C.F. et al v. Lashway et al

MOTION for Partial Summary Judgment

W.D. Wash.April 3, 2017

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 1 16-cv-01205-RSM Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Hon. Ricardo S. Martinez UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON C.F., by and through his parent and guardian, L.F., J.P., by and through her mother and next friend, M.P., and L.B., by and through her parent and guardian, D.W., individually, and on behalf of similarly situated individuals, Plaintiffs v. PATRICIA LASHWAY, in her official capacity as Acting Secretary of the Washington State Department of Social and Health Services; and DOROTHY F. TEETER, in her official capacity as Director of the Washington State Health Care Authority, Defendants. No. 2:16-cv-01205-RSM PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT NOTE FOR MOTION: APRIL 28, 2017 (CLASS ACTION) I. INTRODUCTION Plaintiffs respectfully move for an Order of Partial Summary Judgment that Defendants are violating their rights under the federal Medicaid Act. They and other Medicaid beneficiaries with developmental disabilities are waiting indefinitely for the community-based residential habilitation services that they are entitled to receive with reasonable promptness under 42 U.S.C. § 1396a(a)(8). According to Defendants’ own testimony, the referral process for community Case 2:16-cv-01205-RSM Document 21 Filed 04/03/17 Page 1 of 18 PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 2 16-cv-01205-RSM Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 residential habilitation services relies on contracted providers to exercise their unilateral discretion to serve each individual. Due to Defendants’ insufficient payment and inflexible reimbursement methodologies, contracted providers cannot afford to accept most referrals for new clients. As established by Fed. R. Civ. P. 30(b)(6) testimony, Defendant Lashway’s Department of Social and Health Services (DSHS) does not authorize services until a provider has agreed to accept a referral and can begin delivering services, leaving individuals in an interminable state of limbo without the due process rights guaranteed under 42 U.S.C. § 1396a(3). Plaintiffs seek injunctive and declaratory relief to address the harm they and others are experiencing as a result of Defendants’ systemic mismanagement. None of the three Plaintiffs have been able to access the twenty-four hour residential training and supports and training that they need in order to safely live in their own homes and increase their independent living skills. After Plaintiff C.F.’s provider terminated his residential habilitation services, he was institutionalized because there were no other providers to replace these supports. L.F. Decl. at ¶ ¶ 13-16. When the same thing happened to Plaintiff L.B. in October of 2015, she moved to the home with her aging parents, where she has been waiting for services ever since. D.W. Decl. at ¶ ¶ 7-11, 17. Plaintiff J.P. has had a provider committed to serving her for the last two years, but she has been unable to move out of the institution where she currently resides because the provider has been unsuccessful in filling staffing requirements necessary to begin delivering services to her in the community. Sanabria Decl. at ¶ 7. Defendants have failed to establish a system to make residential habilitation services available to Plaintiffs, and consequently, individuals finding themselves in circumstances similar to Plaintiffs’ have no estimated timelines for when services will be authorized and provided. Case 2:16-cv-01205-RSM Document 21 Filed 04/03/17 Page 2 of 18 PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 3 16-cv-01205-RSM Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 In choosing to participate in the federal Medicaid program, Defendants are obligated to furnish federally funded services to Medicaid-eligible beneficiaries with reasonable promptness and with due process protections. 42 U.S.C. § 1396a(a)(3), (8). Based on the undisputed facts, and to the detriment of numerous vulnerable individuals, Defendants are failing to meet these obligations. II. ISSUES PRESENTED 1. In delaying authorization and provision of community-based residential habilitation services to eligible Medicaid beneficiaries, are Defendants failing to furnish these services with reasonable promptness in violation of 42 U.S.C. § 1396a(a)(8)? 2. In declining to provide Planned Action Notices to Medicaid beneficiaries who request but do not receive authorization for community-based residential habilitation services, are Defendants failing to provide adequate notice and fair hearing opportunities in violation of the due process requirements under 42 U.S.C. § 1396a(a)(3)? III. FACTS A. Defendants Are Failing to Promptly Authorize Supported Living Services 1. Defendants Use Federal Funding to Provide Supported Living Services. Plaintiffs C.F., L.B., and J.P. are all individuals with developmental disabilities who, at one time, have received and lost community-based residential habilitation services available to individuals served by the Department of Social and Health Services (DSHS) Developmental Disabilities Administration (DDA).1 L.F. Decl. at ¶ ¶ 6-7, 12-13; D.W. Decl. at ¶ ¶ 3-4, 7; Cooper 1 See Plaintiffs’ Motion for Class Certification for a more complete summary of all Plaintiffs’ history and current circumstances. Case 2:16-cv-01205-RSM Document 21 Filed 04/03/17 Page 3 of 18 PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 4 16-cv-01205-RSM Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Decl. ¶ 4, Exhs. A-C; Eaton Decl. Exh. A, Long 30(b)(6) Dep. at 53:15-21, Exh. 3 at 52-53. All three had been receiving a type of non-institutional residential habilitation service