015. 22 Case 2:15-cv-06942 Document 1 Filed 12\/18\/15 Page 23 of 29 125. Before he began volunteering at Ozanam, Mr. Williams worked as a cook for a restaurant. The restaurant closed for renovations and he was laid off. He has been applying for work, but has not been able to find another job as a cook. 126. In approximately September 2015, Mr. Williams applied for food stamps at the DCFS office in New Orleans. I got $194 in food stamps in September and in October. 127. When he applied for food stamps, a DCFS caseworker told Mr. Williams that he would only get benefits for three months unless he found a job or enrolled in school. 128. Mr. Williams did not know that his volunteer work for Ozanam could count as work, for purposes of ABAWD eligibility. His caseworker did not tell him that volunteer work may satisfy the ABAWD work requirement. 129. Mr. Williams has not received any food stamps in December 2015. He received a closure letter in December, which stated that he would continue to receive food stamps until January 2016. 130. Mr. Williams does not have any other income. He needs food stamps to help survive. Brian Trinchard 131. Brian Trinchard is 43 years old. He has been living at Ozanam Homeless Shelter in New Orleans, Louisiana, since August 2015. 132. Mr. Trinchard volunteers at Ozanam Homeless Shelter about sixty (60) hours per week in the kitchen. He volunteers cleaning tables, setting people up to eat, working at the front desk, and keeping the center organized. He gets a weekly stipend of $15. He has no other source of income. 23 Case 2:15-cv-06942 Document 1 Filed 12\/18\/15 Page 24 of 29 133. Before he was incarcerated Mr. Trinchard worked periodically in construction for many years. He came to Ozanam Homeless Shelter soon after he was released in August, 2015. 134. In September 2015, Mr. Trinchard applied for food stamps at the DCFS local office. He was approved for $194 per month. 135. When Mr.Trinchard met with a DCFS caseworker during the SNAP application process, he was told that he would receive food stamps for only three (3) months unless he got a job or enrolled in school. 136. His caseworker did not ask Mr. Trinchard during the initial application if he was doing volunteer work. No DCFS worker informed him during his application process that his volunteer work at Ozanam Homeless Shelter might make him eligible to keep getting food stamps after the three month ABAWD period. For this reason, Mr. Trinchard did not report this information to his caseworker. 137. Mr. Trinchard received food stamps in October and November 2015. 138. In December 2015, he got a letter from DCFS telling him that his food stamps will end because he is not meeting the ABAWD work requirements. 139. When Mr. Trinchard got the December 2015 letter, he immediately went to Job One to register for work. He has not yet been called for work. When he get paid work, Mr. Trinchard still is unaware of how to inform DCFS that he is working and meeting the work requirements, so that his food stamps can continue. 140. On December 15, 2015, Sima Atri from the New Orleans Workers’ Center for Racial Justice informed Mr. Trinchard that he should submit a record of his volunteer hours to DCFS, to demonstrate that he has been working over 20 hours per week. He has now recorded 24 Case 2:15-cv-06942 Document 1 Filed 12\/18\/15 Page 25 of 29 his hours and they have been verified by Ozanam Inn. and Mr. Trinchard plans to send them to DCFS. 141. Mr. Trinchard needs his food stamps to help survive. He already lives in a shelter because he cannot afford rent. VII. CLAIMS FOR RELIEF FIRST CLAIM: 142. Defendant’s policy and practice of sending inadequate termination notices to ABAWDs violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution and 7 U.S.C. 2020 (e) (10) and its implementing regulation, 7 C.F.R. 273.13(a)(2). SECOND CLAIM: 143. Defendant’s policy and practice of terminating SNAP recipients without providing such recipients at the time of implementation of the new ABAWD requirement on October 1, 2015 with adequate notice and accurate information about the new requirement, how to meet the requirement, how to demonstrate compliance to the agency, how to claim an exemption, the existence of good cause for failure to comply temporarily and how to claim good cause, and how to regain eligibility after reaching the time limit violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution and 7 U.S.C. 2015(o) and its implementing regulation, 7 C.F.R. 273.24, and 7 U.S.C. 2014(a). THIRD CLAIM: 144. Defendant’s policy and practice of terminating SNAP recipients without having done an individual investigation, assessment and determination of the status of each SNAP recipient and without having a fair system to inform recipients about the new eligibility rules and 25 Case 2:15-cv-06942 Document 1 Filed 12\/18\/15 Page 26 of 29 provide an opportunity for individuals to demonstrate their compliance, their eligibility for an exemption, and their eligibility for a good cause exception violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution, 7 U.S.C. 2015 (o) and its implementing regulation, 7 C.F.R. 273.24, and 7 U.S.C. 2014 (a). REQUEST FOR RELIEF WHEREFORE, plaintiffs respectfully request that this Court: A. Assume jurisdiction of this matter; B. Certify this action as a class action pursuant to Fed. R. Civ. P. 23(a) and (b)(2) with respect to the proposed class identified herein; C. Enter a declaratory judgment, in accordance with 28 U.S.C. 2201 and Fed. R. Civ. P. 57, declaring that the defendant’s policies and practices of: i) failing or refusing to send adequate termination notices to ABAWDs violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution and 7 U.S.C. 2020 (e) (10) and its implementing regulation, 7 C.F.R. 273.13(a)(2). ii) terminating SNAP recipients without providing them at the time of implementation of the new ABAWD requirement on October 1, 2015 adequate notice and accurate information about the new requirement, how to meet the requirement, how to demonstrate compliance to the agency, how to claim an exemption, the existence of good cause for failure to comply temporarily and how to claim good cause, and how to regain eligibility after reaching the time limit violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution and 7 U.S.C. 2015 (o) and its implementing regulation, 7 C.F.R. 273.24, and 7 U.S.C. 2014 (a); and 26 Case 2:15-cv-06942 Document 1 Filed 12\/18\/15 Page 27 of 29 iii) terminating SNAP recipients for non-compliance with the ABAWD requirement without having done an individual investigation, assessment and determination of the status of each SNAP recipient and without having a fair system to inform recipients about the new ABAWD eligibility rules and provide an opportunity for individuals to demonstrate their compliance, their eligibility for an exemption, and their eligibility for a good cause exception violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution, 7 U.S.C. 2015 (o) and its implementing regulation, 7 C.F.R. 273.24, and 7 U.S.C. 2014 (a). D. Enter a temporary restraining order and preliminary and permanent injunctive relief, pursuant to 28 U.S.C. 2202 and Fed. R. Civ. P. 65, to stay Defendant from terminating SNAP for any ABAWD household based on the time limit as of January 1, 2016 and thereafter until such time as she can demonstrate to this Court that DCFS can operate the ABAWD program in conformity with the Food Stamp Act, implementing regulations, and the Due Process Clause of the United States Constitution. E. Award plaintiffs their costs and reasonable attorneys’ fees, pursuant to 42 U.S.C. 1988; and F. Order such other, further, or different relief as the Court may deem just and proper. Dated: December 18, 2015 New Orleans, Louisiana Respectfully submitted, William P. Quigley #07669 Loyola University New Orleans College of Law 27 Case 2:15-cv-06942 Document 1 Filed 12\/18\/15 Page 28 of 29 7214 St. Charles Avenue New Orleans, LA 70118 Cell 504.710.3074 [email protected] Jennifer J. Rosenbaum [email protected] Admitted to Practice in the Eastern District of Louisiana La. Bar No. 31946 Sima Atri Alaska Bar # 1512121 [email protected] NEW ORLEANS WORKERS’ CENTER FOR RACIAL JUSTICE 217 N. Prieur St. New Orleans, LA 70112 Telephone: (504) 309-5165 Facsimile: (504) 309-5205 NATIONAL CENTER FOR LAW & ECONOMIC JUSTICE, INC. Marc Cohan* Mary R. Mannix* Greg Bass* Francisca D. Fajana* 275 Seventh Avenue, Suite 1506 New York, NY 10001 Tel: (212) 633-6967 Counsel for Plaintiffs and Proposed Class Counsel By: William P. Quigley William P. Quigley *Pending pro hac vice admission Counsel for Plaintiffs and Proposed Class Counsel 28 Case 2:15-cv-06942 Document 1 Filed 12\/18\/15 Page 29 of 29 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Motion for Class Certification and accompanying Memorandum of Law in Support of the Motion was served by United States Mail, postage pre-paid, on the following this 18th day of December, 2015. By: William P. Quigley William P. Quigley Counsel for Plaintiffs and Proposed Class Counsel 29 DECLARATION I, Lisa Romain, hereby declare under the pains and penalties of perjury the following to be true and correct: 1. I make the following statement based on personal knowledge\u00b7. 2. I am 49 years old. I live with my husband, Kurt Romain, in Kenner, LA. 3. I worked for about 20 years for the United States Postal Service until 2008 when I had to resign. I had been sick for a number of years but then had to leave when my conditions got progressively worse. I was diagnosed with a serious skeletal disorder, a hormonal disease, and a sleep related disorder. I have severe pain in my legs, knees and feet which make it difficult for me to stand for an extended period of time. I also have high blood pressure. 4. I am part ofmy husband, Kurt Romain’s, SNAP household. We receive $234 a month in food stamp benefits. 5. My husband, Kurt, is on SSDI and gets $1,314.00 each month. Our household has no other income except for Kurt’s SSDI check and our monthly food stamps. 6. In May 2015, our LA Department of Children and Family Services (DCFS) caseworker asked Kurt for verification of my medical condition. When I asked Kurt why she needed that information, he told me that she might be a new worker. 7. In response to the caseworker’s request, Kurt obtained a letter from Daughters of Charity Health Centers, a healthcare provider where I have been getting medical care since 2011, saying that I am unable to work due to my medical condition. 8. A few days later, Kurt brought the Daughters of Charity letter to the DCFS’s office and gave it to the front desk staff. 9. In October 2015, Kurt received a letter from the DCFS telling us about Able Bodied Adults Without Dependents (ABAWD) work requirements. The letter did not require a response from us. I 0. I did not think that the ABAWD letter applied to me because Kurt had already given DCFS a letter about my medical conditions and their effects on my ability to work in May. 11. In early December, we received a letter dated December 8, 2015, from DCFS stating that I will be disqualified from receiving SNAP benefits beginning January 1, 2016, because I was not meeting the ABAWD work requirement. I have attached the letter as # 1. 12. The DCFS December 8, 2015, letter said that I \”must work an average of20 hours per week or participate in a job training at least 20 hours per week. In order to regain eligibility for SNAP, [I] must work or participate in a job training program at least 80 hours in a 30-day period or become exempt from the SNAP time limit.\” 13. The DCFS December 8, 2015, letter also informed us that our household’s food stamps will be reduced to $24 each month since I will lose all my benefits. 14. No one at DCFS has contacted me to explain how I should go about satisfying the ABAWD work requirement with my medical condition. 15. Kurt brought another letter dated December 14, 2015, from the Daughters of Charity Health Centers stating that I am \”currently unable to work due to [my] condition\” to the DCFS office after we received the December 8 food stamps reduction letter. I have attached the Daughters of Charity letter as #2. 16. In December 2015, Kurt and I met with a lawyer to get legal help with our food stamps reduction. They helped me request a fair hearing. I do not yet have a hearing date. I do not know what will happen as of January 1, 2016, when our food stamps will be only $24. 17. I do not have any other source of income. My application for Social Security Disability which I submitted in 2014 was denied because I applied too late. I cannot apply for SSI because Kurt’s SSDI puts us slightly over-income. 18 I depend on Kurt’s SSDI as our sole source of income other than food stamps. If my food stamps are stopped, we will not be able to eat. 19. I am willing to serve as a class representative in this lawsuit on behalf of myself and other low-income individuals living in Louisiana who face the loss of SNAP benefits to which they are entitled. 20. My lawyers have informed me of my responsibilities as a class representative. 21. As a representative of a plaintiff class harmed by the same unlawful conduct, I am willing to protect and advance the interests of the plaintiff class rather than acting in my sole interest. [image: ],) Dated: Dtt,J ,WjJ [image: ] SNM’ 1:1A 1-lnv 11\/15 05\/11 lss11e Obsnl(1to j l( ;,\”,I 1\\ IP No: 500223 7 —–\u00b7\u00b7\u00b7\u00b7– Ye; \u25a1N;; Dale: 12\/8\/2015 LA Dept. of Children ancl Family Se,vices P 0. Box 260031 Baton Ro11qe, LI\\ \/0826 0031 — . – ——- ———- 1\\dvnnce Notice of Adverse Actirn, IZl Notice Expiration Date: 12\/21\/2015 [image: ]l Act.,:Lon E;,q_d.res: 12\/14\/ ‘.( 1[ 1- ) Afl\u00b7er careful cor1Dideration of your situation, the follu1- irHJ dec.iRi,)n has been made regarding your Supplemental N11tri tion Assis I.ance Program r \u00b71 :NAP ) case: )’our monthly benefit will be for the renson(s) given below. $125.00 effective lJliOJ\/201G SCHEVELLI ROBERTSON is being disqualified beginning 1Januai:y as he or she has received SNAP benefits for 3 of 36 rnontlis wit.111 ,ut. meeting the Able–Bodied Adnlt.s Witi1out Dependents ( ABAWD) work requirement-.. SNAP .requirements are that non-exempt able bodied persons age 18-49 without dependents must work an average o.f 20 hours per week or participate in a job training pro.gram at least 20 hours per wee.k. In order to regain eligibility for SNAP, he or she must work 01 participate in a job training program at least BO hours in a 30 dr:ty period or become exempt from the SNAP time lim.i.t. ‘l’he receipt of a Louisiana Purchase Automated Benefit ca.rd. does not mean you have been determined eligible for benefits. If you do receive this card, keep it to use if you are found eligibJ.e to receive benefits in the future, For more information about progn-nns and services or for specific .i.nfonnation about your case, call 1-RBR-\u00b7 LAHELPU (l-888-524-3578). A. child whois a member nf a hnllRPhnJd recei.virlg asRi Rtnnce front SNA:1-‘ fir FITAP may be eligible for free meal benefits at school. You shonld ,.:ontacl\u00b7 your local school :for information on free meal benefit.B [nr school meals. FAIR HEARING EXPLANA ‘ION CASE rn, 36 XXXXX4691 NAME: SCHEVELLI ROBER’ISCll\”I If you disagree with the above decision, yo11 rna.y diHcuss il wit.h a supervisor in the local Department of Child1en and F,1m:\\ ly Oervices. You may reques L a fair hearing but yon mus l: do :.;i, on 01: before 02\/2q\/2016.If youi benefits are being reduced or closed a11d you request a fair Hearing on or before 12\/14\/2015, your behefits can be continued at the current. level ‘Unless you i.ndica.te you do not w;int. them continued. If your benefits are continued, they will be continued c1t that level until the hearing or the end of yoLu: certification period whichever is sooner. A fair hearing may be requested by completing the sect.i.on below And mailing it or delivering it to the local DCFS. You may be Page 2 of2 represented at the hearing by an authorized representative, such as legal counsel, relative, friend, or other spokesperson, or you may represent yourself. For free legal advice, call (504) 529-1000. In the space provided, give the reason you are requesting a fair hearing. COMPLETE AND SIGN ONLY IF YOU WISH TO REQUEST A FAIR HEARING. Complete this section and sign below if you wish to appeal the decision on your caae. Do you want to continue receiliJg the receive until the hearing? (l..J yes amount-of benefits you now ( ) no If the final decision is in your favor, retroactive benefits will be issued if appropriate. IF THE DECISION OF THE LOCAL OFFICE IS UPHELD, ALL INELIGIBLE BENEFI’rS WILL BE SUBJECT TO REPAYMENT. [image: ]Use this space to tell why you want a hearing. The reason:A,l’C( 1 , oPI[ o1a J Z i ‘1 \/5 Date .5,,l\/: .51..5 \u00b79a Phone No. . Signature of Authorized Representative Address of Authorized Rep\”resentative City State Zip CodeOR Return to: DCFS ORLEANS- MIDTOWN -ES P.O. BOX 260031. BATON ROUGE, LA 70826-00J.1 DECLARATION I, Jericho Macklin, hereby swear under pains and penalties of perjury that the following is true and correct: 1. I make the following statement based on personal knowledge. 2. I am 37 years old. I live in New Orleans, LA. 3. I used to work more than twenty (20) hours per week as a cook at New Orleans Hamburger and Seafood. When I became ill I had to drop down to ten (10) hours per week. 4. In September 2015, I was diagnosed with a serious medical condition. I take several medications that affect my short term memory, make me drowsy and cause me to have difficulties sleeping. 5. I have been receiving food stamps on and off for many years from the Department of Children and Family Services (DCFS). I currently get $194 each month. 6. I do not recall getting a letter from DCFS in October. My memory issues make it hard for me to remember things. But I do remember receiving a letter from DCFS in December 2015, telling me that my food stamps will end because I am not meeting work requirements. The letter is attached as# 1. 7. No one at DCFS told me how to satisfy work requirements. No one at DCFS told me that my medical status might make me unfit for work and eligible to keep getting food stamps. 8. When I got the December letter ending my food stamps, I spoke with a lawyer. They helped me request a fair hearing on December 12th In this fair hearing request, I informed DCFS about my medical status. 9. On December 16’1\\ I received a call from the Department of Children and Family Services. DCFS told me that my benefits would terminate on December 31st I applied for a fair hearing before the deadline outlined in my letter so that my benefits would continue until my hearing when they could determine how my medical status impacts my status to be exempted from the new work requirements. DCFS said that although I had applied for a fair hearing, my benefits would still terminate on the 31st 10. I provided DCFS with a letter from my doctor explaining my diagnosis and medications. DCFS said they wanted another letter from the doctor saying that my medications counteract with my diagnosis and impede my ability to work. 11. Because I can only work about ten (10) hours per week due to my medical condition, I don’t have enough income to support myself without assistance. I depend on food stamps to eat. I have to take medications for my medical condition. Taking these medications is a matter of life and death for me. I have to take them for the rest of my life. These medications must be taken along with food. I also have to eat to remain healthy. I need my food stamps to survive because I will be forced to choose between my life-saving medicines and food. 12. I am willing to serve as a class representative in this lawsuit on behalf of myself and other needy individuals living in Louisiana who face the loss of SNAP benefits to which they are entitled. 13. My lawyers have informed me of my responsibilities as a class representative. 14. [image: ]As a representative of a plaintiff class harmed by the same unlawful conduct, I am willing to protect and advance the interests of the plaintiff class rather than acting in my sole interest. Dated:12- lz 15\u00b7r r, ; f’age 1 DCFS ORLEANS- MIDTOWN -ES P.O. BOX260031 BATON ROUGE, LA 70826-0031 \/W\/&&f#c?bt – NEW ORLEANS, LA 70126 DATE: CASE ID: WORKER ID: CID: 12\/01\/2015 36 .. tt 9900 C16 001140033 [image: ]001834 . -, \u00b7\u00b7., .