INTRODUCTION

1. This is a class action for declaratory and injunctive relief brought under the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act (Section 504), the Medicaid Act, the Nursing Home Reform Act, and 42 U.S.C. § 1983. Plaintiffs seek to prevent defendants from continuing their discriminatory and unlawful policies and practices resulting in class members' unnecessary isolation in nursing homes and preventing their access to community-based long-term care. Plaintiffs seek relief that will compel defendants to formulate and implement a comprehensive plan so that home and community-based options are available. Such a plan would ensure that all class members are assessed for, informed of and given the choice to receive long-term care services at home or in the community.
2. Individual plaintiffs and the class they represent are people with disabilities who need long-term care services, many of whom are also elderly. Plaintiff Independent Living Resources Center of San Francisco is a nonprofit service and advocacy organization for San Franciscans with disabilities. Federal law requires that individual and class plaintiffs have a right to receive long-term care services in the most integrated setting appropriate to their individual needs; and that they not be unnecessarily segregated and isolated in nursing homes, but rather that they receive needed services in a manner that will enable them to remain in or return to their home communities if they so choose. This right has recently been affirmed by the United States Supreme Court in Olmstead v. L. C., 527 U.S. 581, 119, S.Ct. 2176, 144 L.Ed. 2d 540 (1999).
3. To prevent unnecessary institutionalization in nursing homes and offer people with disabilities meaningful opportunities to choose home and community-based services, the Medicaid Act and the Nursing Home Reform Act require responsible state and local government agencies to inform people of the availability of services in non-institutional settings, and to do timely and comprehensive assessments and reviews to identify the care and services needed to enable disabled individuals to remain in or return to the community whenever feasible. Such services must be provided with reasonable promptness.
4. By failing to carry out the requirements of federal law, State and local government agencies, and state officials named as defendants in this action, are discriminating against and otherwise violating the rights of people with disabilities who are currently institutionalized at, or who are at risk of being institutionalized at, Laguna Honda Hospital and Rehabilitation Center. Indeed, defendants have failed to properly assess Laguna Honda residents and prospective residents. Defendants have failed to adequately identify the long-term care needs of plaintiffs and determine whether those needs could be appropriately met in integrated, community-based settings. Likewise, defendants have failed to inform these individuals of the availability of alternatives to nursing home care and so have denied them the right to choose home and community-based services instead of institutional care. Defendants have failed to utilize existing long-term care options and have failed to devise or implement plans to develop non-institutional alternatives for long-term care. By giving preference to institutional care, including but not limited to rebuilding Laguna Honda, rather than designating funds to develop community-based, affordable housing alternatives, defendants have deprived plaintiffs and their class of alternatives to institutional care mandated by law and have unnecessarily isolated plaintiffs and their class into a segregated, custodial setting, thus promoting dependence and depriving them of ties to family and community they would have in a community-based care setting.

   JURISDICTION

5. This action is brought pursuant to Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12132-12133 in that defendants are public entities subject to Title II, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, in that defendants are recipients of federal funds.
6. This Court has jurisdiction to decide plaintiffs' claims pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3). This Court also has jurisdiction over plaintiffs' action for declarïatory relief pursuant to 28 U.S.C. § 2201 and Rule 57 of the Federal Rules of Civil Procedure. Injunctive relief is authorized by 28 U.S.C. § 2202, 42 U.S.C. § 1983 and Rule 65 of the Federal Rules of Civil Procedure. The Court has supplemental jurisdiction over plaintiffs' state claim pursuant to 28 U.S.C. § 1367.
7. Venue is proper in this court in that defendants named herein reside in, maintain an office in, and/or enforce the laws relevant to this litigation in the Northern District of California.

   PARTIES

   Individual Plaintiffs

   Charles Davis

8. Most Laguna Honda residents live on large, open wards housing up to 37 residents. These wards lack privacy, decency, and a home-like environment and contain beds in close proximity separated only by hospital curtains.
9. Plaintiff Charles Davis is a 49-year-old man who has resided at Laguna Honda Hospital and Rehabilitation Center (Laguna Honda) since January, 1999. Mr. Davis is able to manage his own money and use public transportation. His disability is quadriplegia secondary to a C-spine epidural abscess. Mr. Davis uses a power wheelchair to assist with mobility. Because of his disability, he is eligible for Supplemental Security Income (SSI) and Medi-Cal, which provide payment toward his care at Laguna Honda.
10. Mr. Davis was admitted to Laguna Honda from San Francisco General Hospital (SFGH) after surgery. Both before and at the time of admission, Mr. Davis did not receive a comprehensive evaluation and was not informed about alternative community-based programs and services. Assessments of Mr. Davis from the time of his admission to Laguna Honda to the present found him to have a high potential for rehabilitation. However, Mr. Davis feels that certain needed rehabilitation services, including physical therapy, were prematurely discontinued during his stay at Laguna Honda.
11. Mr. Davis wants to move out of Laguna Honda and into the community. Mr. Davis' discharge assessment recommends that he receive disabled housing, meals, transportation, substance abuse services and part-time attendant care. However, such services have not been offered or provided to him and he was not even referred for wheelchair accessible housing until February, 2000. At this time, Mr. Davis is on a wait list through the San Francisco Housing Authority.

    Jackie Del Rosario

12. Jackie Del Rosario is a 63-year-old woman who has resided at Laguna Honda since 1992. Ms. Del Rosario appears in this action through her daughter and guardian ad litem, Le Anne Bishop. Ms. Del Rosario is able to read, write and manage her own money and maintains close ties to her family. Her disabilities include hypertension, obesity and depression. Ms. Del Rosario uses a wheelchair to assist with mobility. Because of her disability, she is eligible for SSI and Medi-Cal, which provide payment toward her care at Laguna Honda.
13. Ms. Del Rosario was admitted to Laguna Honda after treatment for a stroke at St. Lukes Hospital in San Francisco, California. Before and at the time of admission, Ms. Del Rosario did not receive information or a comprehensive evaluation about alternative community programs and services, although she made it clear that she wanted to return to her own apartment. Ms. Del Rosario has consistently expressed a desire to live independently throughout her stay at Laguna Honda.
14. In a 1993 discharge planning assessment, it was found that Ms. Del Rosario would be able to return to her apartment with certain minor housing modifications, such as hand rails and personal care assistance. However, no effort was made to look beyond informal family support for these services. Discharge planning assessments conducted by Laguna Honda staff, including a recent assessment dated November 29, 1999, indicate that Ms. Del Rosario is medically stable, desires discharge and that she could leave Laguna Honda if provided with meals, transportation, adult day care, case management, medication management, part-time attendant care and housing, including a board and care home for people who are non-ambulatory. To date, no such services have been offered to her.
15. All of the supports Ms. Del Rosario needs to live outside the facility are available through Medi-Cal and other community programs. Ms. Del Rosario could leave Laguna Honda today if appropriate community supports were provided to her.

    Jessie Fitchett

16. Plaintiff Jessie Fitchett is a 68-year-old man who was admitted to Laguna Honda in 1996. He is able to use public transportation and manage his own money. He has physical disabilities associated with a stroke and uses a wheelchair to assist with mobility. He has a history of depression. Because of his disabilities, he is eligible for SSI and Medi-Cal, which provide payment toward his care at Laguna Honda.
17. Mr. Fitchett was admitted to Laguna Honda for short-term rehabilitation. Before and at the time of admission, Mr. Fitchett did not receive information or a comprehensive evaluation about alternative community programs and services.
18. Mr. Fitchett desires to leave Laguna Honda and live in the community where he can be more active and interact with friends. At Laguna Honda, he receives no rehabilitation and spends most of the time sitting in his wheelchair and watching television.
19. In 1998, a facility assessment found that Mr. Fitchett's needs could be met in the community with appropriate home and community-based services. Staff identified resources such as a meal program, transportation, rehabilitation, adult day care, substance abuse services, case management, and part-time attendant care that could support Mr. Fitchett outside of the facility. To date, no such services have not been offered or provided to him.
20. All of the supports Mr. Fitchett needs to live outside the facility are available through Medi-Cal and other community programs. Mr. Fitchett is eager to move and could leave Laguna Honda today if appropriate community supports were provided to him.