called “Supported Living,” which is the largest category of residential habilitation services that DSHS provides to DDA clients. Id.; Eaton Decl. Exh. C, Hakim30(b)(6) Dep. at 86:9-13; See also Livengood Decl. at ¶ 4. These community-based residential habilitation services provide in-home “direct support” staff to assist individuals with their daily living activities and support them to participate in their communities, as well as “habilitation” services to teach independent living and social skills. Id.; See also WAC 388-845-1500. In addition to directly delivering Supported Living services through the DSHS State Operated Living Alternatives (SOLA) program, DSHS provides for these services to be delivered under contracts with certified residential providers. See Eaton Decl. Exh. C, Hakim 30(b)(6) Dep. at 24:3-7, 68:6-21. DSHS spends over $30 million on residential habilitation services through its Core and Community Protection (CP) waivers. Eaton Decl. Exh. A, Long 30(b)(6) Dep. at 61:7-10, Exh. 3 at 52 and 57 (documenting approximately $27,000,000 to $28,000,000 in expenditures for Supported Living services funded by the Core waiver, and approximately $4,000,000 in expenditures for residential habilitation services funded by the CP waiver). The Core and CP waivers are two of five waivers available through DDA that DSHS uses to provide a variety of services to individuals in home and community-based settings. Eaton Decl. Exh. B, Whitehall 30(b)(6) Dep. at 10:13-23; see also WAC 388-845-0200; WAC 388-845-0015. For instance, both Plaintiffs C.F. and L.B. were participants on the Core waiver, which funded their Supported Living services until their contracted providers terminated services. L.F. Decl. at ¶ 6; D.W. Decl. at ¶ 3; Eaton Decl. Exh. C, Hakim Dep. at 105:12-25, 107:3-8, Exhs. 25-26. Case 2:16-cv-01205-RSM Document 21 Filed 04/03/17 Page 4 of 18 PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 5 16-cv-01205-RSM Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Based on applications that DSHS submits, the Centers for Medicare and Medicaid Services approves the Core and CP waivers to provide for federal funding. Eaton Decl. Exh. B, Whitehall 30(b)(6) Dep. at 16:8-15, 35:18-21. Both waivers are intended to allow individuals to reside in the community rather than an institutional setting. Id. at 12:24-13:13; see also WAC 388-845-0010. To qualify for waiver services, individuals must need a level of care that is provided in Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICFIID) and have an identified “health and welfare need” for a support that is necessary to prevent placement in an institutional setting. Id. at 14:5-18; see also WAC 388-845-0200. In Washington, ICFIID services are available at state operated institutions called “Residential Habilitation Centers” (RHCs), including Lakeland Village, Rainier, and Fircrest. Eaton Decl. Exh. G, Farrow 30(b)(6) Dep. at 38:19-39:14. For people who are discharging from RHCs, DSHS also receives additional federal funding under its “Roads to Community Living” (RCL) grant. Eaton Decl. Exh. G, Farrow 30(b)(6) Dep. at 101:3-23. For example, Plaintiff J.P. has been receiving RCL funding intended to cover the costs of her transition from Rainier RHC. See Eaton Decl. Exh. E, Stover Dep. at 8:15-17; 35:1-4, 62:25- 63:17. Similar to the Core and CP waivers, the RCL grant is administered by Centers for Medicare and Medicaid Services and was approved based on an application. Eaton Decl. Exh. G, Farrow 30(b)(6) Dep. at 101:18-22, 102:22-24. In order to qualify for RCL funding, an individual must: 1) be a DDA client, 2) be Medicaid eligible, 3) have been living in a qualifying institution for 90 days or more, and 4) not be enrolled on a waiver. Id. at 106:5-10. In addition to funding transition services, the RCL grant funds many community-based services that could also be funded by a DDA waiver. Eaton Decl. Exh. G, Farrow 30(b)(6) Dep. at 102:16-103:25. Washington uses “mirror codes” that allow Washington to bill at a 75% federal Case 2:16-cv-01205-RSM Document 21 Filed 04/03/17 Page 5 of 18 PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 6 16-cv-01205-RSM Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 reimbursement rate for RCL services that would otherwise be provided under the waiver at a roughly 50% federal reimbursement rate. Id. at 104:1-105:1. Washington uses the RCL 75% federal funding match to pay for the same Supported Living services that it can also provide under the Core or CP waiver. Id. at 106:18-25, 117:15-18. RCL pays for services until the end of the individual’s “demonstration year,” at which point individuals will be placed on a Core or CP waiver to continue funding their Supported Living services. Id. at 107:11-16, 121:6-24. 2. DSHS’s Referral System Delays Authorization of Supported Living Services. If an eligible individual requests Supported Living services, DSHS sends potential providers a “referral packet” that providers have discretion to accept or decline. Livengood Decl. at ¶ ¶ 15-16; Eaton Decl. Exh. C, Hakim 30(b)(6) Dep. at 71:3-9. When DSHS sends referral packets, it enters information about the individual seeking services and the referrals into a referral database. Id. at 12:25-13:3,138:15-25, Exh. 33; Eaton Decl. Exh. E, Stover Dep. at 15:18-16:24; Eaton Decl. Exh. D, Stewart Dep. at 25:8-15. DSHS also maintains a spreadsheet of RHC residents enrolled in RCL, which tracks when they enroll and when they move out. Eaton Decl. Exh. G, Farrow 30(b)(6) Dep. at 36:11-15, 37:21-24. While individuals are searching for a provider, they may be approved for a waiver, but their services are not necessarily authorized. Eaton Decl. Exh. C, Hakim 30(b)(6) Dep. at 14:14-23, 16:1-5. DSHS does not “authorize” services until a provider accepts