Dunakin v. Quigley

99 F.Supp.3d 1297

Adam DUNAKIN, Plaintiff

v.Kevin W. QUIGLEY, et al., Defendants.

Case No. C14–0567JLR.

United States District Court, W.D. Washington, at Seattle.

Signed April 10, 2015.

Susan Linn Kas, Disability Rights Washington, Eleanor Hamburger, Sirianni Youtz Spoonemore, Seattle, WA, for Plaintiff.

Angela D. Coats McCarthy, Matthew S. King, Michelle Teed, Washington State Attorney General's Office, Olympia, WA, for Defendants.

ORDER ON MOTIONS TO DISMISS, FOR CLASS CERTIFICATION, AND FOR PARTIAL SUMMARY JUDGMENT

JAMES L. ROBART, District Judge.

I. INTRODUCTION

Plaintiff Adam Dunakin is a 34–year–old man with a developmental disability, who has lived in nursing facilities for more than eight years. (Compl. (Dkt. # 1) ¶ 5.) He alleges that Defendants Kevin W. Quigley, in his official capacity as Secretary of the Washington State Department of Social and Health Services (“DSHS”), and Dorothy F. Teeter, in her official capacity as Director of the Washington State Health Care Authority (“HCA”), have failed to provide him with screenings and evaluations, specialized services, and notice of or planning for eventual community placement as required pursuant to the Nursing Home Reform Act (“NHRA”), 42 U.S.C. § 1396r, and other laws. (See generally Compl.) He further alleges that these failures have resulted in his continued institutionalization and unnecessary isolation. (See id. ¶¶ 5, 12, 32.) He brings his complaint on behalf of himself and a putative class of other residents of privately-operated, Medicaid-certified nursing facilities in Washington State who are similarly situated. (Id. ¶¶ 14–20.)

Before the court are three motions. Mr. Dunakin brings (1) a motion for class certification (Mot. for Cert. (Dkt. # 16)) and (2) a motion for partial summary judgment (PSJ Mot. (Dkt. # 17)). Defendants bring a motion for judgment on the pleadings and partial summary judgment (Rule 12(c) Mot. (Dkt. # 24)). The court has reviewed the parties' motions, all submissions filed in support of and opposition thereto, the balance of the record, and the applicable law. Being fully advised,¹ the court GRANTS Mr. Dunakin's motions for class certification and partial summary judgment and GRANTS in part and DENIES in part Defendants' motion for dismissal on the pleadings and partial summary judgment. However, with respect to the one portion of Defendants' motion to dismiss that the court grants, the court also grants Mr. Dunakin leave to amend his complaint.

II. BACKGROUND

A. Procedural History

Mr. Dunakin filed his complaint on April 16, 2014. (See generally Compl.) The complaint enumerates six claims for relief. (See generally id. ) Mr. Dunakin's first claim is based on Defendants' alleged violations of certain provisions of the NHRA. (Id. ¶¶ 33–34.) His second and third claims are based on alleged violations of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a). (Compl. ¶¶ 35–42.) His fourth claim alleges violations of certain provisions of Title XIX of the Social Security Act, 42 U.S.C. §§ 1396a(a)(8), 1396a(a)(10)(B)(i), 1396n(c)(2)(B). (Compl. ¶¶ 43–44.) His fifth and sixth claims seek declaratory and injunctive relief and are derivative of his first four claims. (See id. ¶¶ 45–48.) Mr. Dunakin brings these claims on behalf of himself and a putative class of similarly situated residents of privately-operated Medicaid-certified nursing facilities in Washington State who have intellectual disabilities or related conditions. (Id. ¶¶ 14–20.) Defendants filed an answer to Mr. Dunakin's complaint on May 8, 2014. (Answer (Dkt. # 8).)

Pursuant to the court's scheduling order (Sched. Ord. (Dkt. # 9)), Mr. Dunakin filed a motion for class certification on October 17, 2014 (see generally Mot. for Cert.), as well as a motion for partial summary judgment on the issue of the proper standard for PASRR screenings and evaluations (see generally PSJ Mot.). On November 10, 2014, Defendants filed a motion for dismissal on the pleadings of all of Mr. Dunakin's claims and for partial summary judgment on two portions of his fourth claim under Title XIX of the Social Security Act. (See generally Rule 12(c) Mot.)