    Harry Prieto

21. Plaintiff Harry Prieto is a 47-year-old man who has resided at Laguna Honda since 1993. Mr. Prieto is able to manage his own finances and affairs. His disabilities include left hemiparesis, diabetes and renal disease. He uses a wheelchair to assist with mobility. Because of his disabilities, he is eligible for SSI and Medi-Cal, which provide payment toward his care at Laguna Honda.
22. Mr. Prieto was admitted to Laguna Honda after treatment at Highland Hospital in Oakland, California. Both before and at the time of admission, Mr. Prieto did not receive information about alternative community-based programs and services.
23. In July 1998, Mr. Prieto was evaluated by the Laguna Honda Level of Care Task Force. The Task Force found that it would be appropriate for him to live in "disabled housing" and receive an array of supportive services. Nonetheless, almost two years later, Mr. Prieto continues to reside at Laguna Honda. A subsequent assessment dated January 10, 2000, recommends that Mr. Prieto remain at Laguna Honda even though it finds that Mr. Prieto could live in community-based housing with appropriate supportive services. To date, appropriate community housing and supportive services have not been offered or provided to Mr. Prieto.
24. All of the support services identified in the 1998 and subsequent assessments are available through Medi-Cal and other community programs for which Mr. Prieto is eligible. Mr. Prieto desires to and could leave Laguna Honda today if appropriate services and programs were provided to him.

    Lorraine Robles

25. Plaintiff Lorraine Robles is a 53-year-old woman who has resided at Laguna Honda Hospital since May 19, 2000. Ms. Robles is able to read, write and manage her own money. Her disabilities include depression, diabetes, hypertension, multiple orthopedic conditions and muscular dystrophy. Ms. Robles uses an electric wheelchair to assist with mobility. Because of her disability, she is eligible for SSI and Medi-Cal, which provide payment toward her care at Laguna Honda.
26. Ms. Robles was admitted to Laguna Honda after treatment at SFGH where she was stabilized on new medications for her psychiatric condition. Ms. Robles was transferred to Laguna Honda for long-term care. Upon admission, Laguna Honda staff determined her rehabilitation potential to be fairly good.
27. Before and at the time of admission to Laguna Honda, Ms. Robles did not receive information or a comprehensive evaluation about alternative community programs and services.
28. Ms. Robles wants to move out of Laguna Honda and live in the community. Laguna Honda staff have identified the services and care needed to support Ms. Robles outside the institution, including disabled housing, community mental health services, and part-time attendant care. To date, no such services have been offered to her.
29. All of the supports Ms. Robles needs to live outside the facility are available through Medi-Cal and other community programs. Ms. Robles could leave Laguna Honda today if appropriate community supports were provided to her.

    Henry Rojas

30. Plaintiff Henry Rojas is 45-years-old and has physical disabilities related to diabetes and renal disease. He has close ties to his family and is able to feed himself and use his wheelchair independently. He has had an above-knee amputation of the left leg and a below-knee amputation of the right leg and uses a wheelchair to assist with mobility. Because of his disabilities, he is eligible for SSI and Medi-Cal, which provide payment toward his care at Laguna Honda.
31. Mr. Rojas has had multiple admissions to Laguna Honda since 1991. On each occasion that he has been discharged, he has received inadequate home and community care for his diabetes. Both before admission to and upon discharge from Laguna Honda, Mr. Rojas has not received information or a comprehensive evaluation about alternative programs and services to support him in the community. He has resided at Laguna Honda nearly continuously since October 1995.
32. Mr. Rojas wants to move out of Laguna Honda and live in the community. Laguna Honda staff have not discussed home and community-based alternatives with him. Laguna Honda staff have identified the services and care needed to support Mr. Rojas outside the institution, including meals, nursing care, transportation, substance abuse services, case management, medication, housing and 24-hour attendant care; however, but Laguna Honda has failed to take any steps to secure those services for him and has instead recommended that he remain at Laguna Honda.
33. All of the supports Mr. Rojas needs to live outside Laguna Honda are available through Medi-Cal and other community programs. Mr. Rojas could leave Laguna Honda today if appropriate community supports were provided to him.

    Gerald Scott

34. Plaintiff Gerald Scott is a 46-year-old man who has resided at Laguna Honda since 1979. Mr. Scott is able to manage his own finances and affairs. His disabilities are the result of a physical assault and include spastic quadriplegia, with paralysis and atrophy on the right side and a seizure disorder. He uses an electric wheelchair to assist with mobility. Because of his disabilities, he is eligible for SSI and Medi-Cal, which provide payment toward his care at Laguna Honda.
35. Mr. Scott was admitted to Laguna Honda after surgery and treatment for an injury at SFGH over twenty 20 years ago. In April 1999, a facility psychiatrist at Laguna Honda found that Mr. Scott could live in the community with specified supports, including in-home supportive services. Discharge assessments indicate that Mr. Scott could live in assisted housing with 24-hour attendant care and other supportive services. But to date, none of these services have been offered or provided to Mr. Scott.
36. Mr. Scott believes that Laguna Honda staff treats him in a manner that thwarts his dignity and self-determination. In the fall of 1999, the staff wrote a behavior plan specifying that his wheelchair could be taken away as a consequence for behavior totally unrelated to use of the wheelchair, thereby depriving him of all mobility.
37. All of the support services identified by Laguna Honda staff are available to Mr. Scott through Medi-Cal and other community programs. Mr. Scott desires to leave Laguna Honda and would do so immediately if appropriate services were available to him.

    Hong T.

38. Plaintiff Hong T. is a 36-year-old woman who has resided at Laguna Honda since 1995 and whose primary language is Laotian. She is able to eat independently and enjoys Asian foods. Her disabilities include schizoaffective disorder, severe psoriasis, arthritis, and lower extremity contractions. She uses a manual wheelchair to assist with mobility. Because of her disability, she is eligible for SSI and Medi-Cal, which provide payment toward her care at Laguna Honda.
39. Hong T. was admitted to Laguna Honda from SFGH after surgery. Before and at the time of admission, Hong T. did not receive information or a comprehensive evaluation about alternative community programs and services. Despite her limited English and documented need for an interpreter, a Laotian interpreter or Laotian-speaking staff is rarely, if ever, provided or used in conducting required assessments. Likewise, it does not appear Laotian speaking staff or an interpreter are regularly used in conducting required assessments.
40. Hong T. wants to move into a small group home where she will be able to have friends and be part of the community. Laguna Honda staff assessments recommend that Hong T. could be discharged to the community to a structured environment, including a wheelchair accessible board and care home, with nursing, psychiatric care, medication and case management. To date, no such services have been offered to her.
41. Hong T. is eligible for a variety of programs and services through Medi-Cal and other community programs that would enable her to leave Laguna Honda. Hong T. desires to and could leave Laguna Honda today if appropriate programs and supports were provided to her.