the individual and begins service delivery. Id. 16:7-16. If no providers agree to serve an individual for whom referral packets have been submitted, DSHS does not authorize Supported Living services. Id. at 18:21-19:1. DSHS’s referral process does not provide any guarantee for how long an individual could wait for a provider to accept his or her referral. If no provider accepts a referral, DSHS informs Case 2:16-cv-01205-RSM Document 21 Filed 04/03/17 Page 6 of 18 PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 7 16-cv-01205-RSM Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 the client that there are no providers in their area that can serve them and broadens the scope of the referral area with the client’s consent. Eaton Decl. Exh. C, Hakim 30(b)(6) Dep. at 19:6-11, 60:11-18. Or, as in the case of Plaintiff L.B., DSHS may resend referrals to the same providers. Eaton Decl. Exh. D, Stewart Dep. at 23:13-20; Livengood Decl. at ¶ 17. For RHC residents on the RCL grant, DSHS testified that “we just keep trying to refer the person to other providers or resubmit the referral.” Eaton Decl. Exh. G, Farrow 30(b)(6) Dep. at 119:10-120:1. Individuals like Plaintiff C.F. who have no other support options may be placed in an RHC while they wait for provider who can adequately meet their needs to offer services. L.F. Decl. at ¶ ¶ 13-14. If every provider declines an individual’s referral, DSHS simply continues to search until there is a provider who “eventually” accepts. Eaton Decl. Exh. C, Hakim 30(b)(6) Dep. at 48:21-49:7; Eaton Decl. Exh. D, Stewart Dep. at 36:10-14. Even when a provider accepts a referral, it could take many months to a year to begin delivering services. See e.g. Livengood Decl. at ¶ 19; Smith Decl. at ¶ ¶ 12-14; Briscoe Decl. at ¶ 7. In Plaintiff J.P.’s case, this has added over a two year delay. Eaton Decl. Exh. E, Stover Dep. at 34:15-19; Sanabria Decl. at ¶ 7. Individuals are waiting indeterminately long periods for Supported Living providers to accept their referrals and begin services because providers are facing a “workforce crisis.” Livengood Decl. at ¶ 21. Providers are declining most referrals that they receive because they cannot maintain adequate staff with the wages they are able to pay under Defendants’ current reimbursement model. Id. at ¶ 9; Briscoe Decl. at ¶ ¶ 8-11. Under DSHS policy, providers receive payments to provide clients with a set of Instruction and Support Services (ISS) hours assessed by DSHS. Livengood Decl. at ¶ 9. Eaton Decl. Exh. C, Hakim30(b)(6) Dep. at 107:9-18, Exh. 27. Providers must deliver all hours that DSHS allocates and reimburses at a set benchmark rate, which means “providers have very little flexibility to raise staff wages.” Id. at 117:12-118:5; Livengood Case 2:16-cv-01205-RSM Document 21 Filed 04/03/17 Page 7 of 18 PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 8 16-cv-01205-RSM Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Decl. at ¶ 10. According to providers, they are being funded at a benchmark rate that does not even support paying the current state minimum wage. Livengood Decl. at ¶ 20. As a result, DSHS’s own survey results show that by 2015, the Supported Living staff turnover rate had reached over 50% and the vacancy rate was over 10%. Id. at ¶ 8; see also Briscoe Decl. at ¶ ¶ 12-13; Smith Decl. at ¶ ¶ 19-20. Presently, providers are accepting very few referrals because they unable to retain enough staff to serve current clients, “let alone increase capacity to serve new clients.” Livengood Decl. at ¶ 21. In its budget request for 2017-19, DSHS acknowledged as much, explaining: “People who formerly might have been interested in beginning work or continuing to work with people with developmental disabilities now have to make the choice between working for less pay in [Supported Living] or going to a higher paying job in the in-home field for what is often lighter work.” Eaton Decl. Exh. C, Hakim 30(b)(6) Dep. at 136:10-138:14, Exh. 32 at 3. In its request, DSHS recognizes that its contractors are struggling just to stay solvent, indicating that a proposed rate increase “would help community residential providers reach an operating margin that allows them to stay in business.” Id.(emphasis added). Despite available federal funding and enrollment on the Core waiver, Defendants’ referral process and rate methodology have resulted in significant delays. Plaintiff L.B. began searching for a Supported Living provider in 2015, after DSHS had allowed her Supported Living provider of nearly fifteen years to unilaterally terminate her services. D.W. Decl. at ¶ ¶ 7-8. No provider expressed interest in serving L.B. until late 2016. Eaton Decl. Exh. D, Stewart Dep. at 23:13-20. Even then, DSHS documented that while the provider was interested in serving L.B., “they don’t have a vacancy or timeline” and that her “[f]amily was made aware that it might take a while to put everything together.” Id. 59:5-60:6, Exh. 2 at 84. To date, L.B. continues to wait for Supported Case 2:16-cv-01205-RSM Document 21 Filed 04/03/17 Page 8 of 18 PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 9 16-cv-01205-RSM Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Living services to begin, which according to DSHS, is necessary for it to authorize services. D.W. Decl. at ¶ 17; Eaton Decl. Exh. D, Stewart Dep. at 22:9-24; Eaton Decl. Exh. C, Hakim 30(b)(6) Dep. at 16:7-16. The fact that DSHS operates its own SOLA program to deliver Supported Living services does not offer any relief because, according to DSHS, “the number of people SOLA can support is limited.” Eaton Decl. Exh. C, Hakim 30(b)(6) Dep. at 57:4-8. For individuals like C.F., SOLA services may seem preferable because unlike contracted providers, SOLAs do not terminate services. Eaton