Case: B.K. v. McKay

2:15-cv-00185 | U.S. District Court for the District of Arizona

Filed Date: Feb. 3, 2015

Case Ongoing

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Case Summary

On February 3, 2015, minors in the custody of the Arizona foster care system filed this lawsuit in the U.S. District Court for the District of Arizona. The plaintiffs sued the Arizona Department of Child Safety, the Arizona Department of Health Services, and the Arizona Health Care Cost Containment System under 42 U.S.C. § 1983 and Title XIX of the Social Security Act (42 U.S.C. § 1396). The plaintiffs, represented by Children’s Rights, Inc., the Arizona Center for Law in the Public Interest, and private counsel, sought class certification and both declaratory and injunctive relief. The plaintiffs claimed that the defendants had violated their First, Ninth, and Fourteenth Amendment rights, and provisions of the Medicaid Act. Specifically, the plaintiffs claimed that certain child welfare policies and practices exposed them to physical and emotional harm and unreasonable risk of harm while in the State’s care.

Over the preceding several years, Arizona had experienced a dramatic increase in the number of children in state foster care, with that population nearly doubling from 2003 to 2012. The plaintiffs alleged that this growth had been fueled by extensive state budget cuts to important support services that had previously helped keep families together. The plaintiffs alleged that these cuts resulted in problematic policies and institutional issues in Arizona, including: a severe shortage of physical, mental, and behavioral health services available to children in state care; a widespread failure to conduct timely investigations of reports that children had been maltreated while in state custody; and severe and sustained shortage of family foster homes. Allegedly, there was also a widespread failure to engage in basic child welfare practices aimed at maintaining family relationships, such as placing siblings together, placing children with their biological parents on a trial reunification basis, coordinating visits between children and their biological families, and having caseworkers make regular visits with the children’s biological parents to monitor progress toward family reunification. Due to these problems, children were frequently placed far from their home communities, were forced to change schools, were separated from their siblings, and did not receive the mental and physical health care that they required.

On September 29, 2015, Judge Roslyn O. Silver denied the defendants’ motion to abstain and dismiss due to lack of subject matter jurisdiction. The court rejected the defendants’ argument that the Younger doctrine required abstention in this case because the injunctive relief sought would interfere with the state juvenile court’s ability to perform its judicial functions and because the case was related to ongoing proceedings in juvenile court which were quasi-criminal in nature. The court found that the plaintiffs’ requested relief would “not involve or interfere with the interest of the state in enforcing the orders and judgments of state courts” and that the ongoing dependency proceedings at issue were not for the purpose of enforcing criminal laws. The court also rejected the defendants’ invocation of O’Shea abstention, which prohibits a federal court from issuing an injunction which “would result in an ongoing federal audit of state court proceedings.” Finally, the court disagreed with the defendants’ assertion that Pullman abstention was appropriate, because the plaintiffs had not raised state law claims and the defendants had not presented any state law basis under which the plaintiffs’ constitutional claims might be resolved. 156 F. Supp. 3d 1024.

On May 13, 2016, the court ordered that one of the three next friends (in this case, a person representing a minor unable to maintain a lawsuit on his or her own behalf) be dismissed because they were ineligible to be a next friend. 2016 WL 8200450.

After two years of continuous discovery disputes and scheduling delays, Judge Roslyn O. Silver granted class certification for the plaintiffs on September 30, 2017. The class was defined in three parts as:

"General Class: All children who are or will be in the legal custody of DCS due to a report or suspicion of abuse or neglect. Non-Kinship Subclass: All members in the General Class who are not placed in the care of an adult relative or person who has a significant relationship with the child. Medicaid Subclass: All members of the General Class who are entitled to early and periodic screening, diagnostic, and treatment services under the federal Medicaid statute."

The defendants petitioned the U.S. Court of Appeals for the Ninth Circuit for permission to appeal class certification, which was granted by the appellate court on December 19, 2017.

On January 3, 2018, the defendants moved to stay further action in the case while the class action appeal was decided by the Ninth Circuit. The defendants argued that the district court proceedings should be stayed because discovery for the class action was time-intensive and expensive, and the deadlines for dispositive motions in the district court conflicted with deadlines in the court of appeals. The plaintiffs argued that an indefinite stay would cause irreparable harm to children in foster care.