    M. W.

42. Plaintiff M.W. is a 35-year-old man who has resided at Laguna Honda Hospital since May 1996. His disabilities include AIDS and AIDS-related syndromes. M.W. uses an electric wheelchair to assist with mobility and uses public transportation independently. Because of his disabilities, M.W. is eligible for SSI and Medi-Cal, which provide payment toward his at Laguna Honda.
43. M.W. was admitted to Laguna Honda Hospital from SFGH following medical treatment related to his AIDS condition. Both before and at the time of admission, M.W. did not receive information or a comprehensive evaluation about alternative community programs and services.
44. M.W. wants to move out of Laguna Honda Hospital. Discharge assessments conducted by Laguna Honda staff, including the most recent dated January 20, 2000 and May 2, 2000 indicate that M.W. requires skilled nursing facility/long-term care but fail to provide information or assessment regarding community-based alternatives, including waiver services.
45. M.W. is eager to move into the community and yet he has not received a comprehensive assessment of the services he needs to live at home or in the community.

    Kay Yamamoto

46. Plaintiff Kay Yamamoto is a 47-year-old woman who has resided at Laguna Honda since January, 1998. Her disabilities include cerebral palsy and intermittent depression. Ms. Yamamoto uses an electric wheelchair to assist with mobility. Because of her disability, she is eligible for SSI and Medi-Cal, which provide payment toward her care at Laguna Honda.
47. Ms. Yamamoto was admitted to Laguna Honda from California Pacific Medical Center and subsequently SFGH after surgery and other medical treatment. Both before and at the time of admission, Ms. Yamamoto did not receive information or a comprehensive evaluation about alternative community programs and services.
48. In February 1998, the Department of Developmental Services conducted a comprehensive assessment and accepted Ms. Yamamoto as a client because of her developmental disability. The assessment determined that she could live in her own apartment with services through a supported living agency. In July 1998, the Laguna Honda Level of Care Task Force team evaluation also recommended that she be placed in her own apartment in the community.
49. Despite these recommendations Ms. Yamamoto continues to reside at Laguna Honda. In 1999, Ms. Yamamoto was diagnosed with a terminal cancer condition. Since that time, no efforts to discharge her have occurred. Nevertheless, Ms. Yamamoto still desires discharge and could leave Laguna Honda today if appropriate supports were provided to her.
50. All of the support services Ms. Yamamoto needs to live at home, such as assistance with activities of daily living, in-home support services, and/or 24-hour attendant care, home modification and assistance with medications are available through Medi-Cal and other community programs. Ms. Yamamoto is eager to move and could leave Laguna Honda today if appropriate support services were provided to her.

    Organizational Plaintiff

51. The Independent Living Resources Center San Francisco (ILRCSF) is a non-profit organization providing a range of services and programs for San Franciscans with disabilities, including class members. The ILRCSF's mission is to empower people with disabilities to achieve full economic and social participation in the mainstream of society and to promote opportunities for independence, self-direction and freedom of choice. Defendants' actions and failures to act impede ILRCSF's ability to carry out its mission and assist people with disabilities and members of the proposed plaintiff class in accessing services to support independent living choice. The ILRCSF receives federal and state funding and must file annual reports with the federal Rehabilitation Services Administration concerning the number of persons assisted by ILRCSF in moving into more integrated community settings and such information is used as the basis for determining the level of funding ILRCSF receives. Defendants' actions compromise ILRCSF's ability to fulfill its federal responsibilities and jeopardize its funding. The ILRCSF has had to divert scarce resources from its usual education, advocacy, counseling and referral services to LHH residents and investigation of defendants' actions and inactions and efforts to counteract them.

    Defendants

52. Defendant California Health and Human Services Agency (CHHS) is the state agency which oversees the administration of the Department of Health Services, the Department of Social Services, the Department of Mental Health, the Department of Aging, and the Department of Developmental Services. Together these entities are responsible for the direction and administration of long-term care services, both institutional and community-based, for Californians with disabilities and/or who are elderly. Each defendant is liable in some way for the statutory violations and other wrongs alleged herein.
53. Defendant City and County of San Francisco (San Francisco) is the entity responsible for administration of the Medi-Cal program in the City and County of San Francisco. San Francisco operates Laguna Honda and San Francisco General Hospital and is responsible for implementing long-term care services for San Francisco residents through its Department of Public Health, Department of Human Services, Commission on Aging, and Mayor's Office on Housing.
54. Defendant Grantland Johnson is Secretary of the CHHS Agency and is responsible for the direction, supervision and control of that agency and the departments within and under the control of that agency. He is sued in his official capacity.
55. Defendant California Department of Health Services (DHS) is an agency within the CHHS Agency and is the single state agency responsible for administration of all aspects of the Medicaid program, entitled, "Medi-Cal" in California. Defendant DHS is sued only under the Second Claim for Relief (Section 504 of the Rehabilitation Act).
56. Defendant Diana Bonta is the Director of the DHS and is responsible for the direction, supervision and control of that department. She is sued in her official capacity.
57. Defendant California Department of Social Services (DSS) is the agency within CHHS responsible for administering various social services programs, including the In-Home Supportive Services-Personal Care Services Program, which is funded, in part, through the federal Medicaid program. Defendant DSS is sued only under the Second Claim for Relief (Section 504 of the Rehabilitation Act).
58. Defendant Rita Saenz is the Director of the DSS and is responsible for the direction, supervision and control of that department. She is sued in her official capacity.
59. Defendant California Department of Mental Health (DMH) is the agency within the CHHS Agency responsible for Pre-Admission Screening and Resident Review process ("PASARR") determinations for persons with mental illnesses in Medicaid certified nursing homes. DMH administers the provisions of state law which provide for the rendering of mental health services in community settings throughout California. Pursuant to an interagency agreement with DHS which is incorporated in California's state Medicaid plan, DMH is responsible for ensuring that state mandated community mental health services and federally funded Medi-Cal mental health services are available to eligible Medi-Cal beneficiaries in need of such services. Defendant DMH is sued only under the Second Claim for Relief (Section 504 of the Rehabilitation Act).
60. Defendant Stephen Mayberg is the Director of the DMH and is responsible for the direction, supervision and control of that department. He is sued in his official capacity.
61. Defendant California Department of Aging (DOA) is the agency within the CHHS Agency responsible for providing leadership to local area agencies on aging in developing systems of home and community-based services that maintain elderly individuals in their own homes or least restrictive homelike environments. The DOA, in cooperation with local area agencies on aging, is responsible for administering a wide range of long-term care services and special projects, including the Multipurpose Senior Services (MSSP) program, Adult Day Health Care, and various other community-based services–federally funded, in part, through the Medicaid program and the Older Americans Act. Defendant DOA is sued only under the Second Claim for Relief (Section 504 of the Rehabilitation Act).
62. Defendant Lynda Terry is the Director of the DOA and is responsible for the direction, supervision and control of that department. She is sued in her official capacity.
63. Defendant California Department of Developmental Services (DDS) is the state agency responsible for Preadmission Screening and Annual Resident Review determinations for persons with developmental disabilities in Medicaid certified nursing homes. DDS administers the provisions of Cal. Welf. & Inst. Code §§ 4500 et seq. which provide for the rendering of regional center services for people with developmental disabilities throughout California. Pursuant to an interagency agreement with DHS which is incorporated in California's state Medicaid plan, DDS is responsible for ensuring that Medi-Cal services are available to eligible Medi-Cal beneficiaries with developmental disabilities in need of such services.
64. Defendant Clifford Allenby is the Director of the California Department of Developmental Services (DDS) and is responsible for the direction, supervision, and control of that department. He is sued in his official capacity.