Decl. Exh. F, Barnes-Hedblom Dep. at 35:17-21, 36: 8-11; Eaton Decl. Exh. C, Hakim 30(b)(6) Dep. at 101:23 (“SOLA cannot terminate services”); Livengood Decl. at ¶ 13 (acknowledging that contracted providers can and do terminate services). But even if an individual states a preference for SOLA services, DSHS does make SOLA services an option when there is no capacity. Eaton Decl. Exh. C, Hakim 30(b)(6) Dep. at 58:15-25 (“…if SOLA does not have capacity…it’s not included in the choice of providers.”). DSHS does not even put the individual on a waitlist. Id. at 57:24-58:2. Instead, SOLA services are offered when there are openings, which “don’t happen all that often.” Id.; Eaton Decl. Exh. F, Barnes-Hedblom Dep. at 35:20-21. Based on the data it maintains, DSHS cannot deny that its system has allowed a backlog of individuals seeking Supported Living services. Recently, DSHS admitted that over half of the individuals it counted in April 2016 were still searching for a provider. Eaton Decl. Exh. C, Hakim 30(b)(6) Dep. at 11:24-12:10; 31:22-32:1; see also Exhs. 9-11. Furthermore, out of ninety-five RHC residents seeking to discharge, fifty of whom have been requesting deinstitutionalization since August 2015, DSHS identified only sixteen who had been able move out. Eaton Decl. Exh. G, Farrow 30(b)(6) Dep. at 24:12-25:1, 42:17-24, 46:24-47:11, 60:13-23, Exh. 11 at 9, Exhs. 20- Case 2:16-cv-01205-RSM Document 21 Filed 04/03/17 Page 9 of 18 PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 10 16-cv-01205-RSM Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 21. In short, DSHS has a waiting list of well over a hundred individuals seeking supported living services, dozens of whom have been waiting a year or more. B. Medicaid Beneficiaries Who Wait Indefinitely for Supported Living Services Receive No Notice of Administrative Fair Hearing Rights Pursuant to state regulations, DSHS issues a notice to DDA clients and service applicants to inform them of any decisions to authorize, reduce, terminate, or deny a service. WAC 388-825- 100, 103. The notice also informs DDA clients and service applicants of the reason and authority for DDA’s decisions, the effective date, and the client’s rights to an appeal agency actions. WAC 388-825-104; WAC 388-825-120. For example, L.B. received numerous “Planned Action Notices” (PANs) over the years to notify her of services that DDA was approving for her. D.W. Decl. at ¶ 18, Exhs. A-G. All of these notices included information about DDA’s decisions and her rights to dispute these decisions through a fair hearing. Id. DSHS, however, does not issue a PAN when it withholds authorization of Supported Living services for individuals that have no providers willing to accept their referral. Eaton Decl. Exh. C, Hakim 30(b)(6) Dep. at 19:2-11 (“…we are not declining a service; so a PAN should not be issued.”). When any provider declines to provide services, DSHS does not consider this to be a service denial, even if it is DSHS’s own SOLA program that is declining to serve the individual. Id. at 58:11-14. Regardless of whether individuals are waiting in an RHC or another setting, DSHS does not issue any PAN so long as the individual is continuing to search for a provider. Id. at 54:9- 16. No matter how long an individual searches, there is no point at which DSHS would issue a PAN to notify DDA clients that it cannot provide Supported Living services because DSHS does not consider the failure to provide or authorize services to be equivalent to declining a service. See id. at 19:19-23 (“We would issue a PAN if we decline a service.”). Case 2:16-cv-01205-RSM Document 21 Filed 04/03/17 Page 10 of 18 PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 11 16-cv-01205-RSM Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 As L.B.’s case manager stated, “it can be very difficult” if no provider accepts an individual’s referral, but she agreed there is no point at which DSHS would issue a PAN to notify an individual that DSHS was denying a request for services. Eaton Decl. Exh. D, Stewart Dep. at 36:10-19. Thus, despite the fact that L.B. has never received the Supported Living services that she requested in July of 2015, DSHS has never issued her any notice advising her of any decision or fair hearing rights. D.W. Decl. at ¶ 18. IV. LAW AND ARGUMENT A. Defendants are failing to Furnish Supported Living Services with Reasonable Promptness. In choosing to participate in the Medicaid program, Washington is bound to follow the requirements of the federal Medicaid Act and its implementing regulations. Wilder v. Virginia Hospital Association, 496 U.S. 498 (1990). Furthermore, in choosing to operate a home and community based services waiver authorized under 42 U.S.C. § 1396n(c), Washington must afford individuals who are entitled to waiver services “the protections of the Medicaid Act with respect to those services.” Susan J. v. Riley, 254 F.R.D. 439, 454 (M.D. Ala. 2008). Although the provisions of 42 U.S.C. § 1396n(c) allow the federal government to waive certain Medicaid requirements in order to provide states with the flexibility needed to offer a broader array of home and community based services, “it may not waive any requirements that protect the well-being of Medicaid recipients.” Guggenberger v. Minnesota, 198 F. Supp.3d 973, 1005 (D. Minn. 2016) (citing Wood v. Tompkins, 33 F.3d 600, 602 (6th Cir.1994)). Under 42 U.S.C. § 1396a(a)(10)(A), “[a] state plan for medical assistance must provide...for making medical assistance available [for described services] to all individuals who meet certain eligibility requirements.” See A. H. R. v. Washington State Health Care Auth., No. Case 2:16-cv-01205-RSM Document 21 Filed 04/03/17 Page 11 of 18 PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 12 