On February 13, 2018, Judge Silver denied without prejudice the defendants’ motion to stay, finding that the defendants were unlikely to succeed on the merits. However, on February 27, 2018, the Ninth Circuit granted a motion to stay pending their decision on class certification.

On June 4, 2018, one of the plaintiffs filed a handwritten motion for leave to file a supplemental complaint, requesting the certification of an additional subclass called “Plaintiffs with Mental Illnesses,” of which he would be a member. Judge Silver denied this motion on September 24, 2018, since a class certification appeal was still pending before the Ninth Circuit.

The Ninth Circuit released its decision on April 26, 2019, affirming two of the certified subclasses and vacating and remanding one. The Ninth Circuit affirmed the General Class and the Non-Kinship Subclass, but vacated and remanded the Medicaid Subclass, finding that the district court failed to make a finding that each member of the class was subject to identical future significant risk of Medicaid violations that would support injunctive relief. 922 F.3d 957.

The parties agreed that the plaintiffs would recertify the Medicaid class and that additional discovery would be needed. On July 31, 2019, the plaintiffs thereafter filed a motion for class recertification, and on August 9, 2019, Judge Silver ordered the defendants to pay the costs of additional discovery, which were projected to range from $135,000-$150,000.

On October 11, 2019, Judge Silver granted the plaintiffs’ motion to recertify the Medicaid subclass.

After this final subclass was created, the defendants in the initial action filed a petition for a writ of certiorari with the U.S. Supreme Court on December 12, 2019. They contested the Ninth Circuit's decision to certify the class and most of the subclasses, stating that the classes, as written, did not have similar injuries across all members of the class. They contested the Ninth Circuit's decision in Parsons v. Ryan—the basis for upholding the classes at issue here—that certified a class with disparate injuries because the injuries were caused by the same statewide policy, and urged the Supreme Court to overturn it. The Supreme Court denied certiorari on March 20, 2020.

On July 31, 2020, the district court entered an order requiring the plaintiffs to file a motion to dismiss by August 11, 2020, if they intended to dismiss their third cause of action. The plaintiffs’ third cause of action alleged that the defendants violated the plaintiffs’ substantive due process rights by failing to provide timely investigations of reports that the class members had been maltreated while in state custody.

Following extensive discovery, the parties began engaging in settlement talks in June 2020. After multiple negotiation sessions over the course of two months, the parties reached a settlement agreement. The agreement required the defendants to adopt new policies and practices to improve the following areas: 1) behavioral health, 2) physical and dental health, 3) case manager workload, and 4) placement array.

As part of the improvements to the behavioral health system, the defendants agreed to the following:

Ensure that behavioral health services would be tailored to the child and family and provided in the most appropriate setting, in a timely fashion and in accordance with best practices, while respecting the child’s family’s cultural heritage;
Provide children in out of home care access to a comprehensive array of behavioral health services, sufficient to ensure that they receive the treatment they need;
Provide children in out of home care with behavioral health services from competent individuals who were adequately trained and supervised, provided in their home and community to the extent possible;
Implement a quality assurance program;
Review behavioral health cases to ensure that the particular needs of children in foster care were met;
Improve its written policies with regard to Child and Family Teams, therapeutic foster care, and children transitioning from higher levels of care; and
Meet specific outcome goals, including a compliance percentage of at least 80% over the course of three years.

In regards to physical and dental health, the defendants agreed to the the following:

Improve tracking of comprehensive medical and dental examinations and other health care services;
Develop and implement a training module for case managers to help them recognize potential developmental disabilities in children;
Regularly measure and report the number and percentage of youth in out-of-home care who receive a comprehensive medical and dental exam, the number and percentage who receive a follow-up medical or dental service, the aggregate percentage of timely well-child examinations, the number and percentage of youth that receive immunizations; and
Meet the specific outcome goal of at least 85% compliance for two consecutive years.

In terms of case manager workload, the defendants agreed to:

Measure and monitor on a monthly basis the workload of case managers; and
Perform practice improvement case reviews to monitor the quality of the services provided to children in out-of-home care.