    CLASS ACTION ALLEGATIONS

65. Pursuant to Rules 23(a)(1)-(4) and (b)(2) of the Federal Rules of Civil Procedure, plaintiffs bring this class action on behalf of all persons with disabilities who are or will be unnecessarily placed at Laguna Honda, and all persons with disabilities who are or will be at risk of being unnecessarily placed at Laguna Honda, because of defendants' failure to do any or a combination of the following:

• Conduct adequate, timely and comprehensive assessments of class members necessary to identify the services for which class members are eligible and that could meet their needs in more integrated settings;
• Inform class members of their right to choose home or community-based services; and/or
• Apply for or allocate available and adequate funding for, or otherwise provide home and community-based services for which class members are eligible in a timely manner.

1. There are over 1,100 residents at Laguna Honda most if not all of whom are persons with disabilities and approximately 95% of whom are eligible for Medicaid. A substantial proportion of those residents, plus hundreds more individuals with disabilities who are at risk of being placed at Laguna Honda, have needs which could appropriately be met in more integrated, community-based settings. The size of the class is so numerous that joinder of all members is impracticable. Joinder is also impracticable because the plaintiff class lacks the knowledge and financial means to maintain individual actions and because the class includes future Laguna Honda residents whose identities are unknowable.
2. There are questions of law and fact common to the class and the claims of the plaintiffs are typical of the claims of the class. These questions include:

1. Whether defendants violate the integration mandate of the ADA and Section 504 by requiring plaintiffs to be segregated and confined unnecessarily in institutional settings in order to receive long-term services, rather than providing those services in appropriate, integrated settings in plaintiffs' homes and communities.
2. Whether defendants fail to conduct comprehensive, and appropriate assessments–including assessments required under the Nursing Home Reform Act and federal Medicaid law–to determine the need for institutionalization of persons at risk of institutionalization or the discharge potential of persons residing in institutional settings, such as Laguna Honda, by identifying those services and supports for which such individuals are eligible and which they need to live in more integrated, community-based settings.
3. Whether defendants fail to effectively communicate information concerning alternatives to nursing facility care to persons at risk of placement into institutions, such as Laguna Honda, to residents of such institutions, or to their legal representatives, family members, and substitute decision-makers, as required, for example, by the Nursing Home Reform Act.
4. Whether defendants fail to inform institutionalized individuals or persons at risk of institutionalization of the availability of home and community-based services under federal Medicaid and waiver programs for which they are eligible and to offer individuals a choice of home and community-based services in lieu of institutional care.
5. Whether defendants fail to offer and provide with reasonable promptness Medicaid services for which residents of institutions such as Laguna Honda, or persons at risk of placement in such institutions, are eligible and which they need to live in more integrated, community-based settings.

1. The claims of the named plaintiffs–including claims that defendants have violated their rights to proper assessments and to receive appropriate, long-term care services in integrated, non-institutional settings–are typical of the class members' claims.
2. The representative plaintiffs will fairly and adequately protect the interests of the class. Plaintiffs will vigorously represent the interests of the unnamed class members and all members of the proposed class will benefit by the class proposed by the plaintiffs. The named plaintiffs have no interests which are in conflict with other class members. Plaintiffs and the class are represented by qualified and competent counsel.
3. The prosecution of separate actions by individual members of the class would create a risk of inconsistent or varying adjudications establishing incompatible rules of law for the provision of services to residents of and applicants to Laguna Honda.
4. Defendants, their agents, employees, and predecessors and successors in office have acted or will act on grounds generally applicable to the class, thereby making appropriate injunctive or declaratory relief with respect to the class as a whole.

   FEDERAL STATUTORY FRAMEWORK

   Americans with Disabilities Act and Section 504

5. On July 26, 1990, President Bush signed into law the Americans with Disabilities Act (the ADA), 42 U.S.C. § 12101 et seq., establishing the most important civil rights laws for persons with disabilities in our nation's history.
6. In enacting the ADA, Congress was particularly concerned about the unnecessary segregation and institutionalization of people with disabilities and the resulting lack of full participation in and access to community services and activities. 42 U.S.C. § 12101(a)(2), (a)(5), (a)(8).
7. Title II of the ADA prohibits public entities, such as defendants, from discriminating against the individuals with disabilities that they serve. 42 U.S.C. §§ 12131-32. Discrimination under the ADA includes the segregation of persons with disabilities from society as a result of unnecessary institutionalization.
8. The regulations promulgated under Title II specifically provide that "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). The regulations also specify a variety of requirements to ensure nondiscrimination, including the provision of access, modification of practices and policies, and the provision of auxiliary aides and services. The regulations prohibit the defendants from administering programs in a discriminatory manner. 28 C.F.R. Part 35.
9. Section 504, on which the ADA is modeled, sets forth similar protections against discrimination by recipients of federal funds, such as the City and State defendants herein, including prohibiting unnecessary segregation. 29 U.S.C. § 794 et seq.

   The Medicaid Act

10. Medicaid is a joint state and federally funded program whose purpose is to provide medical services to low-income persons pursuant to Title XIX of the Social Security Act, and to provide rehabilitation and other services to help them attain or retain capability for independence or self care. 42 U.S.C. §§ 1396 et seq.
11. States that choose to participate in the Medicaid program receive federal matching funds for their Medicaid program. To receive federal funds, states must comply with the requirements of the federal Medicaid Act and with the federal regulations governing state Medicaid programs promulgated by the U.S. Department of Health and Human Services (HHS). 42 U.S.C. § 1396 et seq., 42 C.F.R. § 430 et seq.
12. As a condition of participating in the federal Medicaid program, states must submit to HHS a state Medicaid plan that fulfills the requirements of the Medicaid Act and includes certain mandatory as well as optional Medicaid services. 42 U.S.C. §§ 1396a(a) and d(a). Nursing facility services are mandatory. 42 U.S.C. §§ 1396a(a)(10)(A); 1396d(a)(4)(A). The state plan must also provide for home health services for any individual who is entitled to nursing facility services. 42 U.S.C. § 1396a(a)(10)(D). The state may opt to provide additional services to eligible individuals which include, in relevant part: home health care services; private duty nursing services; community supported living arrangements; home and community care for functionally disabled elderly individuals; personal care services; and any medical and remedial care recognized under state law. 42 U.S.C. § 1396d(a). Once a state elects to provide any optional services, these services become part of the state Medicaid plan and are subject to the requirements of federal Medicaid law. 42 U.S.C. § 1396a(a)(1). Medicaid services shall be furnished with reasonable promptness to all eligible individuals. 42 U.S.C. § 1396a(a)(8); 42 C.F.R. § 435.930(a).
13. Federal law allows states to waive certain Medicaid requirements in order to enable people with disabilities to avoid institutionalization and receive Medicaid services in the community. 42 U.S.C. § 1396n(c). California currently operates six such programs, known as "Medicaid home and community-based waivers" or "waivers," a summary of the waiver options are set forth below. Cal. Code Regs. tit. 22 § 51176.

    The Nursing Home Reform Act

14. The Nursing Home Reform Act of 1987 (NHRA) requires that each resident of a nursing facility, upon admission and periodically thereafter, be provided with a comprehensive assessment of his/her functional capacity, including potential for discharge to the community. The assessment must involve the resident in the process and be updated on a quarterly basis. 42 U.S.C. § 1396r; 42 C.F.R. § 483.20.
15. The NHRA requires involvement of the resident, his/her legal representative and family in the process. The NHRA gives residents the right to self-determination and communication with staff about health care decisions. Residents have a right to be fully informed of their "total health status" in a language they understand. 42 C.F.R. § 483.10. Where individuals are unable to participate due to the nature of their disabilities, they have the right to have decisions made by their conservators or other surrogate decision-makers. 42 C.F.R. § 483.10(a)(3) and (4).
16. The NHRA addresses the problem of unnecessary placement or warehousing of people with psychiatric and developmental disabilities in nursing homes. To this end, special preadmission screening and resident reviews are required for all individuals believed to have a psychiatric or developmental disability to determine whether nursing facility level of care is needed, and whether those services should be provided in the community. 42 U.S.C. §§ 1396r(b)(3)(F)(i), 1396r(e)(7)(A)&(B); 42 C.F.R. §§ 483.112, 483.128, 483.132, 483.134, & 483.136.
17. Residents and/or their legal representative and family members must be involved in the evaluation process. The evaluation must be adapted to the cultural and language background of the individual, and the individual must be given notice and an explanation of the results, determination and placement options. 42 C.F.R. §§ 483.128(b), (c), (k); 130(k)(l).