- SNAP CHANGE\/CLOSURE Dear JERICHO MACKLIN: Advance Notice of Adverse Action Expires: 12\/14\/2015 A.Et:8X careful c,,r1slderatlon of yol.lr situation, the following d!.::l:cision has been made regarding your Supplemental Nutrition Assistance Program (SNAP) case, Your monthly benefit will end 12\/31\/2015 for the reasons given below. A member of your household has been disqualified due to a sanction. Your shelter expenses, which may include rent or mortgage, home insurance, prope:rty tax, utilities, or other shelter expenses, have changed. JERICHO MACKLIN is being disqualified beginning January as he or she has received SNAP benefits for 3 of 36 months without meeting the Able-Bodied Adults Without Dependents(ABAWD) worJt requirement. SNAP requirements are that non-exempt able bodied persons\u00b7age 18 49 without dependents must work an average of 20 hours per week or participate in a job training program at least 20 hours per week. In order to regain eligibility for SNAP, he or she must work or participate in a job training program at least 80 hours in _a 30 day period or become exempt from the SNAP time limit. The receipt of a Louisiana Purchase Automated Benefit card does not mean you have been determined eligible for benefits. If you do receive this card, keep it to use if you are found eligible to receive benefits in the future. For more information abouc )?rog:rains and services or for s)?ecif1c information about your case, call 1-888- LAHELPU (1-888-524-3578). A child who is a member of a household receiving assistance froll) SNAP or FITAP may be eligible for free meal benefits at school. You should contact your local school for information on free meal benefits for school meals. FAIR HEARING EXP.Li\\JllATION CASE ID: 36 XXXXX9900 NAME: JERICHO MACKLIN If you disagree with the above decision, you may discuss it with a su)?ervisor in the local Department of Children and Family services. You may request a fair hearing but you must do so on or before ’02\/29\/2016.If your benefits are being reduced or closed and you request a fair Hearing on o-r before 12\/14\/2015, your benefits can be continued at the current level unless you indicate you do not want. them continued. If your benefits are continued, they will be Page 2 of: ..continued .at..that. level until thcffi;lz4t GW’M lf{jflll!fa-i)so.}. l$’c&-lo (bo-f!_.. 1: r,tiJ.Jvl;f o\/flQ,,,tl-1 WCJZ1. u.\u00a3_ \u00b7fn\/\u00a3..111(\/,, X lvtl1 k.{!\/lA {,t;{t- \” off\u00b7 f:ie.{‘4illl, \u00b7 c rn tef 11\/Cv\/:Jt , Tu 1f:1\/lffl..,,.J:\/24,.u,:,.iJ hdf,v 1!_-. c\\:J ; B, \u00b7 1,aH, ttlwa711 ttf!!yt111 jrYJ’!i_\u00b71 ut9rt1&7, do, c ! \/1:i;feih, r. J\/.tWl,, hll.d..\/Jad’fw:Ct\u00ae iii;qq1ar1LI y hJ.Ne, c’.dlilit Cj-, I lltMI a \/21trzllilw fl\/ttlifu.iof ,jdf4i}\/2111;n J;am 1vt.,f:!p1u1 to b. ,,tf!&,fo i e\u00a3b, [image: ]ii !Jea,1u6.v 14 2015′ !\u00b7 \u00b7, RAMl!flA. DECLARATION I, Greg ,hereby swears under pains and penalties of perjury as follows: 1. I make the following statement based on personal knowledge. 2. I am 30 years old with no dependents. I live in New Orleans, LA at Ozanam Inn. 3. On November 25, 2015, I applied for food stamps. I received a call the next week about my application. My caseworker explained that as of October, there were new work requirements for food stamps so I would have to work 20 hours a week continue getting food stamps passed three months. I told the worker that I did not think I would have a job in three months because it can take time to fiud work. I also told her that I am homeless and asked whether this would impact the work requirements. I have been homeless for 6 months. She said no, and that I would have to work or lose my food stamps. 4. The caseworker told me that I would have to prove that I am working. She didn’t tell me how I would show this proof. 5. My caseworker also did not explain that volunteering could qualify as work. I volunteer 60 hours a week at Ozanam Inn. 6. On December 7th, I received paperwork saying I qualified for food stamps. I also received the ABAWD work requirements notice stating I would have to work 20 hours a week in order to remain eligible. I was worried and wanted to figure out what was going on because I do not have a job right now. 7. On December 14’\”, I called Sima Atri, from the New Orleans Workers’ Center for Racial Justice. She explained that I should record my volunteer hours because they would qualify as work. She also said that I should send this to DCFS to prove that I am meeting the work requirements. I have started recording my work hours and will send them to DCFS every month. 8. Based on the notice, it was unclear that I could do volunteer work in order to not lose my food stamps. It was also unclear what a \”work program\” was. I work at the front desk at Ozanam Inn so I see what mail comes in for other homeless residents in this shelter. It seems like many people are getting these notices and I do not think people know what they mean. I don’t even think they uuderstand that many will lose their food stamps in January. 9. The food stamps office also knows that I am homeless. I gave Ozanam Inn as my address when I applied and I was living there before I applied for food stamps. The caseworker did not ask me questions about my homeless status. 10. I have not yet received a closure notice since I have just started my first month of food stamps. I hope that because I am recording volunteer hours, I will be complying with the work requirements. 11. I was approved for food stamps on December 7th but on December 17th, I have yet to receive my card still. I am supposed to get $194 per month in food stamps in December. 12. I have no income right now and really need these food stamps until I can find a full-time job. I want to work, it just takes time to find work. [image: ]Dated: \/2-17.- 201$\”\” DECLARATION I, Kim Piper, hereby declare under penalty of perjury that the following is true and correct: 1. I make the following statements based on personal knowledge. 2. I am very active and involved in my community and have helped people my whole life. I am the President of the Iberville Resident Council in New Orleans and served on the Iberville redevelopment working team. I was a resident in Iberville for over 30 years, and have lived in the Ninth Ward for the last two years. 3. Some of what I do to help people in my community is providing rides to seniors to go to the food bank, helping people find housing, representing residents and our interests at Housing Authority of New Orleans (HANO) meetings, and helping young mothers obtain food stamps and childcare assistance. 4. In helping people with their food stamp applications, I have heard a lot of complaints about the way the food stamp office processes applications and recertifications, and have also experienced some of these problems directly. 5. The most common complaint I hear is that the food stamp office does not receive information that people send them. Whether sent in by mail or by fax, many times when people send in the information the food stamps office has asked for, the food stamp office says they have not received it. 6. One young woman I work with faxed her information to the food stamp office, and was told they had not received it. She told her caseworker that she had a copy of her fax confirmation sheet, and the caseworker told her that did not matter. 7. I have personally mailed information as part of a young woman’s food stamp application, and the food stamp office told her they did not receive it. 8. If the food stamp office does not receive information they requested for an application or recertification, the office will cut off the person’s food stamps. The person then has to start the application process over again, which can take 30 days. During those 30 days, the person is not receiving any food stamps and their children are hungry for a month. 9. It is also difficult sometimes for people to get more copies of documents they have already collected and sent to the food stamp office. For example if a person sent in their paystubs and the food stamp office lost them, they do not have another copy of them to send in again. 10. Another problem for my community is the requirement to have a phone interview for applications or recertifications. In the past a person could interview in person at the food stamp office, but this is no longer allowed. This is a big problem because a lot of the people in my community do not have a phone, making it very difficult to complete a necessary step in the application or recertification process. 11. The food stamp offices in New Orleans are not effective at working with members of my community or having policies that work well at getting people their food stamps. Dated: fu. l] , ;),o1,:,- Signed: \u00bdo Y,.’fl o rs) Kim Piper DECLARATION I, Kenitha Williams, hereby declare under penalty of perjury that the following is true and correct: 1. I make the following statements based on personal knowledge. 2. I work at the Lantern Light project, part of the Rebuild Center of St. Joseph’s Church in New Orleans. The Rebuild Center provides a setting, resources, and opportunities for collaboration among Catholic and other faith-based organizations in the City ofNew Orleans for the service of those in need. The services we provide include serving lunch daily, providing showers, restrooms, laundry, and toiletries, running a food pantry, and assisting individuals in finding employment. 3. The Rebuild Center assists homeless men and women in finding jobs. We post job openings on our job board, and assist people in looking for job openings, writing resumes, and filling out job applications. We also provide computers and internet access for people to apply for the increasing number of jobs that only accept online applications. 4. I work with a lot of who have had a really hard time finding a job. They very much want to work but are unable to find employment. 5. I work with clients who have come to the center frequently over the past year and applied for many jobs, and still have not been hired after a year of applying. 6. I know a lot of unemployed people in our area will lose their food stamps as a result of the state’s refusal to continue to give nutrition assistance to the unemployed. Because of that, we expect to have a significant increase in requests for food boxes after January 1, 2016. We have barely been able to keep up with requests for food all year long during 2015. Second Harvest Food Bank, which supplies food to programs like ours, is already overwhelmed by the need, so we have had to look elsewhere for donations – \u00b7 local churches and schools. People losing their food stamps will be forced to depend more on food pantries like ours, as well as soup kitchens and other feeding programs. 7. Existing job training programs do not adequately serve the homeless population. 8. Some job training programs, such as the one offered by the Goodwill, require participants to have a birth certificate. Many homeless people do not have their birth certificate. The Rebuild Center assists people in obtaining copies of their birth certificate, but the process can be very lengthy, more than three or four months, especially if the person was born outside the state of Louisiana. For homeless people without any form of identification, the process of obtaining a birth certificate is longer. 9. A job training program that would truly benefit the population I serve would include an offer of employment from a company upon completing the program. Existing job training programs often require participants to jump through a lot of hoops and do not succeed in placing people with an actual job. 10. Homeless individuals do not have mailing addresses, which causes difficulty in obtaining food stamps. The ability to receive mail from the food stamps office is necessary in order to successfully complete an application or recertification application for food stamps. 11. The Rebuild Center offers the service that homeless individuals can use our mailing address to receive mail from the food stamps office. However, because of our resource limitations we are not able to hold all mail indefinitely, so individuals must check with us at least once every six weeks to receive mail. Many homeless individuals are transient and unable to check with us that frequently. We occasionally have to return mail to the food stamp office if an individual has not come to claim their mail in more than six weeks. 12. The Rebuild Center currently has more than 200 individuals signed up to receive mail at our address. Our clients have also told us that workers at the food stamps office have told them they can receive mail at the Rebuild Center, without speaking to Rebuild Center staff or signing up for our mail service. 13. Even if an individual is able to receive their mail from the food stamps office, there are still often problems in applying or recertifying for food stamps. The population I serve experiences frequent frustrations and delays in their interactions with the food stamp office. Often times with the food stamp office it seems that the right hand doesn’t know what the left hand is doing. 14. Clients tell me that it can take up to 1-2 months to receive their food stamps card after their application has been approved. 15. A required step in the application and recertification processes is a phone interview with a caseworker. In the past, these interviews could take place in person in the food stamps office, but now they are required to be over the phone. However, many people do not have phones. 16. Another common problem I hear from my clients is that they receive notice of their interview date after that date has already passed. And if the notice of the interview does arrive before the interview date, often the caseworker does not actually call at the date and time stated on the interview notice, but later in the day or the next day. 17. Many clients have also told me that the food stamp office does not receive paperwork that individuals send it. Many people have told me that they faxed paperwork to the food stamps office for their application or recertification and the office claimed they never received it. I have helped people fax information to the food stamp office from our fax machine at the Rebuild Center, and seen them successfully fax the same information five or six times, only to have the food stamp office say that they have not received it. 18. The decision to add a work requirement for adults to receive food stamps will only exacerbate the problems faced by the homeless population of New Orleans. Food Stamps are desperately needed by the population of homeless men and women that the Rebuild Center serves. DECLARATION I, Colette Tippy, hereby declare under penalty of perjury that the following is true and correct: 1. I make the following statements based on personal knowledge. 2. I am an organizer with STAND with Dignity, a membership-based project of the New Orleans Workers’ Center for Racial Justice in New Orleans. The New Orleans Workers’ Center is a non-profit advocacy organization that works to defend the rights of low\u00ad income workers and to increase community participation in public policy initiatives. 3. I have been working with low-income residents in New Orleans since 2006. 4. STAND works with low-wage and unemployed workers to provide know your rights education, to defend the rights of community members, and to promote just, equitable, and inclusive public policy. Stand’s members include public housing and Section 8 tenants, formerly incarcerated community members, men and women, young and old, working together to address the Black Jobs Crisis in New Orleans. Statistics show fifty-two percent of Black men are out of work in New Orleans. My experience confirms that it is very difficult for workers to find and keep a permanent job in this economy doing low-wage work, and especially hard to keep full time work. 5. My understanding is that the new work requirements will affect over 7000 New Orleans residents. The loss of benefits will not only hurt residents who rely on the support, it will hurt our city’s economy since food stamps recipients use their benefits in local businesses. 6. STAND has at least four members who received notice that their food stamps would be cut off on January 1, 2016, if they are not able to meet new work requirements. Two of these members are receiving their mail from the food stamps office at our office because they are homeless or marginally housed. 7. I have reviewed the letters our members received, and they do not include language about possibility of doing volunteer work to satisfy the new work requirement. The members who received these letters were not aware of how to comply with the new requirements when they received the letter, and are still not clear about what they need to do to comply now. 8. STAND members and other low-income people I have spoken with have told me that the food stamps office is not effective in the way they process applications and re\u00ad certifications. 9. The food stamps office has an ineffective system for receiving communications from people applying and recertifying. I have talked to numerous people who were cut off from their food stamps because the food stamps office claimed they did not receive a communication from a recertification, whether sent by fax or email or submitted online or in person when the recipients did in fact provide the necessary notification. 10. Many food stamp recipients I have spoken to have never seen their caseworker in person. 11. I have not met anyone who was given an individual assessment to determine if they are in fact subject to the new work requirement. 12. Residents I have spoken to understand that the state’s decision to not request a waiver of the work requirements is based in the goal of incentivizing people to work. I have been working with low-wage workers to increase employment opportunities for almost a decade, and I do not believe this approach will work. It will instead cause more harm to vulnerable people. 13. The notice provided to persons identified by DCFS as ABAWDs does not direct recipients to appropriate training programs or resources for job placement. The state’s stated interest in this program will not be served by this type of notice which does not provide additional employment opportunities to recipients. New Orleans needs jobs, and needs jobs that actually pay a living wage and are enough to actually support a family. Those opportunities are very difficult to find in Louisiana. 14. [image: ]STAND is eager to work with the State to apply for Employment and Training funds, and would like to work together to design better programs that actually work. An effective job training program places graduates in jobs. Training programs should offer guaranteed employment upon completion. The state should create these types of training programs; but they should not be created at the expense of critical baseline supports like the SNAP program. [image: ]Dated: Declaration under 28 USC 1746 I, Don Everard, do state under penalty of perjury of the laws of the US that the following is true and correct. 1. I have been the Director of Hope House, a catholic social service agency in the Irish Channel of New Orleans for 30 years. Hope House was founded by members of the Sisters of Mercy in 1969 and has been serving poor and working people of our neighborhood and city continuously since then. We have a food pantry that provides emergency food boxes for neighbors in need of food. We provide direct assistance to people facing eviction or utility turn off. We provide very affordable housing for low income households. Our job coach helps people find employment or enroll in college. We serve coffee and pastry to homeless people three mornings each week. We also operate a GED program. 2. Hope House sees a lot of people because our poverty rate in New Orleans is so high with more than one in every four people living in poverty. Loyola University estimated in 2013 that only 48 percent of African American men in New Orleans are employed. 3. As a result of working with poor people in our city for decades, I am personally familiar with hundreds of people who rely on SNAP food stamps to feed themselves or their families. Many are long term unemployed and many do not have stable living arrangements. Most are people who have tried very hard to support themselves by working over the years. But they struggle because of literacy challenges, inadequate educational opportunity, inadequate availability of care for physical and mental health issues, and the fact that unemployment is very high in our city. The homeless and those without stable housing have their days consumed with just trying to survive. They cannot get regular jobs when they carry their clothing and possessions around with them. 4. I know a lot of unemployed people in our area will lose their food stamps as a result of the state’s refusal to continue to give nutrition assistance to the unemployed. Because of that, we expect to have a significant increase in requests for food boxes after January 1, 2016. We have barely been able to keep up with requests for food all year long during 2015. Second Harvest Food Bank, which supplies food to programs like ours, is already overwhelmed by the need, so we have had to look elsewhere for donations – local churches and schools. People losing their food stamps will be forced to depend more on food pantries like ours, as well as soup kitchens and other feeding programs. 5. The decision not to seek SNAP benefits for the unemployed from the federal government will only add to a hunger crisis that already exists. And food pantries and feeding programs are already struggling to provide food to needy families. Nobody wins in this situation. [image: ] Don Everard Date N00 160 c Sen) aed Es Sen) aed Es em ee eS Al Ne A ET AE LOM Ap Lt siened: Ov en (Cif. Coumse,. | Weve Weer Ce eee ote. ‘Adine Wow Verh ca fon af Fai WOU \u00ab ee Ye Jywedte s fv December.’ Tegliea Cand qnature Coumse,. | Weve Weer Ce eee ote. ‘Adine Wow Verh ca fon af Fai WOU \u00ab ee Ye Jywedte s fv December.’ Tegliea Cand qnature AO AL hha AO AL hha Dated: LY 19\/ VOpe ie D4 Marten CUIBLITA METI Signed: (PLINY v arate Cl Cverurell lhirhe lhirhe ”