Regarding placement array, the defendants agreed to:

Improve caregiver selection by prioritizing placing children in family-like settings, monitoring caregiver availability, and implementing a standardized placement system;
Develop, refine, and implement long term programs to reduce the use of congregate care;
Employ a recruitment estimator model to identify foster family homes in order to meet the needs of children in out-of-home care;
Measure and monitor on a monthly basis the number and percentage of various placement arrangements, including the rate that siblings were placed together, the rate that children were placed in their home communities, the number and percentages of children placed in congregate care; and
Either reduce the utilization of congregate care to 10.5% or less and maintain that percentage for one year, or develop a practice improvement/corrective plan reasonably designed to achieve congregate care utilization of 10.5% and implement that plan for at least one year.

The settlement agreement also provided that the plaintiffs would continue to monitor the defendants for compliance, with the defendants’ agreeing to meet the requirements of the settlement by December 31, 2025. It also designated retired Arizona superior court judge Kenneth Fields as a mediator for potential disputes, and awarded attorneys’ fees to the plaintiffs in the amount of $6,500,000.

On October 13, 2020, the court granted the parties joint motion for preliminary approval of the settlement agreement. Following the preliminary approval, the court received comments from more than 80 stakeholders, the majority of which were supportive of the agreement.

On February 12, 2021, the court approved the final settlement agreement and dismissed the case with prejudice. The court retained jurisdiction to enforce the terms of the settlement.

	Document
2:15-cv-00185	Docket [PACER] Tinsley v. Flanagan	Oct. 24, 2019	Oct. 24, 2019 Docket
1 2:15-cv-00185	Complaint for Injunctive and Declaratory Relief and Request for Class Action B.K. v. Flanagan	Feb. 3, 2015	Feb. 3, 2015 Complaint
37 2:15-cv-00185	Second Amended Complaint for Injunctive and Declaratory Relief and Request for Class Action	June 8, 2015	June 8, 2015 Complaint
51 2:15-cv-00185	Order Tinsley v. McKay	Sept. 29, 2015	Sept. 29, 2015 Order/Opinion 156 F.Supp.3d 1024
363 2:15-cv-00185	Order Tinsley v. Flanagan	Sept. 29, 2017	Sept. 29, 2017 Order/Opinion
418 2:15-cv-00185 17-17501	Opinion U.S. Court of Appeals for the Ninth Circuit	April 26, 2019	April 26, 2019 Order/Opinion 922 F.3d 957
430 2:15-cv-00185	Plaintiffs' Motion and Memorandum of Points and Authorities in Support of Certification of the Medicaid Subclass	July 31, 2019	July 31, 2019 Pleading / Motion / Brief
461 2:15-cv-00185	Order	Oct. 11, 2019	Oct. 11, 2019 Order/Opinion 411 F.Supp.3d 462
529-1 2:15-cv-00185	Exhibit 1: Revised Settlement Agreement	Aug. 31, 2020	Aug. 31, 2020 Settlement Agreement