    CALIFORNIA PROGRAMS AND SERVICES FOR PEOPLE WITH DISABILITIES

    Medi-Cal Covered Services

18. California participates in the Medicaid program ("Medi-Cal"). Cal. Welf. & Inst. Code § 14000 et seq. Medi-Cal is administered by defendant Bonta, the Director of DHS, the state agency responsible for administering Medi-Cal mandatory, optional and waiver services. 42 U.S.C. § 1396a(a)(5); Cal. Welf. & Inst. Code § 14137; 22 Cal. Code Regs. § 50004. In addition to the services mandated by the federal Medicaid Act, California's Medi-Cal program has committed itself to provide a broad range of optional services which are supposed to be available to persons with disabilities in the community. These services include but are not limited to:

1. Home Health Agency Services are available for individuals living at home and include skilled nursing care, medical social services, medical supplies and equipment, therapy, and home health aide services. Cal Code Regs. tit. 22 § 51337.
2. The In-Home Supportive Services-Personal Care Services Program (IHSS/IHSS-PCSP) provides attendant care to eligible individuals with disabilities who are unable to remain safely in their own homes without such assistance.
3. Rehabilitative Mental Health Services, are to be provided in the least restrictive setting that is appropriate for reduction of psychiatric impairment, restoration of functioning consistent with the requirements for learning, development, and/or independent living and enhanced self-sufficiency. Welf. & Inst. Code § 14021(e); Cal. Code Regs. tit. 9 § 1810.201-254.
4. Targeted Case Management Services (TCMS) are available to individuals with psychiatric disabilities who are at risk of institutionalization or homelessness. Welf. & Inst. Code § 14021.3; Cal. Code Regs. tit. 9 § 1810.249. TCMS services are also available to persons who are at high risk, who have language or comprehension barriers, who lack community support, or who are in frail health and in need of assistance to gain access to services and prevent institutionalization. Cal Code Regs. tit. 22 § 51365.
5. Hospice care is provided to terminally ill individuals. The state currently provides home and community-based services under a variety of waiver programs aimed at avoiding institutionalization of eligible individuals with disabilities. Cal. Code Regs. tit. 22 § 51176(a).

1. It includes nursing, medical social work, counseling and home health aide services. Under California law, the state has an affirmative obligation to seek federal waivers of Medicaid requirements in order to provide ongoing home and community-based care. Welf. & Inst. Code § 14137. Waiver services currently available under the Medi-Cal program include:

1. Nursing Facility (NF) Waiver and Model Nursing Facility Waivers for which Medi-Cal eligible individuals qualify if they: (i) would otherwise require nursing facility level of care for at least 90 consecutive days; (ii) are over age 65 or disabled; and (iii) have a physical disability. 22 Cal. Code Regs. § 51344(c). These two waivers differ as to financial eligibility only. The NF waiver serves currently eligible Medi-Cal individuals. The Model waiver serves individuals who would be eligible for Medi-Cal upon institutionalization.
2. Multi-Purpose Senior Services (MSSP) Waiver applies to Medi-Cal eligible individuals qualify if they are over age 65 and disabled and require the level of care provided in a nursing facility. This waiver applies only in specific geographic areas including San Francisco.
3. Acquired Immune Deficiency Syndrome (AIDS) Waiver applies to categorically eligible Medi-Cal beneficiaries who (i) require either nursing facility or acute hospital services; and (ii) are disabled with a primary medical condition related to HIV or AIDS. This waiver applies only in specific geographic areas including San Francisco.
4. Department of Developmental Services (DDS) Waiver for which Medi-Cal eligible individuals who have a developmental disability may qualify if they require Intermediate Care Facility for Mental Retardation (ICF/MR) level of care. See Cal. Code Regs. tit. 22 § 51343 et seq.
5. In-Home Medical Care (IHMC) Waiver, for which Medi-Cal eligible individuals qualify if they: (i) have a physical disability; (ii) would otherwise require acute hospital level care for 90 days or more; (iii) have a chronic condition requiring long-term care; and (iv) have a medically appropriate home setting.

1. Each of the waiver programs includes some or all of the following services: case management, homemaker, home health aide, personal care, respite, habilitation (day habilitation, prevocational services, supported employment), environmental accessibility adaptions, skilled-nursing, transportation, specialized medical equipment and supplies, chore services, attendant care, personal emergency response system (PERS), family training, residential care (adult foster care, assisted living, supported living), psychiatrist services, physical therapy/occupational therapy (PT/ OT), speech, hearing and language services, psychology services, respiratory therapy services, vehicle adaptions, communication aides, crisis intervention (crisis intervention facilities, mobile crisis intervention), nutritional consultation, day treatment/partial hospitalization, behavioral intervention, and protective supervision.
2. All of the waiver programs provide for home accessibility adaptions or modifications, which are designed to ensure the health, welfare and safety of the individual or enable the individual to function with greater independence at home and avoid institutionalization and may include installation of ramps and grab bars, widening of doorways, modification of bathroom facilities or installation of specialized electric and plumbing systems.
3. Upon information and belief, all of the above waivers have available openings to serve Medi-Cal recipients or can be expanded to meet the needs of residents of institutions who are eligible for and desire home and community-based care.
4. To receive approval for such waivers, DHS must assure that individuals who are likely to require nursing facility or acute hospital level care are informed about waiver services and given the choice of receiving home and community-based services in lieu of institutional care. 42 U.S.C. § 1396n(c)(2)(C) and § 1396n(d). This choice must be offered at the initial evaluation for institutional care and at each periodic reevaluation. If an individual is denied home and community-based services, or is denied the services or provider of his/her choice, then the individual has a right to a fair hearing. Agencies are required to maintain signed documentation in the individual's records showing that she or he was informed of these choices but declined. Written notice must be provided when services are denied, reduced, or terminated. 42 C.F.R. §§ 441.302, .303, .352, .353, and 42 C.F.R § 431, subpart E.
5. Although the statewide cost of providing waiver services to individuals cannot exceed the cost of serving such individuals in institutional settings, NF, IHMC and DDS waiver services will not be refused because the costs under the waiver exceed institutional costs in a particular case.

   Community Mental Health Programs

6. Under the Bronzan-McCorquodale Act, Welf. & Inst. Code § 5600 et seq., community mental health services in counties such as San Francisco are provided to Medicaid eligible and non-Medicaid eligible individuals. The purpose of this assistance is to enable individuals to achieve personal goals and develop skills in the least restrictive setting. Welf. & Inst. Code § 5600.1. Services include those covered under the Medi-Cal program. Welf. & Inst. Code §§ 5600.4-7. A range of service alternatives is provided, Welf. & Inst. Code § 5670 et seq., including a "long-term residential treatment program," which is designed for individuals referred to and maintained in nursing homes requiring long-term, intensive support. Welf. & Inst. Code § 5671(b). An "in-home treatment program" is designed to be an alternative to placement outside of the home for individuals who are otherwise not appropriate for the community residential treatment system, or do not choose to participate in the program. Welf. & Inst. Code § 5671(h).