16-cv-01205-RSM Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 C15-5701JLR, 2016 WL 98513, at *11 (W.D. Wash. Jan. 7, 2016) (internal quotes omitted). The reasonable promptness provision of 42 U.S.C. § 1396a(a)(8) further requires Medicaid state plans to “provide that all individuals wishing to make application for medical assistance under the plan shall have an opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals.” Dunakin v. Quigley, 99 F. Supp.3d 1297, 1320 (W.D. Wash. 2015), reconsideration denied, No. C14-0567JLR, 2015 WL 4076789 (W.D. Wash. July 1, 2015). This requirement mandates reasonably prompt payment for services as well as the provision of services themselves. See 42 U.S.C. § 1396d(a) (defining “medical assistance” to include “payment of part or all of the cost of ... care and services or the care and services themselves or both”); see also Leonard v. Mackereth, 2014 WL 512456, *6 (E.D. Pa. Feb. 10, 2014); Disability Rights N.J., Inc. v. Velez, No. Civ.A.05–4723, 2010 WL 5055820 (D.N.J. Dec. 2, 2010). The services that are covered by the term “medical assistance” includes services that meet these four key elements: (1) federal funds; (2) to be spent in “payment of part or all of the cost”; (3) of certain services; (4) for or to “[p]atients meeting the statutory requirements for Medicaid.” Univ. of Washington Med. Ctr. v. Sebelius, 634 F.3d 1029, 1034 (9th Cir. 2011). Upon reconsideration in Dunakin, this Court found that state-funded services for nursing facility residents satisfied the definition of the “medical assistance” because federal funds were “apparently available to be spent in payment of part or all of the cost” of providing these services to Medicaid-eligible nursing facility residents. Dunakin v. Quigley, No. C14-0567JLR, 2015 WL 4076789, at *3 (W.D. Wash. July 1, 2015) (internal quotes omitted). Like the services the Court found in Dunakin to constitute “medical assistance,” the state may obtain federal reimbursements to pay for part of the costs of delivering Supported Living services to Medicaid eligible recipients. If the state elects to initially use its federal RCL funding Case 2:16-cv-01205-RSM Document 21 Filed 04/03/17 Page 12 of 18 PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 13 16-cv-01205-RSM Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 for individuals discharging from an institution, this funding is for the same Supported Living services covered by Washington’s Core and CP waivers, which then pick up the payments after twelve months. Eaton Decl. Exh. G, Farrow 30(b)(6) Dep. at 106:18-25, 117:115-18, 107:11-116; 121:6-24. As such, regardless of whether or not Supported Living services are funded with a 50% federal reimbursement rate under a Medicaid waiver, or a 75% federal match under the RCL grant, these services qualify as “medical assistance” that the state must make available and provide to Medicaid-eligible individuals with reasonable promptness under 42 U.S.C. §§ 1396a(a)(8) and 1396a(a)(10). Additionally, it is well-established that the reasonable promptness provision creates a privately enforceable right under 42 U.S.C. § 1983. See e.g. Doe v. Chiles, 136 F.3d 709 (11th Cir. 1999) (affirming order for state to provide ICFIID services to eligible recipients within ninety days); Sabree ex rel. Sabree v. Richman, 367 F.3d 180, 183 (3d Cir. 2004) (finding § 1396a(a)(8) “unambiguously” conferred enforceable right); Bryson v. Shumway, 308 F.3d 79, 89 (1st Cir. 2002) (applying § 1396a(a)(8) to waiver program); Romano v. Greenstein, 721 F.3d 373 (5th Cir. 2013). In these and other cases across the country, courts have applied the “reasonable promptness” requirement in contexts that bear similarities to this case, and these courts have acknowledged individual rights of Medicaid beneficiaries like the named Plaintiffs and the putative class to access services they are eligible to receive under the Medicaid Act. First, in Alabama, a district court held that it was “plain that all persons who apply for HCB Waiver services enjoy the protection of § 1396a(a)(8)” and that these “[a]pplicants are entitled to have their claims determined with reasonable promptness.” Susan J., 254 F.R.D. at 455. There, the district court certified a subclass of recipients represented by an individual who had been seeking waiver funded residential services, but after being placed on a waiting list, had received no updates Case 2:16-cv-01205-RSM Document 21 Filed 04/03/17 Page 13 of 18 PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 14 16-cv-01205-RSM Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 on the status of her request. Id. Here, there is no dispute that Defendants do not provide for Supported Living services to be authorized until a provider decides to accept an individual’s referral and begins to deliver services. Eaton Decl. Exh. C, Hakim 30(b)(6) Dep. at 14:14-23; 16:1- 5; 18:21-19:1. In Washington, there is no recognized “waiting list” for Supported Living vacancies that may become available, but DSHS enters information about waiting clients into its referral database and spreadsheet. Id. at 12:25-13:3; Eaton Decl. Exh. E, Stover Dep. at 15:18-16:24; Eaton Decl. Exh. D, Stewart Dep. at 25:8-15; Eaton Decl. Exh. G, Farrow 30(b)(6) Dep. at 36:11-15; 37:21-24. As Defendant’s own data shows, some individuals like L.B. may wait in limbo for well over a year for a provider to even accept their referral. Even then, services will not be authorized until the provider begins to deliver the services, which may take many more months, or even years - as in the case of J.P. and other DDA clients. See Eaton Decl. Exh. C, Hakim 30(b)(6) Dep. at 16:7-16; Sanabria Decl. at ¶ 7; Livengood Decl. at ¶ 19; Smith Decl. at ¶ ¶ 12-14; Briscoe Decl. at ¶ 7. In another case from