pdf Smith v. USDA, USDA failure to issue benefits if there is a government shutdown

Published on 01 December 2015 In Welfare Complaint Library 2488 downloads

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Smith v. USDA.pdf

” Case3:15-cv-04497 Document1 Filed09\/30\/15 Page1 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page2 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page3 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page4 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page5 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page6 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page7 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page8 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page9 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page10 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page11 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page12 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page13 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page14 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page15 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page16 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page17 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page18 of 18 ”

pdf Smith v. USDA, Federal Food Stamp Class Action Law Suit

Published on 04 June 2016 In Welfare Complaint Library 2277 downloads

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Smith v. USDA .pdf

” Case3:15-cv-04497 Document1 Filed09\/30\/15 Page1 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page2 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page3 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page4 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page5 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page6 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page7 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page8 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page9 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page10 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page11 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page12 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page13 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page14 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page15 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page16 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page17 of 18 Case3:15-cv-04497 Document1 Filed09\/30\/15 Page18 of 18 ”

pdf Soza v. Lightbourne – CDSS Answer Complaint for Writ of Mandate, Declaratory and Injunctive Relief

Published on 01 October 2018 In Welfare Complaint Library 1821 downloads

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Soza v. Lightbourne – CDSS Answer Complaint for Writ of Mandate, Declaratory and Injunctive Relief..pdf