   Community Senior Programs

7. A variety of community programs are available for seniors in addition to those previously described. Programs administered through DHS include, for example, the Medical Case Management program, the Program of All-Inclusive Care for the Elderly (PACE), the Alzheimer's Disease Research Centers of California (ADP), the California Partnership for Long Term Care, and home health agencies. The Office of Deaf Access manages and monitors services through community Deaf Access Assistance programs. The DOA and Area Agencies on Aging maintain special projects programs, including, Adult Day Health Care (ADHC), the Linkages program, Alzheimers Day Care Resource Centers (ADCRC), the Senior Companion Program, the Health Insurance Counseling and Advocacy Program (HICAP), the Brown Bag Network Program (BBNP), the Legal Services Projects for Older Persons, and various other programs providing respite services, nutrition programs, home delivered meal services, nutrition education, congregate nutrition services, and assisted transportation services.

   San Francisco's Community Housing Programs and Services for People with Disabilities

8. San Francisco operates a number of affordable housing programs and deliver services designed to address the needs of low-income disabled residents. These include subsidized housing, rental vouchers, assistance with rehabilitation of substandard rental housing, financing for new construction of affordable housing units, emergency housing services such as shelters, and support services for people with AIDS, the elderly or individuals who are homeless or mentally ill. Funding for these programs comes from a combination of federal, state and local government sources.

   STATEMENT OF FACTS

   Failure to Provide Community-Based Long-Term Care Services

9. Surveys show that the vast majority of seniors prefer home and community-based care over nursing facilities. But, despite the above-described home and community-based programs and services, numerous seniors reside in nursing facilities or are at risk of being placed in a nursing facility, including several of the named plaintiffs and class members, despite being eligible for home and community-based programs and services described above. These individuals face the prospect of unnecessary institutionalization.
10. Both the State-level defendants and the City and County of San Francisco have failed to provide eligible individuals, including plaintiff class members, with Medi-Cal-funded and other long-term care services in an integrated, non-institutional setting. This failure results from a variety of factors, including:

1. The lack of effective management information systems and coordination among state and local agencies having responsibility for home and community-based long-term care programs.
2. The failure of state and local defendants to maintain accurate, up-to-date data on the numbers of persons needing home and community-based long-term care services, the number of people receiving such services, or the number of people served by multiple programs and/or agencies.
3. The failure of state and local defendants to maintain accurate information on waiting lists for home and community-based long-term care program and services.
4. The failure of state and local defendants to fully and effectively utilize available Medi-Cal long-term care services and waiver services for those eligible class members in need of such services.
5. The failure of state-level defendants to make information on eligibility for Medi-Cal-funded home and community-based long-term care services readily available and accessible to eligible individuals, including plaintiffs and class members.
6. The failure of state and local defendants to provide individualized assessments to nursing facility residents, and those at risk of being placed in a nursing facility, including individual plaintiffs and class members, and failure to notify such individuals of their right to home and community-based, long-term care services.
7. The failure of state and local defendants to apply for (or expand) home and community-based Medicaid waivers sufficient to meet the need for such services by eligible individuals throughout the State, including plaintiffs and class members.

1. Waiver programs available to San Francisco are capped to a limited number of slots which are wholly insufficient to meet class members needs, to wit:

1. The Multi-Purpose Senior Services (MSSP) waiver is capped at 400 slots city wide and operates at or near capacity;
2. The Nursing Facility waiver is capped at 491 slots statewide and is full in San Francisco, where it serves a total of three residents; and
3. The AIDS waiver has a capacity of 3,400 statewide, but there are only a smaller number of slots available to San Francisco and all are currently taken.

1. State and local defendants disproportionately allocate and expend funds available for long-term care services on institutional, nursing facility care rather than home and community-based care.

   San Francisco's Long-term Care Pilot Program Task Force

2. In 1995, the California Legislature established the Long-term Care Integration Pilot Program to address the obvious disarray in providing long-term care services and the failure to address the specific concerns of individual consumers. Cal. Welf. & Inst. Code § 14139.05 et seq. This program is intended to provide home and community-based services to allow people to remain with their families and in their communities while receiving long-term care services, which are to be provided in the least restrictive environment appropriate for the consumer. Welf. & Inst. Code § 14139.11.
3. In 1996, San Francisco established the Long-term Care Pilot Project Task Force to improve the availability and effectiveness of long-term care services and maximize independence for individuals receiving such services. In August 1998, the Task Force published a Concept Paper which found that consumers of long-term care services did not have adequate choices and that the current focus of the City and County was on institutional care. The Concept Paper found limited emphasis on consumer needs and concluded that:

1. There is no overall management or integration of community-based services,
2. There is a lack of coordination of services that are received,
3. Consumers are often blocked from access to other services,
4. Consumers are unable to move from one service type to another,
5. There are significant gaps in payments to service providers, as well as significant gaps in services.

1. The Long-term Care Pilot Project Task Force stressed the need to increase the availability of home and community-based services and made specific recommendations to do so. San Francisco has not implemented nor even developed a plan to implement the recommendations. On or about April 18, 2000, the Task Force informed the San Francisco Health Commission that it would not meet its October 17, 2000 goal for submission of a comprehensive plan for implementing the Task Force's recommendations. Instead, the Task Force is not expected to submit a plan until some time in 2001. There are no timelines or funding appropriated for implementation of any future long-term-care plan.

   Laguna Honda

2. Laguna Honda Hospital and Rehabilitation Center was founded in 1866 as a Poor House. The main building houses almost 1,200 residents. Clarendon Hall houses approximately 140 residents. Most residents of the main building live in large, open wards, with as many as 37 residents who sleep in close quarters, separated only by hospital curtains. Laguna Honda is licensed for 1,214 distinct part skilled-nursing facility beds and 243 acute care beds.
3. The Laguna Honda census has been gradually lowered to approximately 1,065 residents as part of a negotiated settlement with the federal Health Care Financing Administration (HCFA), which has repeatedly cited Laguna Honda for standard of care deficiencies and threatened to withdraw federal funding.
4. The state and federal governments pay for most of the services at Laguna Honda. Medicaid is the only health insurance for approximately 95% of Laguna Honda residents. Laguna Honda is "distinct part" skilled-nursing facility, meaning that it must either have some acute care beds or operate under the license of an acute care facility. As a distinct part skilled-nursing facility, Laguna Honda receives a higher daily rate ($234.00) from Medicaid than the free-standing nursing facility daily rate ($104.00). The San Francisco Department of Public Health supplements the Medicaid rate by $46.00 a day. The total cost of care at Laguna Honda is approximately $280.00 a day per resident.
5. Like many Laguna Honda residents, plaintiffs were admitted upon discharge from San Francisco General Hospital (SFGH), which is owned and operated by the City and County of San Francisco. When they were discharged from SFGH, plaintiff were not provided with adequate information about community-based alternatives. As a result of the lack of information, and the lack of adequate community-based long-term care options, plaintiffs remain unnecessarily institutionalized at SFGH and/or are inappropriately transferred to Laguna Honda.
6. In a May 6, 1998 letter, the U. S. Department of Justice (DOJ) notified San Francisco that its investigation had shown "a pattern of egregious conditions that violate residents' constitutional and federal statutory rights" at Laguna Honda, including inadequate action to protect residents from harm and provide them with reasonable safety; deficient health care services, particularly in the areas of nursing and rehabilitation services; inadequate activities and stimulation, inappropriate use of restraints, failure to provide an adequate and appropriate living environment."
7. The May 6 letter emphasized that Laguna Honda was neither properly assessing residents regarding, nor serving them in an appropriate, integrated community settings. To remedy the deficiencies, the City was told to "conduct regular professional assessments to identify residents who could be served in more integrated settings and provide adequate housing or supportive services to assist these individuals in moving from [Laguna Honda] to the community."
8. In June 1998, the San Francisco Department of Public Health established the Laguna Honda Hospital Level of Care Assessment Team to assess whether it would be appropriate for some residents to receive care in a community-based setting. The Team's assessment, however, was flawed in several respects and failed to provide legally adequate assessments for most residents for at least the following reasons:

1. The team assessed only the "highest functioning" individuals and summarily dismissing nearly half of the residents as inappropriate for community-based services.
2. Most residents who were assessed received only a cursory paper review, not the comprehensive, functional assessment required by Medicaid to serve individuals in the most integrated setting in accordance with the ADA.
3. The team failed to consider or make available the full range of community-based services for which residents were eligible and/or would need to live in the community.
4. The team failed to provide meaningful participation by residents, failed to fully inform residents regarding alternatives, failed to consider residents' preferences, and failed to notify residents of their recommendations.