Massachusetts, the district court acknowledged reasonable promptness rights for Medicaid beneficiaries who could not find providers due to the state’s low reimbursement rates. Health Care For All, Inc. v. Romney, No. CIV.A. 00-10833RWZ, 2005 WL 1660677, at *10 (D. Mass. July 14, 2005). The court held that where the state had set “reimbursement levels so low” that providers could “not afford to treat Medicaid enrollees,” the state’s actions and protocols were “effectively frustrat[ing] the reasonable promptness provision by foreclosing the opportunity for enrollees to receive medical assistance at all, much less in a timely manner.” Id. In this matter, Defendants’ own budget request acknowledges that its rates are too low for Supported Living providers to retain adequate staff. Eaton Decl. Exh. C, Hakim 30(b)(6) Dep. at 136:10 - 138:14, Exh. 32 at 3. Defendants are well aware that the way in which it Case 2:16-cv-01205-RSM Document 21 Filed 04/03/17 Page 14 of 18 PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 15 16-cv-01205-RSM Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 reimburses its contractors is a barrier to being able to promptly provide Supported Living services under the Medicaid Act. See Livengood Decl. at ¶ ¶ 22-24. However, like the state of Massachusetts, Defendants have chosen to continue practices that “subvert the statute’s intent.” Health Care For All, 2005 WL 1660677, at *10. Finally, courts have found that states must provide waiver services with reasonable promptness to individuals participating in the state’s waiver program. Analyzing an array of cases involving waiver service waitlists, a district court in Minnesota distinguished instances of administrative “mismanagement” from instances where individuals cannot access waiver services due to a cap on the number of waiver participants or unavailability of funding. Guggenberger v. Minnesota, 198 F. Supp.3d 973, 1012 (D. Minn. 2016). The Court explained: “[W]ith respect to otherwise eligible individuals below the cap or for whom funding is available, a state's failure to fill available waiver slots or use funding appropriated for Waiver Services may violate the reasonable promptness requirement or at least raise questions as to whether such a violation has occurred. This is true even if the state utilizes federally-approved caps or priority criteria.” Id (internal cites omitted). Similarly, in an earlier circuit court decision, the Fourth Circuit found that the state of South Carolina was obligated to provide residential habilitation services with reasonable promptness to an eligible waiver participant with developmental disabilities. Doe v. Kidd, 419 F. App’x 411 (4th Cir. 2011). The Court determined that the state had violated the individual’s rights under the Medicaid Act in not providing her with these waiver-funded services, and that it was “within the equitable powers of the courts” to order Defendants to place the plaintiff in an appropriate residential habilitation program “of her choice.” Id. at 419. In this case, the named Plaintiffs and the proposed class are all participating in or are eligible to participate in the state’s waiver and RCL programs that fund community-based residential habilitation services with federal match reimbursements. Yet, due to Defendants’ mismanagement of the Supported Living Case 2:16-cv-01205-RSM Document 21 Filed 04/03/17 Page 15 of 18 PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 16 16-cv-01205-RSM Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 program, these services are unavailable to them. Just as the Fourth Circuit held, this Court has authority to order the Defendants to provide the residential habilitation services with reasonable promptness to eligible individuals who need these services. Id. B. Defendants are Violating Notice and Fair Hearing Rights The Medicaid Act requires that “[a] State plan for medical assistance must ... provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is denied or is not acted upon with reasonable promptness.” 42 U.S.C. § 1396a(a)(3). “Medicaid regulations in turn require state agencies to provide notice to participants of their right to a hearing under some circumstances.” K.W. ex rel. D.W. v. Armstrong, 789 F.3d 962, 970 (9th Cir. 2015) (citing 42 C.F.R. § 431.206). Under these Medicaid regulations, states must “inform every applicant or beneficiary in writing ... [o]f his right to a hearing ... [a]t the time of any action affecting his or her claim.” Id. Like the reasonable promptness provision, the Medicaid Act’s fair hearing requirement also creates a privately enforceable right. JL v. New Mexico Dep't of Health, 165 F. Supp.3d 1048, 1064 (D.N.M. 2016). None of the named Plaintiffs received notice and opportunity for a fair hearing after requesting Supported Living services. For instance, despite claiming an entitlement to this service, the guardian of L.B. never received any PAN to notify her of the reasons that L.B. could not access Supported Living services or any legal recourse that she could take in response to the state’s failure to act upon her claims with reasonable promptness. See e.g. D.W. Decl. at ¶ 18. According to DSHS’s own testimony, this is consistent with Defendants’ practices. Eaton Decl. Exh. C, Hakim 30(b)(6) Dep. at 19:2-23; 54:9-16. DSHS admitted that it does not issue notices to DDA clients who request Supported Living services because it does not recognize its failure to authorize services as a constructive denial of services. See id. at 58:11-14. Even Case 2:16-cv-01205-RSM Document 21 Filed 04/03/17 Page 16 of 18 PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 17 16-cv-01205-RSM Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 individuals like C.F. who requested services from DSHS’s own SOLA