” 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 XAVIER BECERRA Attorney General of California RICHARD T. WALDOW Supervising Deputy Attorney General GREGORY M. CRIBBS Deputy Attorney General State Bar No. 175642 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 269-6259 Fax: (213) 897-2805 E-mail: [email protected] Attorneys for Respondents California Department of Social Services and Will Lightbourne, in his official capacity as Director, California Department of Social Services Fee Exempt Per Govt. Code 6103 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES – CENTRAL DISTRICT JOE SOZA, ESTHER ORTEGA, Petitioners, v. WILL LIGHTBOURNE, in his official capacity as Director, California Department of Social Services; and the CALIFORNIA DEPARTMENT OF SOCIAL SERVICES, Respondents. Case No. BS172114 RESPONDENTS’ ANSWER TO FIRST AMENDED PETITION FOR WRIT OF AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (Code Civ. Proc. Sections 1085 AND 1094.5; Welf. & Inst. Code Section 10962) Dept: 86 Judge: Hon. Amy D. Hogue Action Filed: January 22, 2018 COME NOW respondents Will Lightbourne, as Director of the California Department of Social Services, and the California Department of Social Services (collectively, Department or respondents), in response to the \”First Amended Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief [Code of Civ. Proc., 1094.5, 1085; Welf. & Inst. Code 10962]\” (Petition), in the above-captioned action, and admit, deny and allege as follows: 1. Answering the allegations in paragraph 1 of the Petition, the Department asserts that there are no allegations contained therein that require admission or denial, and on that basis Respondents’ Answer to First Amended Petition for Writ of Mandate, etc. (BS172114) denies each and every purported allegation contained therein. To the extent that it can be construed that paragraph 1 of the Petition contains proper allegations, the Department lacks sufficient information or belief to enable it to admit or deny the matters alleged in paragraph 1 of the Petition, and on that basis denies each and every purported allegation contained therein. 2. Answering the allegations in the first and second sentences of paragraph 2 of the Petition, the Department lacks sufficient information or belief to enable it to admit or deny the matters alleged therein, and on that basis denies each and every allegation contained within the first and second sentences of paragraph 2 of the Petition. Answering the allegations in the third sentence of paragraph 2 of the Petition, the Department affirmatively asserts that on January 17, 2017, it adopted the Proposed Decision (Case No. 2016273045), denying petitioner Soza’s request for reimbursement of stolen CalFresh benefits in the amounts of $17.19, $61.66, $10.31, and $76.22. The Department further asserts that the Proposed Decision speaks for itself, and therefore the allegations regarding it do not require admission or denial. If a response is required, the Department denies all allegations that differ from the plain language of the Proposed Decision. Except as affirmatively asserted herein, the Department denies each and every remaining allegation contained in paragraph 2 of the Petition. 3. Answering the allegations in the first and second sentences of paragraph 3 of the Petition, the Department lacks sufficient information or belief to enable it to admit or deny the matters alleged therein, and an that basis denies each and every allegation contained within the first and second sentences of paragraph 3 of the Petition. Answering the allegations in the third sentence of paragraph 3 of the Petition, the Department affirmatively asserts that on August 22, 2017, it adopted the Proposed Decision (Case No. 2017151334), denying petitioner Ortega’s request for reimbursement of stolen CalFresh benefits in the amounts of $81.13, $32.01, $115.45, and $112.21. The Department further asserts that the Proposed Decision speaks for itself, and 2 Respondents’ Answer to First Amended Petition for Writ of Mandate, etc. (Bg172114) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 therefore the allegations regarding it do not require admission or denial. If a response is required, the Department denies all allegations that differ from the plain language of the Proposed Decision. Except as affirmatively asserted herein, the Department denies each and every remaining allegation contained in paragraph 3 of the Petition. 4. Answering the allegations contained in paragraph 4 of the Petition, the Department lacks sufficient information or belief to enable it to admit or deny the matters alleged therein, and on that basis denies each and every allegation of paragraph 4 of the Petition. 5. Answering the allegations contained in paragraph 5 of the Petition, the Department lacks sufficient information or belief to enable it to admit or deny the matters alleged therein, and on that basis denies each and every allegation of paragraph 5 of the Petition. 6. The Department admits the allegations contained in paragraph 6 of the Petition. 7. The Department admits the allegations contained in paragraph 7 of the Petition. 8. Answering the allegations contained in the first and second sentences of paragraph 8 of the Petition, the Department lacks sufficient information or belief to enable it to admit or deny the matters alleged therein, and on that basis denies the first and second sentences of paragraph 8 of the Petition. The Department denies the allegations contained in the third sentence of paragraph 8 of the Petition. Answering the allegations contained in the fourth sentence of paragraph 8 of the Petition, the Department affirmatively asserts that administrative hearings were held on December 20, 2016 (Case No. 2016273045) and on July 3, 2017 (Case No. 2017151334), which resulted in the adoption of Proposed Decisions on January 17, 2017 (Case No. 2016273045) and on August 22, 2017 (Case No. 2017151334), respectively. In response to the allegations contained in paragraph 8 of the Petition regarding the Proposed Decisions, the Department asserts that the Proposed Decisions speak for themselves, and therefore the allegations regarding them do not require admission or denial. If a response is required, the 3 Respondents’ Answer to First Amended Petition for Writ of Mandate, etc. (BS172114) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Department denies all allegations that differ from the plain language of the Proposed Decisions. Except as affirmatively asserted herein, the Department denies each and every remaining allegation contained in paragraph 8 of the Petition. 9. Answering the allegations contained in paragraph 9 of the Petition, the Department lacks sufficient information or belief to enable it to admit or deny the matters alleged therein, and on that basis denies each and every allegation of paragraph 9 of the Petition. 10. Answering the allegations contained in paragraph 10 of the Petition, the Department lacks sufficient infoiiiiation or belief to enable it to admit or deny the matters alleged therein, and on that basis denies each and every allegation of paragraph 10 of the Petition. 11. Answering the allegations contained in paragraph 11 of the Petition, the Department lacks sufficient information or belief to enable it to admit or deny the matters alleged therein, and on that basis denies each and every allegation of paragraph 11 of the Petition. 12. Answering the allegations contained in paragraph 12 of the Petition, the Department lacks sufficient information or belief to enable it to admit or deny the matters alleged therein, and on that basis denies each and every allegation of paragraph 12 of the Petition. 13. Answering the allegations contained in paragraph 13 of the Petition, the Department lacks sufficient information or belief to enable it to admit or deny the matters alleged therein, and on that basis denies each and every allegation of paragraph 13 of the Petition. 14. Answering the allegations contained in paragraph 14 of the Petition, the Department lacks sufficient information or belief to enable it to admit or deny the matters alleged therein, and on that basis denies each and every allegation of paragraph 14 of the Petition. 15. Answering the allegations contained in paragraph 15 of the Petition, the Department lacks sufficient information or belief to enable it to admit or deny the matters alleged therein, and on that basis denies each and every allegation of paragraph 15 of the Petition. 4 Respondents’ Answer to First Amended Petition for Writ of Mandate, etc. (BS172114) 16. Answering the allegations contained in the first, second, third, and fourth sentences of paragraph 16 of the Petition, the Department lacks sufficient information or belief to enable it to admit or deny the matters alleged therein, and on that basis denies each and every allegation contained in the first, second, third, and fourth sentences of paragraph 16 of the Petition. Answering the allegations contained in the fifth sentence of paragraph 16 of the Petition, the Department affirmatively asserts that petitioner Joe Soza requested an administrative hearing on September 21, 2016, and that an administrative hearing (Case No. 2016273045) was held on December 20, 2016. Except as affirmatively asserted herein, the Department denies each and every remaining allegation contained in the fifth sentence of paragraph 16 of the Petition. 17. Answering the allegations in paragraph 17 of the Petition, to the extent that these allegations purport to paraphrase, interpret, or characterize ACL 13-67 or the November 22, 2016 denial notices, no admission or denial thereof is required because the ACL and denial notices speak for themselves. To the extent an admission or denial is required, the Department denies all allegations that differ from the plain language of ACL 13-67 or the November 22, 2016, denial notices. 18. The Department admits the allegations in paragraph 18 of the Petition. 19. Answering the allegations contained in paragraph 19 of the Petition, the Department affirmatively asserts that an administrative hearing was held on December 20, 2016 (Case No. 2016273045) which resulted in the adoption of a Proposed Decision on January 17, 2017. In response to the allegations contained in paragraph 19 of the Petition regarding the Proposed Decision, the Department asserts that the Proposed Decision speaks for itself, and therefore the allegations regarding it do not require admission or denial. If a response is required, the Department denies all allegations that differ from the plain language of the Proposed 5 Respondents’ Answer to First Amended Petition for Writ of Mandate, etc. (BS172114) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Decision. Except as affirmatively asserted herein, the Department denies each and every remaining allegation contained in paragraph 19 of the Petition. 20. Answering the allegations in paragraph 20 of the Petition regarding the Proposed Decision, the Department asserts that the Proposed Decision speaks for itself, and therefore the allegations regarding it do not require admission or denial. If a response is required, the Department denies all allegations that differ from the plain language of the Proposed Decision. 21. Answering the allegations contained in paragraph 21 of the Petition, the Department lacks sufficient information or belief to enable it to admit or deny the matters alleged therein, and on that basis denies each and every allegation of paragraph 21 of the Petition. 22. Answering the allegations contained in paragraph 22 of the Petition, the Department lacks sufficient information or belief to enable it to admit or deny the matters alleged therein, and on that basis denies each and every allegation of paragraph 22 of the Petition. 23. Answering the allegations contained in paragraph 23 of the Petition, the Department lacks sufficient information or belief to enable it to admit or deny the matters alleged therein, and on that basis denies each and every allegation of paragraph 23 of the Petition. 24. Answering the allegations contained in paragraph 24 of the Petition, the Department lacks sufficient information or belief to enable it to admit or deny the matters alleged therein, and on that basis denies each and every allegation of paragraph 24 of the Petition. 25. Answering the allegations contained in paragraph 25 of the Petition, the Department lacks sufficient information or belief to enable it to admit or deny the matters alleged therein, and on that basis denies each and every allegation of paragraph 25 of the Petition. 26. Answering the allegations contained in paragraph 26 of the Petition, the Department lacks sufficient information or belief to enable it to admit or deny the matters alleged therein, and on that basis denies each and every allegation of paragraph 26 of the Petition. 6 Respondents’ Answer to First Amended Petition for Writ of Mandate, etc. (BS172114) 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27. Answering the allegations contained in paragraph 27 of the Petition, the Department lacks sufficient information or belief to enable it to admit or deny the matters alleged therein, and on that basis denies each and every allegation of paragraph 27 of the Petition. 28. Answering the allegations in paragraph 28 of the Petition, to the extent that these . allegations purport to paraphrase, interpret, or characterize the April 21, 2017 denial notices, no admission or denial thereof is required because the denial notices speak for themselves. To the extent an admission or denial is required, the Department denies all allegations that differ from the plain language of the April 21, 2017, denial notices. 29. Answering the allegations contained in paragraph 29 of the Petition, the Department lacks sufficient information or belief to enable it to admit or deny the matters alleged therein, and on that basis denies each and every allegation of paragraph 29 of the Petition. 30. Answering the allegations contained in paragraph 30 of the Petition, the Department lacks sufficient information or belief to enable it to admit or deny the matters alleged therein, and on that basis denies each and every allegation of paragraph 30 of the Petition. 31. Answering the allegations contained in paragraph 31 of the Petition, the Department lacks sufficient information or belief to enable it to admit or deny the matters alleged therein, and on that basis denies each and every allegation of paragraph 31 of the Petition. 32. Answering the allegations contained in paragraph 32 of the Petition, the Department lacks sufficient information or belief to enable it to admit or deny the matters alleged therein, and on that basis denies each and every allegation of paragraph 32 of the Petition. 33. Answering the allegations contained in paragraph 33 of the Petition, the Department affirmatively asserts that petitioner Esther Ortega requested an administrative hearing on May 24, 2017, and that an administrative hearing (Case No. 2017151334) was held on July 3, 7 Respondents’ Answer to First Amended Petition for Writ of Mandate, etc. (BS172114) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2017. Except as affirmatively asserted herein, the Department denies each and every remaining allegation contained in paragraph 33 of the Petition. 34. Answering the allegations contained in paragraph 34 of the Petition, the Department affilinatively asserts that an administrative hearing was held on July 3, 2017 (Case No. 2017151334) which resulted in the adoption of a Proposed Decision on August 22, 2017. In response to the allegations contained in paragraph 34 of the Petition regarding the Proposed Decision, the Department asserts that the Proposed Decision speaks for itself, and therefore the allegations regarding it do not require admission or denial. If a response is required, the Department denies all allegations that differ from the plain language of the Proposed Decision. Except as affirmatively asserted herein, the Department denies each and every remaining allegation contained in paragraph 34 of the Petition. 35. Answering the allegations in paragraph 35 of the Petition regarding the Proposed Decision, the Department asserts that the Proposed Decision speaks for itself, and therefore the allegations regarding it do not require admission or denial. If a response is required, the Department denies all allegations that differ from the plain language of the Proposed Decision. 36. Answering the allegations contained in the first and second sentences of paragraph 36 of the Petition, the Department admits the allegations contained therein. Answering the allegations contained in the third sentence of paragraph 36 of the Petition, to the extent that these allegations purport to paraphrase, interpret, or characterize 7 U.S.C. 2011, no admission or denial thereof is required because the federal code speaks for itself. To the extent an admission or denial is required, the Department denies all allegations that differ from the plain language of the code. 37. Answering the allegations contained in paragraph 37 of the Petition, to the extent that these allegations purport to paraphrase, interpret, or characterize 7 U.S.C. 2013(c), 7 C.F.R. 8 Respondents’ Answer to First Amended Petition for Writ of Mandate, etc. (BS172114) 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 272.2(a)(2), and\/or 7 C.F.R. 276.1(a)(2), no admission or denial thereof is required because the federal code and regulations speak for themselves. To the extent an admission or denial is required, the Department denies all allegations that differ from the plain language of the code and\/or regulations. 38. Answering the allegations contained in the first sentence of paragraph 38 of the Petition, the Department admits the allegations contained therein. Answering the allegations contained in the second and third sentences of paragraph 38 of the Petition, to the extent that these allegations purport to paraphrase, interpret, or characterize the Department’s Manual of Policies and Procedures (MPP) Division 63 and the case of Gregory v. State Bd. of Control (1999) 73 Cal.App.4th 584, 595, no admission or denial thereof is required because the MPP and case law speak for themselves. To the extent an admission or denial is required, the Department denies all allegations that differ from the plain language of the MMP and\/or case law. 39. Answering the allegations contained in paragraph 39 of the Petition, to the extent that these allegations purport to paraphrase, interpret, or characterize MPP section 63-101.1, no admission or denial thereof is required because the MPP speaks for itself. To the extent an admission or denial is required, the Department denies all allegations contained therein. 40. The Department admits the allegations in paragraph 40 of the Petition. 