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Esther Darling et. al. v. Toby Douglas, Director of California Department of Health Care Services (formerly Brantley v. Maxwell-Jolly and Cota v. Maxwell-Jolly)

 

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November 17, 2011 Press Release

Adult Day Health Care Settlement:  New Program for People at Risk of Institutionalization, December 1 Elimination Date Postponed

Oakland, CA:  Today, seven plaintiffs who represent a class of 35,000 low-income people with disabilities, including older adults, and the California Department of Health Care Services (DHCS) reached a settlement in a federal lawsuit that challenged the State’s planned elimination of Adult Day Health Care (ADHC) as a Medi-Cal benefit on December 1, 2011 (Darling et al. v Douglas C:09-03798 SBA ). The settlement ensures that even in these challenging economic times, critical community based services will be preserved and low income seniors and people with disabilities will avoid unnecessary hospitalization or institutionalization.

After extensive negotiations, the Parties reached a compromise which preserves ADHC-like services for people who are at risk of institutionalization, in a new program called Community-Based Adult Services (CBAS).  Similar to ADHC, CBAS will offer center-based skilled health and nursing care, therapies, transportation and other services, to eligible low income seniors and people with disabilities.  Under the settlement, the planned December 1, 2011 ADHC elimination date will be moved to February 29, 2012 to ensure a seamless transition for eligible ADHC participants to the CBAS program, and provide time for the Court to review the settlement and give final approval of the Agreement.

“There are a lot of people who really need this program; I have fought to stay out of a nursing home and have been able to with ADHC,” said Esther Darling, lead plaintiff in the case, age 74, who lives alone with the help of ADHC, and will transition to the CBAS program.  Under the terms of the settlement, CBAS will be offered through Medi-Cal managed care plans in most parts of the State. CBAS will be part of the State’s 1115 Medicaid waiver, and will not cap enrollment, ensuring that all eligible beneficiaries are able to receive these vital services.  Current ADHC recipients who are not eligible for CBAS will receive enhanced case management to assist them to transition smoothly to other long-term care services in the community.  Many of the current ADHC providers will be able to provide CBAS services, thus ensuring continuity of care. 

Elissa Gershon, Senior Attorney for Disability Rights California, commented, “this settlement preserves the rights of plaintiffs and class members under the Americans with Disabilities Act (ADA) to continue to live in their own homes and communities, and receive the healthcare services and supports needed to remain independent.  We are pleased that we were able to work with the state to maintain critical benefits for some of California’s most vulnerable citizens.   Morrison & Foerster partner Ken Kuwayti noted, "This is a victory for recipients of the ADHC program and taxpayers.  Through this settlement, California remains in step with nearly every other state in the country, which offer this type of program because it is uniquely beneficial and cost-effective, providing a bundle of healthcare services in a supportive, community environment."

The settlement resolves the entire Darling v. Douglas lawsuit, which was filed over two years ago. Plaintiffs have argued that elimination of ADHC, without adequate and appropriate replacement services, would violate the ADA and other laws, by placing tens of thousands of ADHC participants at risk of institutionalization, hospitalization, injury or death. The Court issued two preliminary injunctions, stopping cutbacks in the ADHC program, and was set to hold a hearing on the third preliminary injunction later today.  The State’s appeal of the second preliminary injunction is pending in the Ninth U.S. Circuit Court of Appeal and will be withdrawn pursuant to the settlement.  The United States Department of Justice participated in the lawsuit, by filing an amicus (friend of the court) brief in the appeal, and filing two Statements of Interest.

Plaintiffs are represented by Disability Rights California, the National Senior Citizens Law Center, the National Health Law Program, AARP Foundation Litigation, and the firm of Morrison & Foerster LLP (pro bono counsel).

For more information, read the Summary of the Settlement Agreement.

 

Court hearing on Adult Day Health Care changed to November 15, by order of the court on November 2, 2011

Disability Rights California filed for a preliminary injunction to stop elimination of Medi-Cal funding for ADHC services, unless the State provides adequate and appropriate replacement services, believing this action would endanger the health of thousands of elderly Californians with disabilities who need these services. On July 22, Federal Judge Saundra Brown Armstrong granted the State’s request to postpone the hearing on our injunction from July 26 to November 1. Subsequently, the Court moved the hearing to November 8, 2011.

The State requested the extension after recently receiving federal assurance of Medi-Cal funds to cover the services through December 1, 2011. This means that ADHC programs can continue to serve their clients for at least another few months.

Unfortunately, the long period of uncertainty about funding has led to the closure of at least 18 ADHC programs and many Californians with disabilities have been adversely affected, as reported in newspapers around the state.

In the third round of litigation in this case challenging cutbacks to California’s Medi-Cal funded Adult Day Health Care (ADHC) program, Disability Rights California has returned to Court to challenge the State’s decision to eliminate the program entirely as a Medi-Cal benefit. On June 2, 2011, the Court granted approval for Plaintiffs to file their Second Amended Complaint, which was filed on the same day. On June 9, Plaintiffs filed their third Motion for a Preliminary Injunction, asking the Court to halt the State’s plans to eliminate the ADHC Medi-Cal program, unless and until it provides adequate and appropriate replacement services to prevent unnecessary institutionalization in violation of the Americans with Disabilities Act.

The case begain on August 18, 2009, when several elderly individuals with disabilities filed a class action lawsuit to stop devastating cuts in Adult Day Health Care services. The case was filed as Lillie Brantley et. al v. David Maxwell-Jolly but upon the passing of Mrs. Brantley, the case name was changed to Harry Cota et. al v. Maxwell-Jolly. The case name has changed again to Esther Darling v. Toby Douglas, due to the passing of Mr. Cota and Mr. Douglas’ replacement of David Maxwell-Jolly as Director of the Department of Health Care Services.

On September 10, 2009, Judge Saundra Brown Armstrong granted Plaintiffs' first Motion for a Preliminary Injunction, halting an across-the-board cut from a maximum of five to no more than three days per week, finding that the cuts would have placed Plaintiffs at risk of institutionalization and caused them irreparable harm. On February 24, 2010, the Court granted Plaintiffs' second Motion for Preliminary Injunction, which challenged restrictive new eligibility criteria, which would have permanently ended ADHC services for approximately 15,000 participants.

In its February 24 Order, the Court found that Plaintiffs were likely to prevail on their claims that the new, restrictive criteria violate the Americans with Disabilities Act, federal Medicaid law, and due process under the United States Constitution. The Court was persuaded that the balance of hardships weighed in Plaintiffs’ favor because they face the loss of services that would be critical to avoid institutionalization. The Court rejected Defendants’ argument that they are “entitled to cut services at will to accommodate the State’s budgetary constraints.” The State has appealed the February 24 injunction to the Ninth Circuit Court of Appeal. The case has been deferred pending the Ninth Circuit’s decision in the Oster v. Wagner appeal of Disability Rights California’s successful injunction stopping cuts to the IHSS program. The Cota injunction will remain in effect until the Ninth Circuit's ruling.

Filed in federal court in the Northern District of California, the case is being litigated by Disability Rights California, National Senior Citizens Law Center, the National Health Law Program, AARP Foundation Litigation and the law firm of Morrison & Foerster LLP as pro bono counsel.

 

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