1. The result of the Laguna Honda assessment process was that merely five individuals were discharged into currently available slots in the community.
2. Upon information and belief, Laguna Honda staff, in November 1999, began conducting quarterly discharge assessments of Laguna Honda residents. These assessments are legally inadequate for at least the following reasons:

1. Not all Laguna Honda residents received, or continue to receive, comprehensive and timely assessments regarding eligibility for community-based alternatives or discharge potential;
2. Assessments do not adequately reflect residents' desires for discharge or community-based alternatives, nor do they provide residents, and their surrogates and family members with meaningful information for them to make informed choices regarding options;
3. Assessments fail to consider Medi-Cal waiver services or other legally available community-based alternatives for which residents are eligible;
4. Assessments fail to adequately describe needed community-based services necessary for discharge purposes; and,
5. Recommendations for discharge are not acted upon, nor are alternatives provided in a timely manner.

Laguna Honda Replacement Task Force & Proposition A

1. In April 1998, the San Francisco Health Commission reviewed issues related to Laguna Honda's physical plant and directed the Department of Public Health to develop a plan to replace the facility.
2. In July 1998, the San Francisco Health Commission adopted a resolution to support a General obligation bond to rebuild Laguna Honda. In December 1998, the Department of Public Health presented an "Options for Laguna Honda White Paper" to the Mayor of San Francisco. While recommending rebuilding Laguna Honda, it recognized that community-based alternatives are preferred by many individuals and that community-based services may be more cost effective and afford access to a larger number of individuals in need. In April 1999 the Planning Committee submitted its findings to the San Francisco Health Commission and recommended rebuilding 1,200 beds in one new building on the Laguna Honda campus. The committee made a similar report to the San Francisco Board of Supervisors in May 1999 and recommended capital improvements for Laguna Honda funded by a $437,045,000.00 bond proposal.
3. In June 1999, the San Francisco Board of Supervisors adopted the Laguna Honda Replacement Ordinance for the November 1999 ballot (Proposition A). San Francisco voters passed Proposition A in the November 2, 1999 election. Proposition A provided for the City and County of San Francisco to incur bonded debt in an amount not exceeding $299,000,000.00 for the acquisition, improvement, construction and/or reconstruction of a new health care, assisted living and/or other type of continuing care facility or facilities to replace Laguna Honda Hospital. As interpreted by the San Francisco City Attorney, Proposition A also provided that the first $100 million of several hundred million dollars in tobacco settlement monies received by the City, other than $1 million to be set aside each year for smoking education and prevention programs, would be used to pay for the Laguna Honda Hospital replacement on the current campus, with any remaining tobacco settlement monies received by the City used to offset the cost to property owners of repaying the bonds.
4. Based on information and belief, City defendants are planning to replace Laguna Honda with an institution of similar capacity on the existing campus. The rebuild is estimated to take approximately six years. Depending on the availability of additional funding, City defendants plan to build 150 units of assisted living housing to replace Clarendon Hall. According to City estimates, this project will not be completed for another nine years.
5. Based on information and belief, none of the Proposition A, tobacco settlement, or bond monies and an insufficient amount of other federal, state and local monies will be used to provide services or housing for class members in integrated, non-institutional, community-based alternatives–that is, outside of nursing facilities. As a result, plaintiffs who do not need or want institutional services will continue to be denied timely and adequately assessments for and the choice of receiving long-term care in appropriate, less segregated settings.

   LEGAL CLAIMS

   FIRST CLAIM FOR RELIEF

   Americans With Disabilities Act: Failure to Provide Services in the Most Integrated Appropriate Setting

6. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously.
7. This claim for relief is brought against defendants City and County of San Francisco, Diana Bonta, Grantland Johnson, Stephen Mayberg, Rita Saenz, Lynda Terry, and Clifford Allenby.
8. Individual plaintiffs are "qualified individuals with a disability" within the meaning of 42 U.S.C. § 12131(2), in that they have a physical and/or mental impairment which substantially limits one or more major life activity, including their ability to live independently without support.
9. Individual plaintiffs meet the essential eligibility requirements for long-term care under the state medical and other state and local programs.
10. Defendants Bonta, Johnson, Mayberg, Saenz and Terry are public agency directors responsible for the operation of a public entity, pursuant to 42 U.S.C. §§ 12131(1)(A) and (B). Defendant City and County of San Francisco is a public entity within the meaning of 42 U.S.C. § 12131(1)(A).
11. Defendants are obligated under the ADA to administer their programs in a manner that supports rather than undermines the availability of an integrated community-based delivery system. These defendants utilize methods of administration that subject qualified people with disabilities to discrimination on the basis of disability by failing to properly assess the services and supports that would enable plaintiffs to live in the community, failing to utilize available sources of funding for community-based services, favoring institutional care over community-based care in the allocation of funds, and failing to inform plaintiffs of community-based options for long-term care. As a result, named plaintiffs and class members are denied adequate individualized assessments as to their appropriateness for community-based care and access to the full range of home and community-based services.
12. Defendants have required that plaintiffs and class members be confined in unnecessarily segregated environments–i.e., nursing facilities–rather than in the community in order to obtain long-term care services, in violation of the Title II of the ADA and implementing regulations, including but not limited to ADA's integration mandate which requires that such services be provided in the most integrated setting appropriate.

    SECOND CLAIM FOR RELIEF

    Section 504 of the Rehabilitation Act

13. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraphs set forth previously.
14. This claim for relief is brought against all defendants.
15. Individual plaintiffs are "otherwise qualified individuals with a disability" under Section 504 of the Rehabilitation Act of 1973, as amended–29 U.S.C. § 794 and implementing regulations–in that they have mental and/or physical disabilities which substantially limit their ability to live independently without adequate supports and meet the essential eligibility requirements for long-term care under the Medi-Cal and other state and local programs.
16. Defendants have received and continue to receive federal financial assistance, including federal Medicaid (Medi-Cal) and low-income housing monies, and are thereby recipients of federal aid within the meaning of 29 U.S.C. § 794(b).
17. Defendants have denied plaintiffs and class members access to the array of community-based services they need and, instead, have offered them services only if they are confined in segregated facilities, thereby excluding them from participation in, denying them the benefits of, and otherwise subjecting them to discrimination under programs and activities receiving federal financial assistance, in violation of Section 504 and its implementing regulations.