41. The Department denies the allegations in paragraph 41 of the Petition. 42. Answering the allegations contained in the first sentence of paragraph 42 of the Petition, the Department affirmatively asserts that Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act of August 22, 1996. Except as affirmatively asserted herein, the Department denies each and every remaining allegation contained in the first sentence of paragraph 42 of the Petition. Answering the allegations contained in the second and third sentences of paragraph 42 of the Petition, to the extent that these allegations purport to 9 Respondents’ Answer to First Amended Petition for Writ of Mandate, etc. (BS172114) paraphrase, interpret, or characterize MPP section 16-001.1, no admission or denial thereof is required because the MPP speaks for itself. To the extent an admission or denial is required, the Department denies all allegations that differ from the plain language of the 11\/IMP. 43. Answering the allegations contained in paragraph 43 of the Petition, to the extent that these allegations purport to paraphrase, interpret, or characterize Welfare and Institutions Code sections 10065, et al. and 10553(b), (e), and MPP sections 16-001.2 and 16-001.3, no admission or denial thereof is required because the statutes and MPP speak for themselves. To the extent an admission or denial is required, the Department denies all allegations that differ from the plain language of the statutes or MPP. 44. Answering the allegations contained in the first sentence of paragraph 44 of the Petition, the Department denies the allegations contained therein. Answering the allegations contained in the second and third sentences of paragraph 44 of the Petition, to the extent that these allegations purport to paraphrase, interpret, or characterize MPP section 16-501.1, no admission or denial thereof is required because the MPP speaks for itself. To the extent an admission or denial is required, the Department denies all allegations that differ from the plain language of the MPP. 45. Answering the allegations contained in paragraph 45 of the Petition, to the extent that these allegations purport to paraphrase, interpret, or characterize Welfare and Institutions Code section 10065(b), no admission or denial thereof is required because the statute speaks for itself. To the extent an admission or denial is required, the Department denies all allegations that differ from the plain language of the statute. 46. Answering the allegations contained in paragraph 46 of the Petition, to the extent that these allegations purport to paraphrase, interpret, or characterize 7 C.F.R. section 271.2, no admission or denial thereof is required because the federal regulation speaks for itself. To the 10 Respondents’ Answer to First Amended Petition for Writ of Mandate, etc. (BS172114) 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 extent an admission or denial is required, the Department denies all allegations that differ from the plain language of the federal regulation. 47. Answering the allegations contained in paragraph 47 of the Petition, to the extent that these allegations purport to paraphrase, interpret, or characterize MPP section 63-102(a)(1), no admission or denial thereof is required because the MPP speaks for itself. To the extent an admission or denial is required, the Department denies all allegations that differ from the plain language of the MPP. 48. Answering the allegations contained in paragraph 48 of the Petition, to the extent that these allegations purport to paraphrase, interpret, or characterize 7 C.F.R. section 274.8(b)(9), no admission or denial thereof is required because the federal regulation speaks for itself. To the extent an admission or denial is required, the Department denies all allegations that differ from the plain language of the federal regulation. 49. The Department denies the allegations in paragraph 49 of the Petition 50. Answering the allegations contained in paragraph 50 of the Petition, to the extent that these allegations purport to paraphrase, interpret, or characterize MPP section 63-603.1 and\/or Government Code section 29853.5, no admission or denial thereof is required because the MPP and statute speak for themselves. To the extent an admission or denial is required, the Department denies all allegations that differ from the plain language of the MPP and\/or statute. 51. Answering the allegations contained in paragraph 51 of the Petition, to the extent that these allegations purport to paraphrase, interpret, or characterize MPP section 63-603.12, no admission or denial thereof is required because the MPP speaks for itself. To the extent an admission or denial is required, the Department denies all allegations that differ from the plain language of the MPP. 11 Respondents’ Answer to First Amended Petition for Writ of Mandate, etc. (BS172114) 52. Answering the allegations contained in paragraph 52 of the Petition, to the extent that these allegations purport to paraphrase, interpret, or characterize MPP section 63-603.15, no admission or denial thereof is required because the MPP speaks for itself. To the extent an admission or denial is required, the Department denies all allegations that differ from the plain language of the MPP. 53. Answering the allegations contained in paragraph 53 of the Petition, to the extent that these allegations purport to paraphrase, interpret, or characterize MPP. section 63-603.2, no admission or denial thereof is required because the MPP speaks for itself. To the extent an admission or denial is required, the Department denies all allegations that differ from the plain language of the MPP. 54. Answering the allegations contained in paragraph 54 of the Petition, to the extent that these allegations purport to paraphrase, interpret, or characterize 7 C.F.R. section 276.2(b)(7), no admission or denial thereof is required because the federal regulation speaks for itself. To the extent an admission or denial is required, the Department denies all allegations contained therein. 55. Answering the allegations contained in paragraph 55 of the Petition, to the extent that these allegations purport to paraphrase, interpret, or characterize Welfare and Institutions Code section 15125,110 admission or denial thereof is required because the statute speaks for itself. To the extent an admission or denial is required, the Department denies all allegations contained therein. 56. The Department denies the allegations contained in paragraph 56 of the Petition. 57. Answering the allegations contained in paragraph 57 of the Petition, to the extent that these allegations purport to paraphrase, interpret, or characterize Welfare and Institutions Code section 10500, 7 U.S.C. section 2016(h), 7 C.F.R. sections 274.8(a)(1)(ix) and (b)(3), and Government Code section 29853.5, no admission or denial thereof is required because the 12 Respondents’ Answer to First Amended Petition for Writ of Mandate, etc. (BS172114) statutes, federal codes, and federal regulations speak for themselves. To the extent an admission or denial is required, the Department denies all allegations contained therein. 58. The Department denies the allegations contained in paragraph 58 of the Petition. 59. Answering the allegations contained in paragraph 59 of the Petition, to the extent that these allegations purport to paraphrase, interpret, or characterize Welfare and Institutions Code section 10072(i)(1), no admission or denial thereof is required because the statute speaks for itself. To the extent an admission or denial is required, the Department denies all allegations contained therein. 60. The Department admits the allegations contained in paragraph 60 of the Petition. 61. Answering the allegations contained in paragraph 61 of the Petition, to the extent that these allegations purport to paraphrase, interpret, or characterize All County Information Notice (ACIN) No. 1-25-031, dated April 16, 2003, no admission or denial thereof is required because the ACIN speaks for itself. To the extent an admission or denial is required, the Department denies all allegations that differ from the plain language of the ACIN. 62. The Department denies the allegations contained in paragraph 62 of the Petition. 63. Answering the allegations contained in paragraph 63 of the Petition, to the extent that these allegations purport to paraphrase, interpret, or characterize 2012 Assembly Bill (AB) 2035, no admission or denial thereof is required because the bill speaks for itself. To the extent an admission or denial is required, the Department denies all allegations that differ from the plain language of AB 2035. 64. Answering the allegations contained in paragraph 64 of the Petition, to the extent that these allegations purport to paraphrase, interpret, or characterize AB 2035 and Welfare and Institutions Code section 10072(i)(2)-(3), no admission or denial thereof is required because the 1 The Petition mistakenly refers to ACIN No. 1-25-02. 13 Respondents’ Answer to First Amended Petition for Writ of Mandate, etc. (BS172114) bill and statute speak for themselves. To the extent an admission or denial is required, the Department denies all allegations that differ from the plain language of AB 2035 and the statute. 65. The Department denies the allegations contained in paragraph 65 of the Petition. 66. The Department denies the allegations contained in paragraph 66 of the Petition. 67. Answering the allegations in paragraph 67 of the Petition, to the extent that these allegations purport to paraphrase, interpret, or characterize ACL 13-67, no admission or denial thereof is required because the ACL speaks for itself. To the extent an admission or denial is required, the Department denies all allegations that differ from the plain language of ACL 13-67. 68. The Department denies the allegations contained in paragraph 68 of the Petition. 69. The Department admits the allegations contained in paragraph 69 of the Petition. 70. Answering the allegations in paragraph 70 of the Petition, to the extent that these allegations purport to paraphrase, interpret, or characterize Welfare and Institutions Code section 10962 and Code of Civil Procedure section 1094.5, no admission or denial thereof is required because the statutes speak for themselves. To the extent an admission or denial is required, the Department denies all allegations that differ from the plain language of the statutes. 71. In response to paragraph 71 of the Petition, the Department asserts that there are no allegations contained therein that require admission or denial, and on that basis denies each and every purported allegation contained therein. To the extent that it can be construed that paragraph 71 of the Petition contains proper allegations, the Department denies each and every purported allegation that differs from the plain language of the statute. 72. Answering the allegations in paragraph 72 of the Petition, to the extent that these allegations purport to paraphrase, interpret, or characterize Welfare and Institutions Code section 10600, no admission or denial thereof is required because the statute speaks for itself. To the 14 Respondents’ Answer to First Amended Petition for Writ of Mandate, etc. (BS172114) extent an admission or denial is required, the Department denies all allegations that differ from the plain language of the statute. 73. The Department denies the allegations contained in paragraph 73 of the Petition. 74. The Department admits the allegations contained in paragraph 74 of the Petition. 75. The Department denies the allegations contained in paragraph 75 of the Petition. 76. The Department denies the allegations contained in paragraph 76 of the Petition. 77. The Department denies the allegations contained in paragraph 77 of the Petition. 78. Answering the allegations in paragraph 78 of the Petition, to the extent that these allegations purport to paraphrase, interpret, or characterize Code of Civil Procedure sections 1085 and 1094.5 or 42 U.S.C. 1983, no admission or denial thereof is required because the statutes and federal code speak for themselves. To the extent an admission or denial is required, the Department denies all allegations that differ from the plain language of the statutes or federal code and specifically denies that it has violated any state or federal laws. 79. The Department admits the allegations contained in paragraph 79 of the Petition. 80. The Department denies the allegations contained in paragraph 80 of the Petition. 81. In response to paragraph 81 of the Petition, the Department asserts that there are no allegations contained therein that require admission or denial, and on that basis denies each and every purported allegation contained therein. To the extent that it can be construed that paragraph 81 of the Petition contains proper allegations, the Department incorporates by reference each and every response in this Answer as though fully set forth herein. 82. The Department denies the allegations contained in paragraph 82 of the Petition. 83. The Department denies the allegations contained in paragraph 83 of the Petition. 84. The Department denies the allegations contained in paragraph 84 of the Petition. 85. The Department denies the allegations contained in paragraph 85 of the Petition. 15 Respondents’ Answer to First Amended Petition for Writ of Mandate, etc. (BS172114) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 86. In response to paragraph 86 of the Petition, the Department asserts that there are no allegations contained therein that require admission or denial, and on that basis denies each and every purported allegation contained therein. To the extent that it can be construed that paragraph 86 of the Petition contains proper allegations, the Department incorporates by reference each and every response in this Answer as though fully set forth herein. 87. The Department denies the allegations contained in paragraph 87 of the Petition. 88. The Department denies the allegations contained in paragraph 88 of the Petition. 89. The Department denies the allegations contained in paragraph 89 of the Petition. 90. In response to paragraph 90 of the Petition, the Department asserts that there are no allegations contained therein that require admission or denial, and on that basis denies each and every purported allegation contained therein. To the extent that it can be construed that paragraph 90 of the Petition contains proper allegations, the Department incorporates by reference each and every response in this Answer as though fully set forth herein. 91. The Department denies the allegations contained in paragraph 91 of the Petition. 92. The Department lacks sufficient information or belief to enable it to admit or deny the matters alleged in paragraph 92 of the Petition, and on that basis denies each and every allegation contained therein. 93. The Department denies the allegations contained in paragraph 93 of the Petition. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Because the Petition is couched in conclusionary terms, the Department cannot anticipate fully all affirmative defenses that may be applicable to this matter. Accordingly, the Department hereby reserves the right to assert additional affirmative defenses, if and to the extent such affirmative defenses are applicable. 16 Respondents’ Answer to First Amended Petition for Writ of Mandate, etc. (B5172114) SECOND AFFIRMATIVE DEFENSE The Department asserts that petitioners have failed to allege facts sufficient to form the basis for the court’s issuance of a writ of administrative mandamus pursuant to Code of Civil Procedure section 1094.5 against the Department. THIRD AFFIRMATIVE DEFENSE The Department asserts that petitioners have failed to allege facts sufficient to form the basis for the court’s issuance of a writ of mandate pursuant to Code of Civil Procedure section 1085 against the Department. FOURTH AFFIRMATIVE DEFENSE Petitioners received all due process required under the law. FIFTH AFFIRMATIVE DEFENSE At all times relevant herein, the Department acted within the scope of its jurisdiction and discretion, with due care, in good faith fulfillment of its responsibility pursuant to applicable statutes, rules, regulations, and practices, within the bounds of reason under all the circumstances known to it, and with the good faith belief that its actions comported with all applicable federal and state laws. SIXTH AFFIRMATIVE DEFENSE Petitioners lacks standing to assert the purported claims alleged in the second and third causes of action. WHEREFORE, respondents pray as follows: a. That the Petition be denied; b. That petitioners take nothing by way of their Petition and that judgment thereon be entered in favor of respondents; c. That respondents be awarded their costs of suit herein; 17 Respondents’ Answer to First Amended Petition for Writ of Mandate, etc. (BS172114) d. That this Court issue a statement of decision pursuant to Code of Civil Procedure section 632; and e. For such other and further relief as the Court deems just and proper. Dated: August 2018 LA2018600945 62909851.docx Respectfully submitted, IER BECERRA ey General of California RD T. WALDOW g Deputy Attorney General GREGORY M. CRIBBS Deputy Attorney General Attorneys for Respondents California Department of Social Services and Will Lightbourne, in his official capacity as Director, California Department of Social Services 18 Respondents’ Answer to First Amended Petition for Writ of Mandate, etc. (BS172114) DECLARATION OF SERVICE BY U.S. MAIL Case Name: Javier Porras v. Will Lightbourne, California Department of Social Services, et al. Case No.: BS1722114 I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member’s direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United ‘ . Stat7eS Postal Serice. In accordance with that practice, correspondence placed in the internal ,Mail collection system at the Office of the Attorney General is deposited with the United States ‘Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On August 14, 2018, I served the attached RESPONDENTS’ ANSWER TO FIRST AMENDED PETITION FOR WRIT OF AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (Code Civ. Proc. Sections 1085 And 1094.5; Welf. & Inst. Code Section 10962) by placing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 300 South Spring Street, Suite 1702, Los Angeles, CA 90013, addressed as follows: Mr. Alexander Prieto Mr. Andrew Kazakes Mr. Richard Rothschld Mr. Tyler Sutherland WESTERN CENTER OF LAW AND Ms. Yolanda Arias POVERTY LEGAL AID FOUNDATION OF LOS 3701 Wilshire Boulevard, Suite 208 ANGELES Los Angeles, California 90010 5228 Whittier Boulevard Los Angeles, California 90022 I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on August 14, 2018, at Los Angeles, California. Veronica Sawers VX\/4\/4,_ Declarant signature LA2018600945 62919298.docx IL. ,I ”

