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Parsons (Fircrest families) v. State of Washington Complaint |
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Parsons (Fircrest Families) v. State of Washington Complaint IN THE SUPERIOR COURT OF WASHINGTON FOR KING COUNTY
I. PARTIES. A. Plaintiffs. 1. Michael Parsons, Randolph Getchman, and Gladys Barker are the Plaintiffs. James R. Hardman and Alice L. Hardman are court-appointed co-guardians for twenty-seven mentally retarded/developmentally disabled (“MR/DD”) individuals who reside at Fircrest Residential Habilitation Center (“Fircrest” or “Fircrest School”), including the following: a. Michael Parsons is a profoundly retarded 60-year old man who has lived at Fircrest for 38 years. He requires 24-hour care, including nighttime observation because he does not sleep through the night. He is nonverbal and suffers from a condition called PICA that causes him to compulsively ingest non-food items. He also suffers from autism and has a history of seizures and wandering. b. Randolph Getchman is a profoundly retarded 50-year old man who has also lived at Fircrest for 38 years. He is nonverbal and also suffers from PICA. He also suffers from tuburous sclerosis, which places him a higher risk for malignancies, and requires regular MRIs of his kidneys and brain. c. Gladys Barker is a 77-year old woman who has lived at Fircrest since 1961. She is profoundly retarded, and suffers from spastic hemiplegia and seizure disorder. She has visual and hearing deficits. She is non-ambulatory and has no self-help skills. She is non-verbal and relies on staff to read her subtle cues of mood. She is medically fragile, and requires total assistance in all activities. 2. Friends of Fircrest is a Washington non-profit corporation of parents and friends of Fircrest School who engage in education and advocacy that benefit residents of Fircrest School. 3. Washington Federation of State Employees (“WFSE”) is and at all times pertinent hereto was Council 28 of the American Federation of State, County, and Municipal Employees, AFL-CIO. The WFSE is the exclusive certified bargaining representative for the classified staff employed by Defendant(s) in civil service job classifications in the Institutions Bargaining Unit, which includes employees at Fircrest School. B. Defendants. The Department of Social and Health Services (“DSHS”) is a government agency of the State of Washington. Dennis Braddock is the Secretary of DSHS. He is sued in his official capacity only. II. STATEMENT OF FACTS1. Fircrest School is a “permanently established” residential habilitation center (“RHC”) pursuant to RCW 71A.20.020. Fircrest is located in Shoreline, Washington and provides services to its residents in either the Intermediate Care Facility for the Mentally Retarded (“ICF/MR”) or in the skilled nursing facility (“SNF”). 2. The ICF/MR and SNF facilities on the Fircrest campus are certified and serve a population of developmentally disabled/mentally retarded (“DD/MR”) individuals. The residents at Fircrest are medically fragile, suffer from multiple disabilities, are profoundly or severely retarded, and/or are behaviorally challenged. 3. The most vulnerable of all the State’s residents live at Fircrest. Nearly all the residents cannot be outside their living unit or training program without direct observation by staff. A vast majority require significant support in daily activities of living, such as eating, dressing, and toileting. Nearly half are completely non-ambulatory, have intensive health care and therapeutic management needs, or pose a danger to themselves or to others. 4. An interdisciplinary team of Fircrest professionals and staff takes part in an annual plan of each Fircrest resident’s needs, with a goal of maximizing independence and autonomy. Doctors, nurses, dieticians, psychologists, psychologists, speech pathologists, recreation specialists, and physical therapists all meet quarterly to review progress under the plan, and guardians and/or family members and relatives participate. The result is an annual Individualized Habilitation Plan (“IHP”) for ICF/MR residents, and an Individualized Plan of Care (“IPOC”) for SNF residents. 5. Article XIII of the Washington Constitution provides that institutions for the developmentally disabled shall be fostered and supported. Fircrest is recognized as an institution for DD clients in RCW 71A.20.020. 6. In June 2003, the Legislature passed budget legislation (ESB 5404) appropriating money for “transition costs associated with the downsizing effort at Fircrest school.” DSHS was required to “organize the downsizing effort” with certain qualifications. DSHS is also required to provide a transition plan by January 1, 2004. Laws of 2003, ch. 25, § 205. DSHS has indicated an intent, pursuant to budget provisions, to downsize, consolidate, or close Fircrest. DSHS has announced that two residential units or cottages in the ICF/MR will be closed by Spring 2004, and two SNF units by the end of 2004. DSHS plans to remove residents from the ICF/MR into community-based housing or into one of the State’s other RHCs. DSHS will also remove residents of the SNF units either into private nursing care or into another RHC. 7. In addition to the forcible eviction and relocation of approximately 69 or more Fircrest residents, DSHS has closed the Planned Respite Care Program at Fircrest. 8. The Plaintiffs believe: a. that pursuant to the budget proviso or otherwise, the downsizing at Fircrest School will continue to be planned and implemented in the immediate future; b. that the downsizing is a substantial step toward the eventual closure of Fircrest School; c. that residents of Fircrest School will be forcibly evicted and relocated, without the informed consent of the Guardian, without any therapeutic basis for the relocation, and for no reason other than budgetary considerations, with inadequate hearing rights afforded to these vulnerable citizens. 