program receive no PAN notifying them of any denial. Eaton Decl. Exh. C, Hakim 30(b)(6) Dep. at 58:11-14. As a result, DDA clients are never given an opportunity to challenge any reasons for their inability to access the services that they are entitled to receive under the Medicaid Act. This DSHS practice violates the Medicaid due process rights of Plaintiffs and the putative class. V. CONCLUSION Based on the foregoing, Plaintiffs respectfully request an order granting partial summary judgment that provides declaratory and injunctive relief against the Defendants under 42 U.S.C. § 1396a(a) for failing to authorize and provide Supported Living services with reasonable promptness and failing to provide notice and opportunity for a fair hearing. DATED: April 3, 2017. DISABILITY RIGHTS WASHINGTON /s/ Sarah Eaton Sarah Eaton, WSBA #46854 Susan Kas, WSBA #36592 David Carlson, WSBA #35767 315 – 5th Avenue South, Suite 850 Seattle, WA 98104 Tel. (206) 324-1521; Fax (206) 957-0729 Email: sarahe@dr-wa.org susank@dr-wa.org davidc@dr-wa.org Attorneys for Plaintiffs Case 2:16-cv-01205-RSM Document 21 Filed 04/03/17 Page 17 of 18 PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 18 16-cv-01205-RSM Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 CERTIFICATE OF SERVICE I hereby certify that on April 3, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following:  Angela D. Coats McCarthy (AngelaC3@atg.wa.gov)  Kathryn Krieger (KATHRYNK1@atg.wa.gov)  Martin E Wyckoff (MartinW@atg.wa.gov) DATED: April 3, 2017, at Seattle, Washington. /s/Mona Rennie Legal Assistant Disability Rights Washington Case 2:16-cv-01205-RSM Document 21 Filed 04/03/17 Page 18 of 18 [PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 1 Case: 16-01205-RSM Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Hon. Ricardo S. Martinez UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON C.F., by and through his parent and guardian, L.F., J.P., by and through her mother and next friend, M.P., and L.B., by and through her parent and guardian, D.W., individually, and on behalf of similarly situated individuals, Plaintiffs v. PATRICIA LASHWAY, in her official capacity as Acting Secretary of the Washington State Department of Social and Health Services; and DOROTHY F. TEETER, in her official capacity as Director of the Washington State Health Care Authority, Defendants. No. 2:16-cv-01205-RSM [PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT (CLASS ACTION) I. ORDER This matter comes before the Court on Plaintiffs’ Motion for Partial Summary Judgment [Dkt. No. --]. Plaintiffs allege that Defendants are failing to furnish these community-based residential habilitation services with reasonable promptness in violation of 42 U.S.C. § 1396a(a)(8) and are failing to provide adequate notice and fair hearing opportunities in violation of the due process requirements under 42 U.S.C. § 1396a(a)(3). Having considered the parties’ papers filed Case 2:16-cv-01205-RSM Document 21-1 Filed 04/03/17 Page 1 of 6 [PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 2 Case: 16-01205-RSM Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 in support and in opposition to the motion, the Court GRANTS Plaintiffs’ Motion for Summary Judgment with respect to Plaintiffs’ Medicaid claims under 42 U.S.C. § 1396a(a)(3), (8) consistent with the findings below: II. FINDING OF FACTS 1. Defendant Lashway’s Department of Social and Health Services (DSHS) administers a program to deliver community-based residential habilitation services through the Developmental Disabilities Administration (DDA). 2. Supported Living services is the largest category of residential habilitation services that Defendants provide. Defendants deliver Supported Living services through DSHS’s State Operated Living Alternatives (SOLA) program, and provide for these services to be delivered under contracts with certified residential providers. 3. DSHS obtains federal funding through the Core and Community Protection waivers and Roads to Community Living (RCL) grant to pay for part of the cost of Supported Living services. Funding is approved by the Centers for Medicare and Medicaid Services based on based on applications that DSHS submits. To qualify for waiver services, individuals must need a level of care that is provided in Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICFIID) and have an identified “health and welfare need” for a support that is necessary to prevent placement in an institutional setting. In order to qualify for RCL funding, an individual must: 1) be a DDA client, 2) be Medicaid eligible, 3) have been living in a qualifying institution for 90 days or more, and 4) not be enrolled on a waiver. 4. If an eligible individual requests Supported Living services, DSHS sends potential providers a “referral packet” that providers have discretion to accept or decline. DSHS does not authorize services until a provider accepts the individual and begins service delivery. If no Case 2:16-cv-01205-RSM Document 21-1 Filed 04/03/17 Page 2 of 6 [PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 3 Case: 16-01205-RSM Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 providers agree to serve an individual for whom referral packets have been submitted, DSHS does not authorize Supported Living services. 5. DSHS’s referral process does not provide any guarantee for how long an individual could wait for a provider to accept his or her referral. When DSHS sends referral packets, it enters information about the individual seeking services and the referrals into a referral database. DSHS also maintains a spreadsheet of RHC residents enrolled in RCL that tracks when they enroll and when they are able to move. DSHS does not maintain waitlists. 