pdf Soza v. Lightbourne – Complaint for Writ of Mandate, Declaratory and Injunctive – Replacing Stolen Food Stamps Relief

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Soza v. Lightbourne – Complaint for Writ of Mandate, Declaratory and Injunctive – Replacing Stolen Food Stamps Relief.pdf

” 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Andrew Kazakes, SBN 277912 Tyler Sutherland, SBN 287337 Yolanda Arias, SBN 130025 LEGAL AID FOUNDATION OF LOS ANGELES 5228 Whittier Boulevard Los Angeles, CA 90022 Telephone: (213) 640-3944 Facsimile: (213) 640-3911 Email: [email protected] [email protected] [email protected] Alexander Prieto, SBN 270864 Richard A. Rothschild, SBN 67356 WESTERN CENTER ON LAW & POVERTY 3701 Wilshire Boulevard, Suite 208 Los Angeles, CA 90010 Telephone: Facsimile: Email: (213) 235-2614 (213) 487-0242 [email protected] [email protected] Attorneys for JOE SOZA and ESTHER ORTEGA No allicAjzF j5 ttlEd4 per WA` TE* rgia)for a Code 10962 -2′ MAR 2 7 2018 Sherri H. framer, executive Officer\/Clerk By Michael Rivera, Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES JOE SOZA; ESTHER ORTEGA Petitioners, v. ) Case No.: BS 172114 ) FIRST AMENDED PETITION ) FOR WRIT OF MANDATE ) AND COMPLAINT FOR ) DECLARATORY AND INJUNCTIVE WILL LIGHTBOURNE, in his official capacity as ) RELIEF Director, California Department of Social Services; ) and the CALIFORNIA ) [Code of Civ. Proc. 1094.5, 1085; DEPARTMENT OF SOCIAL SERVICES ) Welf. & Inst. Code 10962] Respondents. ) Dept.: 86 ) Judge: Hon. Amy D. Hogue ) Action filed: Jan. 22, 2018 ) Answer: Not filed FIRST AMENDED PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 INTRODUCTION 1 Petitioners JOE SOZA and ESTHER ORTEGA bring this action to challenge the Respondents’, WILL LIGHTBOURNE and the CALIFORNIA DEPARTMENT OF SOCIAL SERVICES’ (CDSS), decisions upholding the denial of the restoration of their electronically stolen CalFresh benefits. 2. Petitioner Joe Soza was a CalFresh and General Relief (GR) recipient at the time of the allegations contained herein and accessed his food and cash benefits through an Electronic Benefits Transfer (EBT) card. In early September 2016, while under curfew at a sober living facility, Mr. Soza was the victim of electronic benefits theft, losing nearly all of his monthly food and cash benefits through a series of early morning, unauthorized transactions despite retaining sole possession of his physical EBT card. After promptly reporting the theft to the EBT helpline and filing a police report, his cash benefits were restored but his request for restored CalFresh benefits was denied. 3. Petitioner ESTHER ORTEGA is and was a CalFresh and CalWORKs recipient at the time of the allegations contained herein and accessed her food and cash benefits through an EBT card. In early April 2017, Ms. Ortega was the victim of electronic benefits theft, losing nearly all of her monthly food and cash benefits through a series of early morning, unauthorized transactions despite retaining sole possession of her physical EBT card. After promptly reporting the theft to the EBT helpline and filing a police report, her cash benefits were restored but her request for restored CalFresh benefits was denied. PARTIES 4. Petitioner JOE SOZA was a CalFresh recipient whose request for restoration of electronically stolen food benefits was denied by Respondents, and has exhausted his 2 FIRST AMENDED PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 administrative remedies in seeking reversal of this erroneous denial. Mr. SOZA resided in Los Angeles County at all times relevant to these proceedings. Mr. Soza subsequently relocated to Arizona. 5. Petitioner ESTHER ORTEGA is and was a CalFresh recipient whose request for restoration of electronically stolen food benefits was denied by Respondents, and has exhausted her administrative remedies in seeking reversal of this erroneous denial. Ms. ORTEGA resided in Los Angeles County at all times relevant to these proceedings. 6. The Respondent, WILL LIGHTBOURNE, is the Director of the California Department of Social Services. As Director, he is charged under Welfare and Institutions Code Section 10553 with administering the CalFresh program. His duties with respect to the CalFresh program are partially set out in Welfare and Institutions Code Section 18900, et seq. The Respondents must comply with both state and federal law. The Respondent WILL LIGHTBOURNE is sued in his official capacity. 7. The Respondent, CALIFORNIA DEPARTMENT OF SOCIAL SERVICES (CDSS), is the single state agency responsible for supervising the administration of public social services in California, including the CalFresh program, in order to secure full compliance with applicable state and federal laws. Welf. & Inst. Code 10600. For Los Angeles County, the Respondents delegated responsibility for administration of the CalFresh program to the Los Angeles County Department of Public Social Services (DPSS). At all relevant times, DPSS was and is the agent of the Respondents. FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY 8. Petitioners JOE SOZA and ESTHER ORTEGA have each been the victims of electronic benefit \”skimming\” theft by which their EBT account numbers and PIN codes were 3 FIRST AMENDED PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 illegally obtained and used to steal Petitioners’ cash and food benefits through unauthorized EBT transactions, despite the fact that Petitioners maintained possession of their EBT cards and account information at all times. Both Petitioners timely reported the thefts to the EBT helpline and filed police reports. In both cases, Petitioners’ cash benefits were promptly restored, but Respondents refused to restore any CalFresh benefits, in contravention of California and federal regulations. Petitioners requested state fair hearings, and in both cases Respondents\u2014although it was undisputed that Petitioners were victims of theft\u2014upheld the denials of Petitioners’ requests for restoration of their electronically stolen CalFresh benefits. Petitioner Joe Soza 9. Petitioner JOE SOZA resided at Action Sober Living Homes, 5149 Cavanagh Road, Los Angeles, CA 90032 at the time of the allegations contained herein. Since June 2016, Mr. Soza received CalFresh and GR benefits through the Los Angeles County Department of Public Social Services (DPSS). He accessed both his food and cash benefits through an EBT card. 10. On September 3, 2016 at approximately 1:33 AM, Mr. Soza’s GR and CalFresh accounts were credited with his monthly benefit allotments, $221.00 for GR and $194 for CalFresh. 1 1. Within a few hours, there were four unauthorized transactions using Mr. Soza’s benefits. At 4:12 AM in a Rite Aid Store located at 21949 Ventura Blvd. in Woodland Hills, there was a $17.19 transaction from Mr. Soza’s CalFresh account. One minute later, at the same location, there was a cash purchase made, with cash back, from Mr. Soza’s GR account totaling $129.25. Two hours later, at 6:23 AM in the same Rite Aid, another cash purchase with cash back from Mr. Soza’s GR account occurred in the amount of $47.95. A little more than an hour after that, at 7:39 AM at the same Rite Aid, there was yet another cash purchase with cash back made 4 FIRST AMENDED PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 from Mr. Soza’s GR account in the amount of $41.41. These cash purchases consumed $218.61 of Mr. Soza’s $221 GR benefits for September. 12. Over the subsequent two days, there were three additional unauthorized transactions from Mr. Soza’s CalFresh account, all of them again from the same Rite Aid store in Woodland Hills. These included: a $61.66 food purchase on September 4 at 2:45 AM, a $10.31 food purchase on September 5 at 2:23 AM, and a $76.22 food purchase on September 5 at 4:15 PM. In total, Mr. Soza had $165.38 stolen from his CalFresh account. All of these unauthorized transactions were performed by \”keying\” the account number and PIN code at the point of sale device without swiping a physical card. 13. Mr. Soza was the victim of electronic benefits theft. At all times he remained in possession of his EBT card and never distributed his account number or PIN code to anyone. Mr. Soza lived by himself at Action Sober Living Homes. 14. Action Sober Living Homes is a structured sober living home with mandatory curfews. Mr. Soza was required to be at home between 10:00 PM and 5:30 AM Sunday through Thursday, and 12:00 AM to 5:30 AM Friday and Saturday. Mr. Soza remained in full compliance during his entire time at Action Sober Living Homes, as confirmed in writing by Program Director Robert Anderson. Mr. Soza has never been to Woodland Hills, nor to the Woodland Hills Rite Aid store where the unauthorized transactions occurred. 15. On information and belief, Mr. Soza was the victim of \”skimming\” fraud, a technique by which a thief surreptitiously acquires a victim’s EBT or debit card account number and PIN code information. This is often accomplished by installing a false casing onto a point of sale card reader to intercept account information, often in conjunction with a discreet camera that visually records victims keying their PIN codes. The electronic thief then uses this information to 5 FIRST AMENDED PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 misappropriate the victim’s benefits by either creating and using a \”cloned\” physical EBT or debit card, or by conducting \”keyed\” transactions at point-of-sale devices in the complete absence of a physical card. With advances in technology, this foiin of fraud has become increasingly common. 16. Mr. Soza realized that his benefits had been stolen within days of the theft when he tried to withdraw cash and was unexpectedly notified that there were no funds available in his account. On or about September 5 or 6, Mr. Soza immediately tried to report the theft at a local DPSS office located downtown near an outpatient program that he attended, but he was told to go to the Wilshire office instead to follow up about the issue. Around the same time, he called the EBT customer service helpline to report the theft, but was told to go file a police report and go to the Wilshire office, instead of being allowed to file a dispute claim on the spot. After several trips between the police department and the Wilshire office, Mr. Soza obtained assistance from the Legal Aid Foundation of Los Angeles, which assisted Mr. Soza with reporting the theft to DPSS and filing a police report on September 15. On September 21, a request for hearing regarding Mr. Soza’s stolen CalFresh was submitted to DPSS along with a report of electronic theft. Mr. Soza’s case was assigned administrative hearing number 2016273045. 17. Based on the theft reported in the case complaint, Mr. Soza’s cash aid was promptly restored. However, Respondents refused to restore Mr. Soza’s CalFresh benefits, even though they were stored on the same electronic account and were stolen as part of the same series of unauthorized transactions between September 3 and 5, 2016. While the first hearing date was pending in this matter, counsel for Mr. Soza was notified that according to ACL 13-67, Mr. Soza was required to initiate a separate dispute claim through the EBT customer helpline with respect to his CalFresh benefits, even though he had previously reported the theft and had already called the EBT customer helpline. Nonetheless, Counsel for Mr. Soza requested a postponement in order to 6 FIRST AMENDED PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 exhaust this additional administrative process, and assisted Mr. Soza in submitting these four dispute claims. On November 22, 2016, Mr. Soza received three denial notices with respect to these four dispute claims, with one of the four claims erroneously omitted. The basis for the denials was that no system error had occurred. 18. Mr. Soza attended the December 20, 2016 hearing and provided sworn testimony. 19. On January 17, 2017, Administrative Law Judge Eli Palomares issued a decision that was adopted by the Respondents. The decision accepted the undisputed evidence that Mr. Soza was the victim of electronic benefits theft, but upheld the Respondents’ denial of the reimbursement for Mr. Soza’s electronically stolen CalFresh benefits. 20. The decision is based on the conclusions, challenged in this Petition, that: (1) Manual of Policies and Procedures Section 63-603.115(c) does not provide for the restoration of electronically stolen CalFresh benefits; and (2) Welfare & Institutions Code 10072, as amended in 2012 by A.B. 2035, should be interpreted as expressly excluding restoration of electronically stolen CalFresh benefits, contrary to the stated intent of this legislation to expand\u2014not narrow\u2014 crime victims’ access to restored subsistence welfare benefits in instances of such theft. 21. Judge Palomares’ written decision was received on January 20, 2017. Petitioner Esther Ortega 22. Petitioner ESTHER ORTEGA resides and resided in Whittier California at the time of the allegations contained herein. Ms. Ortega is a victim of domestic violence, and has been a recipient of Cal WORKs and CalFresh benefits on and off over the last seventeen years through DPSS. Ms. Ortega does not drive. She accesses and accessed both food and cash benefits through an EBT card. 7 FIRST AMENDED PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 23. On April 2, 2017, at approximately 12:58 AM and 1:23 AM, Ms. Ortega’s CalFresh benefits and CalWORKs benefits were deposited with her monthly allotments, $625 and $577, respectively. 24. At 9:08 PM on April 2, 2017 $280 in CalWORKs benefits was stolen from Ms. Ortega’s account at an ATM at 7568 Lankershim Blvd., North Hollywood and on April 3, 2017 at 12:25 PM another $60 in cash benefits was stolen at an ATM located at 6015 Franklin Ave, Los Angeles. 25. On April 9, 2017 there were four unauthorized transactions on Ms. Ortega’s EBT account. $81.13 in CalFresh benefits was stolen at 9:35 AM at a CVS store located at 861 North Vine Street, Hollywood, CA 90038. $115.45 in CalFresh benefits was stolen at 9:04 AM at a Ralphs Grocery Store located at 7257 Sunset Blvd., West Hollywood, CA 90046. $32.01 in CalFresh benefits was stolen at 9:09 AM at Ralphs Grocery Store located at 7257 Sunset Blvd., West Hollywood, CA 90046. Finally, $112.21 in CalFresh benefits was stolen at 9:39 AM at a Ralphs Grocery Store located at 1233 N. La Brea, West Hollywood, CA 90046. 26. On April 11, 2017 Ms. Ortega went to use her benefits and discovered the discrepancy in her balance, and called the EBT customer service helpline to report these thefts. She reported the six unauthorized transactions (two CalWORKs and four CalFresh) and cancelled her EBT Card. 27. On April 12, 2017 Ms. Ortega reported the thefts to DPSS and received a replacement EBT card. 28. DPSS issued three Denial Notices dated April 21, 2017 denying Ms. Ortega’s request for replacement of the funds withdrawn from her EBT CalFresh account on April 9, 2017. 8 FIRST AMENDED PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 The theft of $81.13 was erroneously omitted. The basis for the denials was that no system error had occurred. 29. On April 25, 2017 Ms. Ortega filed a police report. 30. Ms. Ortega was the victim of electronic benefits theft. At all times she remained in possession of her EBT card and never distributed her account number or PIN code to anyone. Ms. Ortega does not drive, and the unauthorized transactions all took place over twenty miles from her home. 31. On information and belief, Ms. Ortega was the victim of electronic benefit \”skimming\” fraud. 32. DPSS reimbursed Ms. Ortega for the stolen CalWORKs cash benefits. 33. On May 24, 2017 Ms. Ortega submitted a request for hearing to challenge DPSS’s denial of her request for CalFresh reimbursement. An administrative hearing was held on July 3, 2017, where Ms. Ortega’s sworn affidavit was submitted as evidence. 34. On August 22, 2017, Administrative Law Judge Jonathan Huang issued a decision that was adopted by the Respondents. The decision upheld the Respondents’ denial of the reimbursement of Ms. Ortega’s electronically stolen CalFresh benefits. 35. The decision is based on the conclusions, challenged in this Petition, that: (1) Manual of Policies and Procedures Section 63-603.115(c) does not provide for the restoration of electronically stolen CalFresh benefits; and (2) Welfare & Institutions Code 10072, as amended in 2012 by A.B. 2035, should be interpreted as expressly excluding restoration of electronically stolen CalFresh benefits, contrary to the stated intent of this legislation to expand\u2014not narrow\u2014 crime victims’ access to restored subsistence welfare benefits in instances of such theft. 