9. Since 1988, DSHS has frozen admissions to the RHCs by precluding most new admissions for MR/DD individuals. A Center for Medicaid and Medicare Services (CMS) audit found that DSHS was in violation of federal law by denying services to those that are eligible, or by failing to provide information that RHC services are available, threatening the availability of federal funding. Lower populations caused by these access restrictions are now used by DSHS to justify downsizing and closure based not on therapeutic need, but purely for budgetary purposes. 10. DSHS announced it would promulgate new criteria for admissions by September 1, 2003, but has not promulgated such regulations. As such, admissions remained frozen, and those that are eligible for services at RHCs, including Fircrest, are not informed that an RHC is a service option available to them. 11. The Plaintiffs have a substantive right under Article XIII and Chapter 49.60 to housing and services in existing RHCs, and the right to choose Fircrest School as the most therapeutically appropriate, least isolated, and least restrictive alternative residential placement. The State has a corrolative constitutional duty to offer, provide, and adequately fund housing services to MR/DD individuals who reside or who choose to reside in RHCs. 12. The Plaintiffs have a substantive property or liberty interest under Article XIII Washington law to choose their place of residence and/or reside in the most appropriate locale to receive care, including an RHC such as Fircrest, that may not be taken by the Defendants without due process of law under Art. I, § 3. 13. The WFSE and DSHS have negotiated a Collective Bargaining Agreement, or contract concerning the Institutions Bargaining Unit. The contract includes a provision known as Article XII which prohibits the contracting out of civil service work. The recent budget legislation downsizing, consolidating, or closing Fircrest, and having work previously performed by classified civil servants performed by others, is a direct impairment of the contract. III. CLAIMS FOR RELIEF. Count 1 - Violation of Art. II, § 19 1. The budget proviso violates Art. II, § 19 of the Washington Constitution. Count 2 - Violation of Art. II, § 37 of the Washington Constitution 2. The budget proviso violates Art. II, § 37 of the Washington Constitution. Count 3 - Violation of Art. XIII of the Washington Constitution and Chapter 49.60 RCW 3. The Plaintiffs’ rights under Article XIII of the Washington Constitution and Chapter 49.60 RCW have been violated. Count 4 - Violation of Art. I, § 3 of the Washington Constitution 4. The Plaintiffs’ rights under Article I, § 3 of the Washington Constitution and Chapter 49.60 RCW have been violated. Count 5 - Violation of Art. I, § 23 of the Washington Constitution 5. The Plaintiff WFSE’s rights under Art. I, § 23 of the Washington Constitution have been violated. IV. RELIEF REQUESTED. WHEREFORE, the Plaintiffs respectfully request that this Court: A. Declare that the enactment of the budget proviso violates Art. II, § 19 and/or Art. II, § 37 of the Washington Constitution; B. Declare that the freeze on admissions, and the downsizing, consolidation, or closure of Fircrest School violates the right to housing and services in RHCs as guaranteed by Article XIII of the Washington Constitution and Chapter 49.60 RCW; C. Declare that the forced eviction and relocation of the Plaintiffs violates their substantive and due process rights guaranteed by Art. I, § 3 of the Washington Constitution and Chapter 49.60 RCW. The Plaintiffs each have a right to determine, based on a therapeutic reason only, and in his/her best interests, and with the informed consent of his/her guardian, where the Plaintiff will live; D. Declare that by having work previously performed by classified civil servants performed by others violates Art. I, § 23 of the Washington Constitution. E. Issue a permanent injunction: (1) restraining the Defendants from enforcement or implementation of the budget provisos; (2) restraining the Defendants from restricting admissions to Fircrest School and other RHCs for those therapeutically or medically eligible, ordering DSHS to define the criteria for admissions, open admissions, and notify those eligible of the option; (3) restraining the Defendant from forcibly evicting and relocating residents of Fircrest School and other RHCs unless: (i) there is a therapeutic reason that the new residential placement is (ii) in the best interests of the resident, and (iii) informed consent has been given by a guardian or family member. (4) restraining the Defendant from having work performed by classified civil servants performed by others. F. Award Plaintiffs reasonable attorney fees and costs for this action under the Washington Law Against Discrimination, Chapter 49.60 RCW; G. Grant the Plaintiffs such other relief as may be just and equitable. December __, 2003 Respectfully submitted, HARDMAN & JOHNSON ______________________________ Michael L. Johnson, WSBA #28172 Counsel for Plaintiffs Hardman and Friends of Fircrest 119 First Ave. So. - Suite 200 Seattle, WA 98104 206-447-1560
TALMADGE LAW GROUP, PLLC
_______________________________ Philip A. Talmadge, WSBA # 6973 Counsel for Plaintiffs Hardman and Friends of Fircrest 18010 Southcenter Parkway Tukwila, WA 98188-4630 206-574-6661
PARR, YOUNGLOVE, LYMAN & COKER ________________________________ Edward Younglove III, WSBA # 5873 Counsel for Plaintiff WSFE P.O. Box 7846 Olympia, WA 98507-7846
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