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Christensen v. Miner

United States District Court, D. Utah

September 24, 2019

STACI CHRISTENSEN, JOHN R. WEAKLY, and DISABILITY LAW CENTER, Plaintiffs,
v.
JOSEPH MINER M.D., et al., Defendants.

          MEMORANDUM DECISION AND ORDER

          DALE A. KIMBALL UNITED STATES DISTRICT JUDGE.

         This matter is before the court on a Motion to Intervene filed by several Intermediate Care Facilities (“ICFs”) in Utah. On September 24, 2019, the court held a hearing on the motion. At the hearing, Plaintiffs were represented by Laura Henrie, Nate Crippes, and Cedar Cosner, the State Defendants were represented by David N. Wolf, and the ICF Movants were represented by Michael J. Collins, and Greg Anjewierden. The court took the matter under advisement. The court has carefully considered the memoranda submitted by the parties and the law and facts relevant to the motions. Now being fully advised, the court enters the following Memorandum Decision and Order.

         BACKGROUND

         On December 19, 2016, the Disability Law Center (“DLC”) wrote a letter to Governor Herbert, the Executive Director of the Utah Department of Health (“UDOH”), and the Executive Director of Human Services, alleging that the State of Utah’s failure to create a working plan to transition individuals with intellectual and/or developmental disabilities from intermediate care facilities into the community at a reasonable pace constitutes a violation of the Americans with Disabilities Act and Olmstead v. L.C., 527 U.S. 581 (1999). State officials met with several parties and held a series of public meetings to seek input from interested parties regarding the need for home and community based services for individuals with intellectual and developmental disabilities. However, the DLC was not satisfied with the pace of progress and filed this class action lawsuit against the various State defendants on January 12, 2018.

         The Complaint requested that the State of Utah: (1) develop and implement a working plan for identifying and transitioning individuals with intellectual or developmental disabilities from private ICFs into home and community-based services by providing appropriate information and supports and conducting appropriate assessments of all residents to determine individual preference; (2) evaluate, improve, and expand the services that support individuals with intellectual or developmental disabilities so that individuals who reside in private ICFs and are not opposed to leaving may live in integrated, community-based settings; and (3) reduce the State’s reliance on segregated, institutional care in private ICFs for individuals with intellectual or developmental disabilities in Utah.

         The ICFs currently moving to intervene state that they did not attempt to intervene in the lawsuit at that time because there was no need to based on the allegations of the Complaint. The ICFs state that they do not oppose additional treatment options for residents that want to leave the facilities. On July 27, 2018, state officials met with counsel for the Utah Health Care Association to discuss the status of the lawsuit, the possibility of settlement, and whether UHCA or its member ICFs were going to intervene in the lawsuit. Again, on August 16, 2018, state officials met with ICF representatives to discuss the ICF transition program and issues related to the pending lawsuit. Then, on November 19, 2018, state officials held a conference call to discuss the ICF transition program and issues related to the pending lawsuit.

         Before the proposed Settlement Agreement for this case was approved by the Governor and State Legislature, public committee meetings were held to discuss funding and other issues related to the potential settlement. On February 6, 2019, the proposed Settlement Agreement was presented to the Social Services Appropriations Subcommittee, along with UDOH and DHS funding requests. The state agencies’ presentation included power point slides identifying anticipated ICF bed reductions and suggested funding for ICF quality improvements. On March 4, 2019, Governor Herbert approved the terms of the Settlement Agreement and forwarded it the President of Senate and Speaker of the House of Representatives. At the legislative hearing on it, a representative of UHCA spoke on the bill. On March 12, 2019, the Legislature passed the bill approving the terms of the Settlement Agreement. On April 16, 2019, Utah Department of Health representatives met with ICF representatives to discuss the Settlement Agreement at the UHCA spring conference.

         On May 14, 2019, this court certified Plaintiffs’ proposed class of “all persons with an intellectual and/or developmental disability who are eligible for Medicaid, reside in a private ICF in Utah on or after January 12, 2018, and prior to the termination of this lawsuit have expressed an interest in living in the community and are capable of living in the community.” On May 17, 2019, this court preliminarily approved the parties’ proposed joint Settlement Agreement and scheduled a fairness hearing for final approval to be held on October 17, 2019.

         The ICF movants state that they learned of the parties’ Joint Motion for Settlement Approval in a July 2, 2019 letter the DLC sent to administrators at various ICF/ID facilities. The ICF movants claim that the proposed Settlement Agreement goes far beyond the relief requested in Plaintiff’s Complaint because it requires Defendant to transition approximately 300 potential class members from private ICFs to HCBS within six years, put in place a permanent moratorium on licensing additional beds in private ICFs in Utah, and reduce the total number of licensed private ICF beds. The Settlement Agreement does not identify the approximately 300 class members who want to transition away from ICFs and does not appear to be congruent with the desire to provide patient choice.

         DISCUSSION

         ICFs’ Motion to Intervene

         The ICF movants seek only intervention as a matter of right under Rule 24 of the Federal Rules of Civil Procedure. Under the provisions for intervention as a matter of right, Rule 24(a) requires a court to permit anyone to intervene who “(1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.” Fed.R.Civ.P. 24(a).

         A court must, therefore, consider whether: 1) the application is timely; 2) the applicant claims an interest relative to the property at issue; 3) the interest may as a practical matter be impaired; and 4) the interest is adequately represented by existing parties. See Utah Ass’n of Counties v. Clinton, 255 F.3d 1246, 1249 (10th Cir. 2001). A party must show they have a “direct, substantial, and legally protectable” interest in the action. Id. at 1251.

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