9 FIRST AMENDED PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 STATUTORY AND REGULATORY FRAMEWORK CalFresh Benefits Program 36. CalFresh is a California state benefits program that provides monthly benefits to low-income households for purchasing food to maintain adequate nutritional levels. It was formerly known as the Food Stamp program, and is part of the federally authorized Supplemental Nutrition Assistance Program (SNAP). Congress has declared that the primary purpose of the SNAP program is to safeguard the health and well-being of the Nation’s population by reducing hunger and malnutrition among the Nation’s low-income households. 7 U.S.C. 2011. 37. Federal law requires that state agencies participating in the SNAP program comply with all SNAP statutes, regulations, and rules. 7 U.S.C. 2013(c); 7 C.F.R. 272.2(a)(2); 7 C.F.R. 276.1(a)(2). 38. In California, the CalFresh benefits program is governed by Welfare & Institutions Code Section 18900 et seq. CDSS administers the CalFresh program under the regulations contained in Manual of Policies and Procedures (MPP) Division 63. Respondents have a ministerial duty to comply with their own rules and regulations. Gregory v. State Bd. of Control, 73 Cal. App. 4th 584, 595 (1999). 39. Under the MPP, Respondents are responsible for the administration, distribution, management, and facilitation of the CalFresh benefits program. Respondents have the duty to \”promote the general welfare and to safeguard the health and well-being of the nation’s population\” in its administration of the CalFresh program. MPP 63-101.1. The EBT System 40. Since the passage of the Food Stamp Act in 1964, Respondents have implemented a variety of methods for the delivery of food benefits to participants. These benefits were originally 10 FIRST AMENDED PETITION FOR WRIT OF MANDATE 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 issued in the form of physical coupons, or \”stamps,\” which were then redeemed at authorized points of sale in exchange for food. 41. An \”authorization document\” system was also developed by which a participant was mailed a physical voucher each month that was then redeemed at designated locations in exchange for the participant’s allotted quantity of coupons. 42. In 1996 Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act of August 22, 1996, which mandated that States implement EBT systems to modernize the delivery of food benefits. Under the EBT system, benefits are stored in a central computer database. MPP 16-001.1. Recipients access their electronically stored benefits at point-of-sale terminals, ATMs (for cash benefits), and other electronic funds transfer devices. Id. 43. In California, the EBT system is governed by the California Electronic Benefits Transfer Act, Welfare and Institutions Code 10065 et seq. (the \”EBT Act\”). Under Welfare and Institutions Code 10077, Respondents have the authority to adopt regulations to implement the EBT Act. Respondents also have the authority to adopt regulations and general policies \”necessary for the administration of public social services.\” WIC 10553(b), (e). Regulations issued by Respondents require counties to use the EBT system to deliver benefits under the CalFresh program and the California Food Assistance Program (CFAP). MPP 16-001.2. Counties may also use the EBT system to distribute cash benefits under other programs, such as the CalWORICs program and the GR program. MPP 16-001.3. 44. Under the EBT system, counties automatically load benefits onto recipients’ electronic EBT accounts at designated times each month. County welfare departments are responsible for issuing EBT cards and personal identification numbers (\”PINs\”), which recipients use to access the benefits stored electronically in their EBT accounts. MPP 16-501.1. Recipients 1 1 FIRST AMENDED PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 can access their electronic accounts at a point-of-sale terminal either by swiping a physical EBT card (\”swiping\”) or by keying in the account number and PIN code manually (\”keying\”).’ 45. One of the primary purposes of the EBT system, as stated in the EBT Act, is \”to afford public social services recipients the opportunity to better and more securely manage their financial affairs.\” WIC 10065(b). Accordingly, the CalFresh program has discontinued the usage of \”coupons\”2 and \”authorization documents\”3 and has transitioned to distributing benefits electronically through an \”access device\” system, a change in terminology that has been incorporated into both state and federal regulations. 46. A physical EBT card with a magnetic strip is a type of \”access device,\” but the term broadly includes all technical means of accessing food benefits, including the use of an account number and PIN code to access food benefits without swiping a physical card. According to the Code of Federal Regulations, the term \”access device\” is defined in broad, functional terms, and specifically includes the use of an account number and code to access benefits separate and apart from a physical card: Access device means any card, plate, code, account number, or other means of access that can be used alone, or in conjunction with another access device, to obtain payments, allotments, benefits, money, goods, or other ‘ Retailers who conduct EBT transactions are required to have the capacity to conduct manual \”key entered transactions,\” in which the account number and PIN code are typed into the point-of-sale device in lieu of swiping a physical card. 7 CFR 274.8(b)(9)(\”Minimum transaction set. At a minimum, the State agency shall ensure that the EBT system, including third party processors and retailers driving their own terminals, is capable of … key entered transactions ….\”)(second emphasis added); see also The Supplemental Nutrition Assistance Program Training Guide for Retailers, Pg. 13, available at https:\/\/www.fns.usda.gov\/snap\/retailers-store-training-information (providing that if an EBT card cannot be read by a POS machine, \”SNAP regulations permit key entry as a back-up convenience for recipients . The MPP retains a legacy definition of the term \”coupon\” as \”a type of certificate provided pursuant to the provisions of Division 63, Food Stamp Regulations, for the purchase of eligible foods.\” MPP 63- 102(c)( 14). 3 The MPP likewise retains a definition of the term \”authorization document\” as \”an intermediary document issued by the CWD and used to authorize a specific benefit amount for a household. An ‘Authorization to Participate card (ATP)’ is a type of authorization document.\” MPP 63-102(a)(8). 12 FIRST AMENDED PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 things of value, or that can be used to initiate a transfer of funds under the Food and Nutrition Act of 2008, as amended.\” 7 C.F.R. 271.2 (emphases added). 47. The MPP, which contains California’s regulations governing state welfare programs, defines the term \”access device\” in similarly broad terms and specifically refers to the physical EBT card as only a particular type or example of the broader \”access device\” category: \”Access device\” means the device which may be used to access the master issuance or record-for-issuance file in an automated direct access system. A plastic card with a magnetic strip is a type of access device. M.P.P. 63- 102(a)(1) (emphases added).4 48. Both the controlling federal definition and subordinate MPP definition of the term \”access device\” make clear that the term is not limited to a physical EBT card, but instead includes whatever technological means exist or are developed to access benefits. Federal regulations also require that state EBT systems possess the capacity for \”key entered\” transactions through which benefits are accessed with only an account number and PIN code without utilization of a physical card. 7 C.F.R. 274.8(b)(9). The term \”access device\” includes the EBT account number and PIN code\u2014independent of a physical EBT card\u2014because states are required to ensure technical capacity for such cardless, key-entered transactions at point-of-sale terminals. Replacement Issuances for Stolen CalFresh Benefits 49. No state or federal statute or regulation exists that prohibits the restoration of electronically stolen CalFresh benefits. 4 The \”master issuance file\” is the state’s entire database of current CalFresh beneficiary households and benefit allotments, while the \”record-for-issuance file\” is the file created monthly from the master issuance file which shows each individual household’s monthly benefit entitlement and the amount actually issued to the household. MPP 63-102(m)(3), (r)(4). 13 FIRST AMENDED PETITION FOR WRIT OF MANDATE 1 2 3 4 5 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 50. Instead, California regulations contained in the MPP affirmatively provide for replacement CalFresh issuances, including mandatory replacement of CalFresh benefits when a beneficiary is the victim of benefits theft: 63-603 REPLACEMENT ISSUANCES .1 Providing Replacement Issuances CWDs shall provide replacement issuances to households. .11 Allowable Replacements CWDs shall provide a replacement issuance or authorization, as appropriate, as a result of an agency issuance error or when a household reports any of the following occurrences. .115 In an automated direct access issuance system using an access device, the initial access device was: (a) Not received in the mail; (b) Stolen from the mail; or (c) Stolen after receipt. MPP 63-603.1 (emphases added); see also Cal. Gov’t Code 29853.5. 51. The MPP also specifies six circumstances in which replacement CalFresh issuances are disallowed, none of which apply to cases where an access device is stolen. MPP 63-603.12. 52. The MPP also contains specific reporting responsibilities as a prerequisite to receiving a CalFresh replacement issuance in cases where an access device is stolen after receipt: .15 Household Reporting Responsibilities The following allowable replacement issuances or authorizations shall be provided only if a household timely reports a loss or in writing provides a DFA 303 as specified in Section 63-603.3. In the following systems replacement requests shall be considered timely: 14 FIRST AMENDED PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 .154 Direct Access Issuance System (b) Replacement requests made to the CWD within 10 days of the loss when the access device is reported as stolen after receipt. MPP 63-603.15 (emphasis added). 53. Finally, the MPP contains a limitation on the number of replacement issuances within a six-month period. This section expressly contemplates CalFresh replacement issuances in instances where an access device is stolen after receipt: .2 Replacement Limitations The number of countable replacements provided to a household within a six-month period shall be limited as follows: .211 Two countable replacement issuances or authorizations caused by any combination of the following occurrences: (c) In an automated direct access issuance system, a replacement authorization made because the access device was not received in the mail or was stolen from the mail or after receipt. MPP 63-603.2 (emphases added). 54. The provisions of the MPP providing for replacement issuances in instances of access device theft in an EBT system are consistent with federal regulations promulgated by the United States Department of Agriculture, which mandate state agencies’ strict liability for certain overissuances, including unauthorized account access: State agencies shall be held strictly liable for overissuances resulting from Electronic Benefit Transfer system errors and unauthorized account activities. Such overissuances shall include but not be limited to: . . . replacement benefits to a 15 FIRST AMENDED PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 household’s account due to unauthorized use of the benefits in a household’s account . . . . 7 C.F.R. 276.2(b)(7)(emphasis added). 55. Consistent with federal regulations, California has created a central fund for the purpose of providing payments or advances to CalFresh beneficiaries, including in cases of theft. Welf. & Inst. Code 15125. 56. On information and belief, Respondents currently utilize the Central Benefit Issuance Fund, or other funding source, to provide replacement issuances or payments to certain victims of CalFresh benefits theft and possess the technical capacity and legal authorization to restore the CalFresh benefits electronically stolen from Petitioners and others similarly situated. 57. State and federal rules provide that Respondents are responsible for ensuring the security of the EBT system to minimize the incidence of theft and unauthorized use of food benefits. Welf. & Inst. Code 10500; see also 7 U.S.C. 2016(h); 7 C.F.R. 274.8(a)(1)(ix), (b)(3); Cal. Gov. Code 29853.5. EBT Consumer Protection Legislation After Carpio v. Lightbourne 58. Despite the increasing frequency of electronic benefits theft, Respondents have consistently refused to replace electronically stolen benefits despite the mandatory language contained in MPP Section 63-603.115(c). 59. Prior to December 31, 2012, the Welfare and Institutions Code provided for restoration of stolen CalFresh benefits, but was drafted on the assumption that such theft would occur through theft of a beneficiary’s physical EBT card: A recipient shall not incur any loss of electronic benefits after reporting that his or her electronic benefits transfer card or personal identification number has been lost or stolen. Welf. & Inst. Code 10072(i)(1) (formerly subsection (g))(emphasis added). 16 FIRST AMENDED PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 60. The language contained in Section 10072(i)(1) was originally added as part of the Thompson-Maddy-Ducheny-Ashburn Welfare-to-Work Act of 1997. 1997 Cal AB 1542 (August 11, 1997). 61. Respondents’ policy guidance issued after passage of this 1997 legislation operated under the assumption that theft of benefits in an EBT system would occur only through theft of a physical EBT card. All County Information Notice (ACIN) No. 1-25-02, dated April 16, 2003, set forth Respondents’ policy regarding restoration of CalFresh benefits in instances where the beneficiary’s physical EBT card was stolen after receipt. According to this interpretive policy, in cases where a beneficiary reports a physical EBT card stolen, only those benefits taken after the card is reported stolen can be replaced. This policy did not address or consider instances of electronic theft in which benefits are electronically skimmed without the beneficiary losing the physical EBT card.5 The policy did, however, provide for the replacement of benefits taken before a report of theft where the physical EBT card is stolen from the mail (i.e. where the theft occurred before the beneficiary could have known about and had good cause to report the theft): BENEFIT REPLACEMENT 1. Under what circumstances can lost or stolen benefits be replaced? Recipients are instructed to immediately contact the EBT contractor [Citicorp Electronic Financial Services, Inc. (CEFS)J by calling the automated response unit or customer service center, or the county to report that their card has been lost or stolen. At the time of such report, the recipient is issued a replacement card, the lost or stolen card is immediately deactivated and no further use of the deactivated card is possible. Any benefits accessed prior to the report of the loss or theft of the original card cannot be 5 In cases of physical EBT card theft, it is possible for a victim to become aware of and report the theft before the thief attempts to access benefits. But in cases of electronic benefits theft such as skimming, it is impossible for a victim, who retains possession of his or her physical EBT card, to know about and report the theft in advance because the loss of benefits is the very event that alerts the beneficiary to the fact that the theft has occurred. 17 FIRST AMENDED PETITION FOR WRIT OF MANDATE 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 replaced. If the original card is not deactivated (due to inaction by CEFS or the county), any benefits accessed subsequent to the report shall be replaced. However, in those counties opting for mail-based issuance of EBT cards and Personal Identification Numbers (PINS), there may be circumstances in which the mailed card and PIN (sent separately) are not received by the recipient. In those cases, the recipient is entitled to replacement of benefits accessed prior to their reporting the non-receipt of the card. In such cases, CDSS strongly recommends that any recipient whose card has been stolen from the mail prior to receipt be issued their replacement card over the counter. Again, such benefit replacement can only occur during the EBT conversion period and for initial issuances in those counties choosing mail-based card and PIN issuance. ACIN No. 1-25-02, dated April 16, 2003 (italics in original, other emphasis added). 