ECF Number	Description	Date	Link Date / Link
1	COMPLAINT. Filing fee received: $400.00, receipt number 0970-11314597 filed by Susan Brandt, Margaret Tinsley, Jennifer Kupiszewski. (submitted by Roopali Desai) (Attachments: # 1 Civil Cover Sheet)(REK) (Entered: 02/03/2015) 1 Civil Cover Sheet View on PACER	Feb. 3, 2015	Feb. 3, 2015 Clearinghouse
2	SUMMONS Submitted by Susan Brandt, Jennifer Kupiszewski, Margaret Tinsley. (submitted by Roopali Desai) (Attachments: # 1 Summons)(REK) (Entered: 02/03/2015) 1 Summons View on PACER	Feb. 3, 2015	Feb. 3, 2015 PACER
3	Filing fee paid, receipt number 0970-11314597. This case has been assigned to the Honorable Roslyn O. Silver. All future pleadings or documents should bear the correct case number: CV-15-00185-PHX-ROS. Notice of Availability of Magistrate Judge to Exercise Jurisdiction form attached. (REK) (Entered: 02/03/2015)	Feb. 3, 2015	Feb. 3, 2015 PACER
4	Summons Issued as to Charles Flanagan, William Humble. (Attachments: # 1 Summons)(REK). *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document. (Entered: 02/03/2015) 1 Summons View on PACER	Feb. 3, 2015	Feb. 3, 2015 PACER
5	MOTION for Admission Pro Hac Vice as to attorney Julia Lucia Davis on behalf of Susan Brandt, Jennifer Kupiszewski, and Margaret Tinsley. (BAS) (Entered: 02/04/2015)	Feb. 4, 2015	Feb. 4, 2015 PACER
	Pro Hac Vice Fee Paid	Feb. 4, 2015	Feb. 4, 2015 PACER
	PRO HAC VICE FEE PAID. $ 35, receipt number PHX154949 as to Julia L Davis. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS)	Feb. 4, 2015	Feb. 4, 2015 PACER
6	MOTION for Admission Pro Hac Vice as to attorney William A Kapell on behalf of Susan Brandt, Jennifer Kupiszewski, and Margaret Tinsley. (BAS) (Entered: 02/04/2015)	Feb. 4, 2015	Feb. 4, 2015 PACER
	PRO HAC VICE FEE PAID. $ 35, receipt number PHX154950 as to William A Kapell. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS)	Feb. 4, 2015	Feb. 4, 2015 PACER
7	ORDER pursuant to General Order 09-08 granting 5 Motion for Admission Pro Hac Vice; granting 6 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 02/04/2015)	Feb. 4, 2015	Feb. 4, 2015 PACER
8	SERVICE EXECUTED filed by Susan Brandt, Jennifer Kupiszewski, Margaret Tinsley: Proof of Service re: Summons and Complaint upon Charles Flanagan and William Humble on 02/04/2015. (Desai, Roopali) (Entered: 02/10/2015)	Feb. 10, 2015	Feb. 10, 2015 PACER
9	NOTICE of Appearance by Robert Lawrence Ellman on behalf of Charles Flanagan. (Ellman, Robert) (Entered: 02/24/2015)	Feb. 24, 2015	Feb. 24, 2015 PACER
10	STIPULATION FOR EXTENSION OF TIME TO ANSWER COMPLAINT FIRST REQUEST. (Attachments: # 1 Text of Proposed Order)(Ellman, Robert) (Entered: 02/24/2015) 1 Text of Proposed Order View on PACER	Feb. 24, 2015	Feb. 24, 2015 PACER
11	NOTICE of Appearance by Daniel Patrick Struck on behalf of William Humble. (Struck, Daniel) (Entered: 02/24/2015)	Feb. 24, 2015	Feb. 24, 2015 PACER
12	ORDER approving the 10 Stipulation For Extension of Time To Answer Complaint: William Humble answer due 3/27/2015; Gregory McKay answer due 3/27/2015. IT IS FURTHER ORDERED the caption of this action is amended to substitute Gregory McKay as a defendant in place of Charles Flanagan. Signed by Senior Judge Roslyn O Silver on 2/24/15. (LAD) (Entered: 02/25/2015)	Feb. 25, 2015	Feb. 25, 2015 PACER
13	NOTICE of Appearance by David Daniel Weinzweig on behalf of Gregory McKay. (Weinzweig, David) (Entered: 02/27/2015)	Feb. 27, 2015	Feb. 27, 2015 PACER
14	MOTION to Withdraw as Attorney by Susan Brandt, Jennifer Kupiszewski, Margaret Tinsley. (Attachments: # 1 Text of Proposed Order)(Beauchamp, Keith) (Entered: 03/02/2015) 1 Text of Proposed Order View on PACER	March 2, 2015	March 2, 2015 PACER