B. The PASRR Process

In 1987, Congress passed the NHRA to end the practice of inappropriately placing individuals with intellectual disabilities and related conditions in nursing facilities without providing services for their unique needs. See Rolland v. Romney, 318 F.3d 42, 46 (1st Cir.2003). As directed by the NHRA, the Center for Medicaid and Medicare Services (“CMS”) issued regulations to screen and assess individuals with intellectual disabilities and related conditions seeking admission to or residing in Medicaid-certified nursing facilities, including privately-operated nursing facilities. See Rolland v. Cellucci, 52 F.Supp.2d 231, 235 (D.Mass.1999) ; 42 C.F.R. § 483.100 et seq. This screening and assessment process is known as the Pre–Admission Screening and Resident Review (“PASRR”) process. 42 U.S.C. § 1396r(e)(7)(A). Under the PASRR process, Medicaid recipients with intellectual disabilities and related conditions who are in or seek admission to nursing facilities must be screened and evaluated to determine whether they could be served in a community setting and require specialized services related to training, therapies, or other means of accomplishing improved functioning. See Romney, 318 F.3d at 46.

The NHRA requires that states accepting federal Medicaid funds have a screening plan, specifically a PASRR plan, to ensure that decisions to place individuals in nursing facilities are made appropriately. 42 U.S.C. § 1396r(e)(7)(A)(i) ; 42 C.F.R. § 483.104. The federal regulations developed under the NHRA require two levels of PASRR evaluations. Level I of the PASRR process requires that the State “identify all individuals who are suspected of having [an intellectual disability]” and who are being referred to a nursing home. 42 C.F.R. § 483.128(a). PASRR “Level II is the function of evaluating and determining whether [nursing facility] services and specialized services are needed.” Id.

Within DSHS, the Developmental Disabilities Administration (“DDA”) has responsibility for Washington State's PASRR program. See 42 C.F.R. § 483.100 (“The requirements of 42 C.F.R. §§ 483.100 through 483.138 governing the State's responsibility for ... PASRR ... of individuals with ... intellectual disability are based on section 1919(e)(7) of the Act”); (Hehemann Decl. (Dkt. # 28) ¶¶ 3–4.) DDA also provides services to individuals with developmental disabilities under state law. See RCW ch. 71A. The PASRR process and the process for determining whether an individual is eligible for state services from the DDA are separate processes, although both programs are administered through DDA. (See Manion Decl. (Dkt. # 27) ¶ 4.) In Washington, HCA is the designated “single state agency” for Medicaid purposes, and provides oversight of certain DSHS and DDA programs and functions. See RCW 74.04.050.

On September 25, 2014, DSHS described the PASRR process as it relates to individuals with intellectual disabilities or related conditions in guidance it issued to all Washington nursing facilities as follows:

PASRR is a long-standing federal requirement (42 CFR § [sic] 483.100–138) to ensure that individuals with ... intellectual disabilities or related conditions (ID/RC) are not inappropriately placed in nursing facilities for long term care. PASRR requires that all applicants to a Medicaid-certified nursing facility:

1) Be evaluated for ... ID/RC;

2) Be offered the most appropriate setting for their needs (in the community, a nursing facility, or acute care settings); and3) Receive the services they need in those settings.

The PASRR process begins with a Level I screening which is used to identify those who may meet the criteria to be evaluated for specialized services. The Level I screen must be performed prior to admission....

The nursing facility is responsible for ensuring that the [Level I] form is complete and accurate before admission. After admission, the NF [nursing facility] must retain the Level I form as part of the resident record. In the event the resident experiences a significant change in condition (either as a major improvement or decline in condition), or if an inaccuracy in the current Level I is discovered, the NF must complete a new PASRR Level I and make referrals to the appropriate entities if a[n] ... intellectual disability or related condition is identified or suspected ....

If ... ID/RC is identified or credibly suspected, a Level II evaluation is required to confirm that identification, determine whether the individual requires nursing facility level care, and determine whether specialized services are required. With some exceptions, the Level II evaluation must be completed prior to admission.

(Hamburger Decl. (Dkt. # 21) Ex. D at 1 (bolding in original).) Defendants also state that if, upon review of a resident's file, it becomes apparent that no Level I screening was performed, or it was done incorrectly, then the nursing facility or the PASRR assessor should complete a new PASRR Level I screening and refer the resident for a PASRR Level II assessment, if indicated. (PSJ Resp. at 4 (citing Hehemann Decl. ¶ 6); see also Hehemann Decl. ¶ 10.)

C. Recent PASRR Process Violations in Washington State

On November 13, 2013, CMS issued to DSHS and HCA a notice of multiple PASRR violations with respect to 27 residents, whom DSHS transferred in 2011 from Lakeland Village Intermediate Care Facility, a state-operated Residential Habilitation Center (“RHC”) for individuals with developmental disabilities, to the Lakeland Village nursing facility. (Kas Decl. (Dkt. # 20) ¶¶ 9–11, Ex. D.) Indeed, CMS found that DSHS had violated federal PASRR requirements thousands of times for just the 27 individuals involved in CMS's investigation. (Id. ) CMS found that the residents of Lakeland...