62. In response to the lack of legislation addressing the increasingly prevalent problem of electronic skimming theft that had not been originally contemplated, and Respondents’ policy interpretation of refusing to restore benefits stolen through skimming, a writ petition was filed in 2011 in Carpio v. Lightbourne, BS 135127 (\”Carpio\”). 63. In 2012, the California Legislature passed A.B. 2035 in explicit response to Carpio, finding and declaring its intent to address the issue specifically raised in Carpio: The Legislature finds and declares as follows: (a) State law provides relief for CaIWORKs parents and recipients, to restore their benefits when stolen. (b) However, no similar remedy exists when the benefits are delivered in electronic form, via an electronic benefits transfer (EBT) card, and the benefits have been stolen through the practice of skimming. (c) Countless families that depend on the basic needs grants CaIWORKs provides are vulnerable to electronic crimes, and currently have nowhere to turn. 18 FIRST AMENDED PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 (d) Because of this inequity, a petition for writ of mandate, Carpio v. Lightbourne (Case No. BS135127) was filed in the Los Angeles County Superior Court in December 2011, to address a solution for families that have been victims of skimming. (e) It is therefore the intent of the Legislature in enacting this act to address the problem of electronic theft of public benefits that is at issue in Carpio v. Lightbourne. 2012 Cal AB 2035 (emphasis added). 64. The Governor signed A.B. 2035 on September 14, 2012. The new law took effect on:January 1, 2013. This bill added two subparagraphs to subdivision (g) of Welfare and Institutions Code Section 10072, later renumbered as subdivision (i), which provided for the express restoration of cash benefits in cases of electronic skimming theft: (2) A recipient shall not incur any loss of cash benefits that are taken by an unauthorized withdrawal, removal, or use of benefits that does not occur by the use of a physical EBT card issued to the recipient or authorized third party to directly access the benefits. Benefits taken as described in this paragraph shall be promptly replaced in accordance with the protocol established by the department pursuant to paragraph (3). (3) The State Department of Social Services shall establish a protocol for recipients to report electronic theft of cash benefits that minimizes the burden on recipients, ensures prompt replacement of benefits in order to minimize the harm to recipients, and ensures program integrity. This protocol may include the automatic replacement of benefits without the need for recipient reporting and verification. Welf. & Inst. Code 10072(i)(2)-(3). 65. While Carpio and the consequent legislative modification to the Welfare and Institutions Code did not directly address the issue of skimming theft of CalFresh food benefits, the policy goals expressly furthered in the legislature’s statement of intent apply equally if not with greater force with respect to the victims of electronic skimming theft of CalFresh food benefits. 19 FIRST AMENDED PETITION FOR WRIT OF MANDATE 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Indeed, as with the Petitioners here, the victims of skimming often have both cash and food benefits stolen at the same time. 66. In passing A.B. 2035, the Legislature did not exclude or prohibit the restoration of CalFresh benefits stolen through skimming, did not express any intention to exclude or prohibit such restoration of CalFresh benefits, did not provide for the elimination of existing regulations mandating restoration of such stolen benefits, and did not provide any policy basis for denying critical food benefits to the victims of skimming theft in mandating the restoration of cash benefits for those self-same victims. 67. Following the passage of A.B. 2035, on or about August 30, 2013, Respondents issued an all-county letter (ACL) containing their \”Final County Instructions for Implementation of Assembly Bill 2035, Electronic Benefit Transfer (EBT) Electronic Theft.\” The letter was addressed to all county welfare departments, all CalWORKs program specialists, and all EBT coordinators. It instructs all counties that \”the AB 2035 statute does not apply to food benefits issued via the CalFresh and California Food Assistance Program (CFAP).\” ACL 13-67, August 30, 2013. 68. Respondents have misinterpreted this statement as a prohibition on replacement of CalFresh benefits and relied on ACL 13-67 to deny Petitioners’ claims for restoration of electronically stolen CalFresh benefits. This interpretation conflicts with existing state regulations contained in MPP Section 63-603.115(c), which expressly mandate the restoration of such stolen benefits. Respondents have improperly relied upon ACL 13-67 to justify an ultra vires, unlawful policy of denying the rights of Petitioners and other similarly situated welfare beneficiaries who are the victims of the crime of electronic benefits theft to have their critical, subsistence food benefits restored. 20 FIRST AMENDED PETITION FOR WRIT OF MANDATE REQUISITES FOR RELIEF 69. The instant application for writ of administrative mandate requested under Code of Civil Procedure Section 1094.5 is Petitioners’ sole and exclusive remedy for review of Respondents’ decisions upholding the denial of restored CalFresh benefits. 70. This verified petition is brought under Code of Civil Procedure Section 1094.5 and is authorized by Welfare & Institutions Code Section 10962, which permits filing a petition to review the entire proceeding conducted by CDSS. Under Code of Civil Procedure Section 1094.5 and Welfare and Institutions Code Section 10962, no filing fee or bond is required for such filing. 71. This verified petition is also brought under Code of Civil Procedure Section 1085 to compel Respondents’ compliance with its duty to administer public welfare benefits programs and administrative procedures in accordance with state and federal statutes, regulations, and rules. 72. California has declared that public social services are to be administered in full compliance with applicable federal and state laws. Welf. & Inst. Code 10600. 73. Respondents each have a ministerial duty to comply with the state and federal regulations set forth above and they continue to violate these regulations. 74. An actual and continuing controversy exists between Petitioners and Respondents regarding Respondents’ duties as alleged above. Petitioners contend that the actions of Respondents violate the law as specified above. Petitioners are info’ ned and believe that Respondents will dispute this contention. 75. Petitioners are beneficially interested in the faithful execution of Respondents’ duties, have exhausted available administrative remedies, and have no other adequate, plain, or speedy remedy at law to obtain Respondents’ compliance other than the relief sought by this 21 FIRST AMENDED PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 complaint and petition. Respondents’ failure and refusal to carry out the aforesaid duties has caused substantial hardship to Petitioners and other persons similarly situated. 76. Unless compelled to perform their duties and obligations in accordance with law, Respondents will continue to fail to do so, causing irreparable harm to Petitioners and the public. 77. This is a matter of significant public concern. The ongoing violation and misapplication of CalFresh rules and regulations causes the unjust and unlawful deprivation of subsistence nutritional benefits to eligible beneficiaries who are the innocent victims of electronic benefits theft. Respondents’ violations will continue to needlessly cause affected beneficiaries to challenge this violation, causing a drain on public funds. Petitioners have no adequate remedy at law to prevent this haiin. 78. Code of Civil Procedure Sections 1085 and 1094.5 confer a right of action to enforce the state and federal statutes and regulations Respondents have violated. 42 U.S.C. 1983 confers a right of action to enforce the federal laws Respondents have violated. Respondents have acted under color of state law to deprive Petitioners of their rights under federal law. 79. An actual and continuing controversy exists between Petitioners and Respondents regarding Respondents’ duties as alleged above. Petitioners contend that the actions of Respondents violate the law as specified above. Petitioners are informed and believe that Respondents will dispute this contention. 80. Separate and apart from their individual claims for relief, Petitioner Esther Ortega has standing to maintain this action as a citizen of this state with a significant interest in having the public duties in question enforced and in preventing Respondents from impairing or defeating the purpose of statutes and regulations establishing a public right to restoration of electronically stolen 22 FIRST AMENDED PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 CalFresh benefits. Petitioner Joe Soza has standing as a former citizen of this state at all times relevant to this action. FIRST CAUSE OF ACTION (Abuse of Discretion – Failure to Proceed in the Manner Required by Law) (Administrative Mandamus Pursuant to Code of Civil Procedure 1094.5) 81. Petitioners reallege and incorporate by reference each and every paragraph and allegation contained in this Petition as though fully set forth herein. 82. The Respondents prejudicially abused their discretion by adopting decisions that failed to proceed in the manner required by law. The Respondents’ decisions do not comply with applicable state and federal statutes and regulations governing the administration of the CalFresh program (specifically including, without limitation, those statutes, regulations, and rules governing the restoration of stolen CalFresh benefits) and state hearings. 7 C.F.R. 276.2(b)(7); MPP 63- 603.1; Cal. Gov’t Code 29853.5. 83. Respondents, through the actions of ALJs, committed errors of law by denying Petitioners’ requests for restoration of their CalFresh benefits after they were the victims of electronic benefits theft. 84. Respondents, through the actions of ALJs, committed errors of law by erroneously relying on and\/or misinterpreting ACL 13-67 as a basis for denying Petitioners’ requests for restoration of their CalFresh benefits after they were the victims of electronic benefits theft. 85. The issue in this cause of action concerns a matter of law and de novo review of the Respondents’ decision is thereby authorized; the reviewing court does not defer in any way to the Respondents’ interpretation of the law. Ruth v. Kizer, 8 Cal.App.4th 380, 385 (1992). 23 FIRST AMENDED PETITION FOR WRIT OF MANDATE 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 SECOND CAUSE OF ACTION (Abuse of Discretion – Failure to Proceed in Manner Required by Law) (Traditional Mandamus Pursuant to Code of Civil Procedure 1085) 86. Petitioners reallege and incorporate by reference each and every paragraph and allegation contained in this Petition as though fully set forth herein. 87. The Respondents are willfully failing to perform their public duty to fully and fairly administer the CalFresh program in accordance with governing statutes, regulations, and rules (specifically including, without limitation, those statutes, regulations, and rules governing the restoration of stolen CalFresh benefits). 7 C.F.R. 276.2(b)(7); MPP 63-603.1; Cal. Gov’t Code 29853.5. 88. Respondents, through the actions of ALJs, committed errors of law by erroneously relying on and\/or misinterpreting ACL 13-67 as a basis for denying Petitioners’ requests for restoration of their CalFresh benefits after they were the victims of electronic benefits theft. 89. An Order of Mandamus from this Court directing Respondents to comply with the law in the administration of their public duties and enjoining Respondents from relying on ACL 13-67 as a basis for denying claims for restoration of stolen CalFresh benefits is required to protect Petitioners and those similarly situated from prejudicial harm to their vested rights to public benefits that will foreseeably continue in the absence of such Order. THIRD CAUSE OF ACTION (Relief from Illegal Expenditure of Public Funds) (Violation of Code of Civil Procedure 526(a)) 90. Petitioner Ortega realleges and incorporates by reference each and every paragraph and allegation contained in this Petition as though fully set forth herein. 24 FIRST AMENDED PETITION FOR WRIT OF MANDATE 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 91. Respondents have expended public funds in the promulgation and implementation of the unlawful policies and practice alleged in this petition and complaint. 92. Petitioner Esther Ortega has paid a tax within and to the State of California within one year before commencement of this action. 93. Unless and until enjoined by this court, Respondents’ unlawful conduct will cause great and irreparable injury to Petitioner Ortega in that Respondents will continue to make illegal expenditures. PRAYER FOR RELIEF WHEREFORE, Petitioners pray for the following relief: 1. That this Court issue a writ of mandate pursuant to Code of Civil Procedure Section 1094.5 commanding the Respondents to rescind their decisions in Administrative Hearing Nos. 2016273045 and 2017151334; 2. That this Court issue a writ of mandate pursuant to Code of Civil Procedure section 1094.5 commanding the Respondents to issue a new decision cancelling their notices of denial of Petitioners’ requests for restoration of electronically stolen CalFresh benefits and approving Petitioners’ requests; 3. That this Court issue a writ of mandate pursuant to Code of Civil Procedure Section 1094.5 commanding the Respondents to pay Petitioners any benefits improperly withheld on the basis of the denial of their requests for the restoration of electronically stolen CalFresh benefits, or cash equivalent, plus interest at the statutory rate of ten percent on all benefits due to Petitioners here until paid in full; 4. That this Court issue a writ of mandate pursuant to Code of Civil Procedure Section 1085 commanding the Respondents to order their agents to comply with the mandatory 25 FIRST AMENDED PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 requirements of federal and state law with regard to the restoration of electronically stolen CalFresh, CFAP, and other non-cash benefits; 5. That this Court issue a writ of mandate pursuant to Code of Civil Procedure Section 1085 commanding the Respondents to amend or clarify any and all policy statements or interpretive documents, including without limitation All County Letter No. 13-67, to the extent that they conflict with federal and state statutes and regulations regarding the restoration of electronically stolen CalFresh, CFAP, and other non-cash benefits; 6. Issue a preliminary and permanent injunction prohibiting Respondents, their agents, successors, employees, and those acting in concert therewith from: (a) Denial of properly submitted beneficiary requests for the restoration of electronically stolen CalFresh benefits; (b) Reliance upon ACL 13-67 as a basis for refusing beneficiary requests for the restoration of stolen CalFresh benefits; 7. Declare that the following actions by Respondents, their agents, successors, employees, and those acting in concert therewith, violate state law and regulation: (a) Denial of properly submitted requests for the restoration of electronically stolen CalFresh benefits; (b) Reliance upon ACL 13-67 as a basis for denying beneficiary requests for the restoration of stolen CalFresh benefits; 8. That this Court award Petitioners their costs of suit; 9. That this Court award Petitioners their reasonable attorneys’ fees; and 10. The Court award such other and further relief as it deems proper. 26 FIRST AMENDED PETITION FOR WRIT OF MANDATE DATED: 03\/27\/2018 Respectfully submitted, LEGAL AID FOUNDATION OF LOS ANGELES, By: By: Andrew Kazakes Attorney for Petitioners Tyler Sutherland Attorney for Petitioners 27 FIRST AMENDED PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 VERIFICATION STATE OF CALIFORNIA COUNTY OF LOS ANGELES I, Andrew Kazakes, declare as follows: 1. I am an attorney licensed to practice law in California and represent Petitioners. 2. I have read the foregoing petition for Writ of Mandate, and know the contents thereof. They are true to the best of my knowledge except those allegations on information and belief which I believe to be true. I am more familiar with the factual and legal claims raised in this petition than the Petitioners. I declare under penalty of perjury under the law of California that the foregoing is true and correct. Date: 03\/27\/2018 28 Signed: Andrew Kazakes Attorney for Petitioner FIRST AMENDED PETITION FOR WRIT OF MANDATE ”

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