    ///

    THIRD CLAIM FOR RELIEF

    Medicaid: Failure to Provide Timely and Adequate Notice and Choice of Home and Community-Based Waiver Services

18. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously.
19. This claim for relief is brought against defendants City and County of San Francisco, Grantland Johnson, Stephen Mayberg, Diana Bonta, Rita Saenz, Lynda Terry and Clifford Allenby.
20. Under the Medi-Cal program, there are a variety of feasible alternatives to care in a nursing facility, including home and community-based waiver services. Defendants administration of the Medi-Cal program violates the rights of plaintiffs and plaintiff class members by failing to inform them of the Medi-Cal waiver alternatives to Medicaid-funded nursing facilities, and by failing to offer and make available home and community-based options in violation of 42 U.S.C. §§ 1396n (c)(2)(C) and (D) and implementing regulations. As a result, class members are, or are at risk of being unnecessarily institutionalized.
21. In all of this, defendants have, under color of state law, regulation, usage or ordinance, deprived plaintiffs of rights, privileges or immunities secured to them by the Constitution or laws of the United States in violation of 42 U.S.C. § 1983.

    FOURTH CLAIM OR RELIEF

    Medicaid: Failure to Provide Services with Reasonable Promptness

22. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously.
23. This claim for relief is brought against defendants City and County of San Francisco, Grantland Johnson, Diana Bonta, Stephen Mayberg, Rita Saenz, Lynda Terry, and Clifford Allenby.
24. Defendants' arbitrary and illegal policies, which fail to provide timely and adequate notice of, assessment for, and the provision of Medi-Cal services available under the mandatory, optional and waiver programs, result in extended delays in the provision of community-based long-term care to eligible plaintiff class members.
25. These defendants' administration of the Medi-Cal program, which denies eligible individual plaintiffs and members of the plaintiff class access to needed home and community-based long-term care with reasonable promptness violates 42 U.S.C. § 1396a(a)(8) and 42 C.F.R. § 435.930(a). As a result of defendants' failure to provide such community support services with reasonable promptness, class members are at risk of being, or continue to be unnecessarily institutionalized.
26. In all of this, defendants have, under color of state law, regulation, usage or ordinance, deprived plaintiffs of rights, privileges or immunities secured to them by the Constitution or laws of the United States in violation of 42 USC § 1983.

    FIFTH CLAIM FOR RELIEF

    Nursing Home Reform Act - Timely and Comprehensive Assessment, Reviews, Discharge Planning, and Services

27. Plaintiffs reallege and incorporate each and every allegation and paragraph set forth above.
28. This claim for relief is brought against defendants City and County of San Francisco, Grantland Johnson, Rita Saenz, Diana Bonta, Stephen Mayberg, Lynda Terry and Clifford Allenby.
29. Defendants have violated the rights of named plaintiffs and class members under the Nursing Home Reform Act (NHRA) by engaging in, inter alia, the following: failing to provide timely and comprehensive assessments to all residents; failing to provide timely and adequate quarterly reviews; failing to involve residents and their legal representatives in treatment decisions, including failing to provide language access; and failing to regularly assess and advise residents regarding discharge potential and home and community-based long-term care options in violation of 42 U.S.C. § 1396r and implementing regulations. As a result of these actions, class members are either at risk of being, or continue to be unnecessarily institutionalized.
30. In all of this, defendants have, under color of state law, regulation, usage or ordinance, deprived plaintiffs of rights, privileges or immunities secured to them by the Constitution or laws of the United States, in violation of 42 U.S.C. § 1983.

    SIXTH CLAIM FOR RELIEF

    California Government Code Section 11135

31. Plaintiffs reallege and incorporate each and every allegation and paragraph set forth above.
32. This claim for relief is brought against defendant City and County of San Francisco.
33. Programs and activities operated by the City and County of San Francisco, including programs and activities involved in the provision of long-term care services, are either funded by or receive financial assistance from the state.
34. Plaintiffs and class members are persons with disabilities within the meaning of California Government Code section 11135(c) et seq. and its implementing regulations.
35. Defendant has denied plaintiffs and class members access to the array of community-based services they need and, instead, has offered them services only if they are confined in segregated facilities, thereby excluding them from participation in, denying them the benefits of, and otherwise subjecting them to discrimination under programs and activities receiving state financial assistance, in violation of California Government Code section 11135.

    ALLEGATIONS CONCERNING INJUNCTIVE AND DECLARATORY RELIEF

36. Defendants' actions, as alleged herein, have resulted in, and will continue to result in irreparable injury to plaintiffs for which they have no plain, speedy or adequate remedy at law. An actual controversy exists between plaintiffs and defendants, in that plaintiffs claim that defendants have failed to perform the necessary assessments and reviews, failed to give adequate information to plaintiffs regarding their choice of services and failed to actually provide services in the most integrated setting appropriate to meet plaintiffs' needs, in violation of federal law.
37. Unless the requested relief is granted, organizational plaintiff's mission to assist San Franciscans with disabilities to live independently and in the community, will be thwarted and individual plaintiffs will be denied services and supports that would allow them to live in their local community. Without the availability of such services and supports individual plaintiffs will continue to live in an unnecessarily restrictive institutional setting and suffer harm, including the loss of independent living skills, personal autonomy and personal freedoms.

PRAYER FOR RELIEF

WHEREFORE, the plaintiffs request that the Court grant the following relief:

1. Enter an order certifying the plaintiff class.
2. As to all defendants, declare that defendants' practices, as set forth above, violate plaintiffs' and class members' rights under Section 504 of the Rehabilitation Act, and implementing regulations.
3. As to defendants City and County of San Francisco, Johnson, Bonta, Mayberg, Saenz, Terry and Allenby declare that defendants' practices, as set forth above, violate plaintiffs' and class members' rights under the Nursing Home Reform Act, 42 U.S.C. § 1396r and implementing regulations; the Medicaid Act, 42 U.S.C. § 1396 et seq and implementing regulations; the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq., and implementing regulations; and 42 U.S.C. § 1983.
4. As to defendant City and County of San Francisco, declare that defendants' practices, as set forth above, violate plaintiffs' and class members rights under California Government code section 11135.
5. Enjoin all defendants, their officers, agents, employees, successors, and all other persons in active concert or participation with any of them, from further violation of plaintiffs' and class members' federal civil rights under Section 504 of the Rehabilitation Act and immediately require defendants to provide comprehensive assessments for and offer and provide, as appropriate, plaintiffs and class members long-term care services in their homes and communities, rather than only in unnecessarily segregated institutional facilities.
6. Enjoin defendants City and County of San Francisco, Johnson, Bonta, Mayberg, Saenz, Terry, and Allenby, their officers, agents, employees, successors and all other persons in active concert or participation with any of them, from further violation of plaintiffs' and class members' federal rights under the Americans with Disabilities Act, the Medicaid Act, the Nursing Home Reform Act and 42 U.S.C. § 1983 and immediately require defendants to provide comprehensive assessments for and offer and provide, as appropriate, plaintiffs and class members long-term care services in their homes and communities, rather than only in unnecessarily segregated institutional facilities.
7. Enjoin defendant City and County of San Francisco, its officers, agents, employees, successors, and all other persons in active concert or participation with them, from further violation of plaintiffs' and class members' civil rights under California Government Code section 11135 and immediately require defendants to provide comprehensive assessments for and offer and provide, as appropriate, plaintiffs and class members long-term care services in their homes and communities, rather than only in unnecessarily segregated institutional facilities

   6)Award plaintiffs their costs, expenses, including expert witness fees, and reasonable attorneys' fees, pursuant to California Government Code section 1021.5; 29 U.S.C. § 794a(b); and 42 U.S.C. §§ 1988 and 12205.

8. Grant such other relief as the Court deems just and proper.

Dated:

Respectfully submitted,

Disability Rights Education and Defense Fund

National Senior Citizens Law Center

Bazelon Center for Mental Health Law

Law Offices of Andrew Thomas Sinclair