6. Providers are declining most referrals that they receive because they cannot maintain adequate staff with the wages they are able to pay under Defendants’ current reimbursement model. 7. Defendants’ referral process and rate methodology has allowed a backlog of individuals seeking Supported Living services. The Defendants’ systemic deficiencies have resulted in significant delays for the named Plaintiffs and dozens of other individuals who have been waiting a year or more for Supported Living services. 8. Defendants do not issue any “Planned Action Notices” (PAN’s) to individuals that have no providers willing to accept their referral. When any provider declines to provide services, DSHS does not consider this to be a service denial, even if it is DSHS’s own SOLA program that is declining to serve the individual. Regardless of how long an individual searches, there is no point in which DSHS would issue a PAN to notify DDA clients that it cannot provide Supported Living services because DSHS does not consider the failure to provide or authorize services to be equivalent to declining a service. Case 2:16-cv-01205-RSM Document 21-1 Filed 04/03/17 Page 3 of 6 [PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 4 Case: 16-01205-RSM Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 III. CONCLUSIONS OF LAW 1. In choosing to participate in the Medicaid program, Washington is bound to follow the requirements of the federal Medicaid Act and its implementing regulations. Wilder v. Virginia Hospital Association, 496 U.S. 498 (1990). Washington must afford individuals who are entitled to waiver services authorized under 42 U.S.C. §1396n(c), “the protections of the Medicaid Act with respect to those services.” Susan J. v. Riley, 254 F.R.D. 439, 454 (M.D. Ala. 2008). 2. Under 42 U.S.C. § 1396a(a)(10)(A), “[a] state plan for medical assistance must provide...for making medical assistance available [for described services] to” all individuals who meet certain eligibility requirements. 3. The reasonable promptness provision of 42 U.S.C. § 1396a(a)(8) further requires Medicaid state plans to “provide that all individuals wishing to make application for medical assistance under the plan shall have an opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals.” This requirement mandates reasonably prompt payment for services as well as the provision of services themselves. It is well-established that the reasonable promptness provision creates a privately enforceable right under 42 U.S.C. §1983. See e.g. Doe v. Chiles, 136 F.3d 709 (11th Cir. 1999); Sabree ex rel. Sabree v. Richman, 367 F.3d 180, 183 (3d Cir. 2004); Bryson v. Shumway, 308 F.3d 79, 89 (1st Cir. 2002); Romano v. Greenstein, 721 F.3d 373 (5th Cir. 2013). 4. The services that are covered by the term “medical assistance” includes services that meet these four key elements: (1) federal funds; (2) to be spent in “payment of part or all of the cost”; (3) of certain services; (4) for or to “[p]atients meeting the statutory requirements for Medicaid.” Univ. of Washington Med. Ctr. v. Sebelius, 634 F.3d 1029, 1034 (9th Cir. 2011). Case 2:16-cv-01205-RSM Document 21-1 Filed 04/03/17 Page 4 of 6 [PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 5 Case: 16-01205-RSM Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Supported Living services qualify as “medical assistance” that the state must make available and provide to Medicaid-eligible individuals with reasonable promptness under 42 U.S.C. §§ 1396a(a)(8) and 1396a(a)(10). 5. In failing to establish a referral system and reimbursement methodology that facilitates the reasonably prompt authorization and provision of Supported Living services, Defendants have engaged in conduct that subverts the intent of the Medicaid Act. Defendants’ conduct violates the requirement in 42 U.S.C. § 1396a(a)(8) to provide residential habilitation services with reasonable promptness to eligible individuals with developmental disabilities. 6. The Medicaid Act requires that “[a] State plan for medical assistance must ... provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is denied or is not acted upon with reasonable promptness.” 42 U.S.C. § 1396a(a)(3); 42 C.F.R. § 431.206. The Medicaid Act’s fair hearing requirement creates a privately enforceable right under 42 U.S.C. §1983. JL v. New Mexico Dep't of Health, 165 F. Supp. 3d 1048, 1064 (D.N.M. 2016). 7. Defendants’ failure to authorize Supported Living services is a constructive denial of community-based residential habilitation services. In failing to issue notices to DDA clients who request Supported Living services, Defendants are violating the Medicaid due process requirements in 42 U.S.C. § 1396(a)(3). 8. Plaintiffs are entitled to declaratory and injunctive relief enjoining Defendants from engaging in conduct that violates the reasonable promptness and due process requirements of Medicaid Act in 42 U.S.C. §1396a(a)(3), (8). It is now therefore, Case 2:16-cv-01205-RSM Document 21-1 Filed 04/03/17 Page 5 of 6 [PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 6 Case: 16-01205-RSM Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ORDERED that Plaintiffs’ Motion for Partial Summary Judgment is GRANTED and that a partial judgment be entered in favor of Plaintiffs providing declaratory and injunctive relief against the Defendants under the Medicaid Act. DATED: this ______day of April, 2017. HONORABLE RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE Presented by: DISABILITY RIGHTS WASHINGTON /s/ Sarah Eaton Sarah Eaton, WSBA #46854 Susan Kas, WSBA #36592 David Carlson, WSBA #35767 315 – 5th Avenue South, Suite 850 Seattle, WA 98104 Tel. (206) 324-1521; Fax (206) 957-0729 Email: sarahe@dr-wa.org susank@dr-wa.org davidc@dr-wa.org Attorneys for Plaintiffs Case 2:16-cv-01205-RSM Document 21-1 Filed 04/03/17 Page 6 of 6