15	ORDER granting 14 Motion (Application) for Withdrawal of Counsel. Attorney Shelley Tolman; Keith Beauchamp and Roopali H Desai terminated. Signed by Senior Judge Roslyn O Silver on 3/3/15.(LAD) (Entered: 03/03/2015)	March 3, 2015	March 3, 2015 PACER
16	Joint MOTION for Protective Order and Stipulation to Extend Time to Answer or Otherwise Plead (Second Request) and Request to Amend Caption by William Humble. (Attachments: # 1 Text of Proposed Order Protective Order and Order Granting Extension of Time to Answer or Otherwise Plead (Second Request) and Order Granting Request to Amend Caption)(Struck, Daniel) (Entered: 03/13/2015) 1 Text of Proposed Order Protective Order and Order Granting Extension of Time to View on RECAP	March 13, 2015	March 13, 2015 RECAP
17	ORDER denying in part the 16 Motion for Protective Order. No protective order will issue. But, as stipulated by the parties, Defendants shall have an additional thirty days in which to answer the complaint after the identities of all minor Plaintiffs are made known to all of the Defendants. IT IS FURTHER ORDERED the caption of this action is hereby amended to substitute Cory Nelson as a defendant in place of defendant William Humble. (See document for full details). Signed by Senior Judge Roslyn O Silver on 3/16/15.(LAD) (Entered: 03/16/2015)	March 16, 2015	March 16, 2015 RECAP
18	Joint MOTION for Protective Order Joint Motion to Enter into a Protective Order by Cory D Nelson. (Attachments: # 1 Exhibit A - Protective Order)(Struck, Daniel) (Entered: 03/18/2015) 1 Exhibit A - Protective Order View on RECAP	March 18, 2015	March 18, 2015 RECAP
19	PROTECTIVE ORDER - ORDERED granting 18 Joint Motion for Protective Order. (See attached Order). Signed by Senior Judge Roslyn O Silver on 3/19/2015.(TLB) (Entered: 03/19/2015)	March 19, 2015	March 19, 2015 RECAP
20	NOTICE of Appearance by Joseph E Mais on behalf of Susan Brandt, Jennifer Kupiszewski, Margaret Tinsley. (Mais, Joseph) (Entered: 04/16/2015)	April 16, 2015	April 16, 2015 PACER
21	AMENDED COMPLAINT by Consent against Gregory McKay, Cory D Nelson filed by Susan Brandt, Margaret Tinsley, Jennifer Kupiszewski.(Kapell, William) (Entered: 04/20/2015)	April 20, 2015	April 20, 2015 RECAP
22	NOTICE of Filing Amended Pleading pursuant to LRCiv 15.1(b) by Susan Brandt, Jennifer Kupiszewski, Margaret Tinsley . (Attachments: # 1 Exhibit Amended Complaint with Changes Marked)(Kapell, William) (Entered: 04/20/2015) 1 Exhibit Amended Complaint with Changes Marked View on PACER	April 20, 2015	April 20, 2015 PACER
23	* MOTION to Intervene of AHCCCS Director Thomas Betlach and MOTION FOR Leave to File Answer by Thomas Betlach. (Attachments: # 1 Text of Proposed Order)(Johnston, Logan). *Added MOTION for Leave to File on 5/8/2015 (REK). (Entered: 05/07/2015) 1 Text of Proposed Order View on PACER	May 7, 2015	May 7, 2015 PACER
24	* (Filed at Doc. 35 ) LODGED Proposed Proposed Answer of Thomas Betlach to First Amended Complaint re: 23 MOTION to Intervene of AHCCCS Director Thomas Betlach. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Thomas Betlach. (Johnston, Logan) Modified on 6/3/2015 (LAD). (Entered: 05/07/2015)	May 7, 2015	May 7, 2015 PACER
25	MOTION Leave to Exceed Page Limit by Gregory McKay, Cory D Nelson. (Attachments: # 1 Text of Proposed Order)(Weinzweig, David) Modified to correct event - attorney noticed on 5/8/2015 (REK). (Entered: 05/07/2015) 1 Text of Proposed Order View on PACER	May 7, 2015	May 7, 2015 PACER
26	FILED AT DOC 39 LODGED PROPOSED DOCUMENT re: 25 Motion for Leave to File Excess Pages: MOTION to Dismiss for Lack of Jurisdiction Motion to Abstain and Dismiss by Gregory McKay, Cory D Nelson. (Weinzweig, David)* Modified to correct event - attorney noticed on 5/8/2015 (REK). Modified on 6/8/2015 (ATD). (Entered: 05/07/2015)	May 7, 2015	May 7, 2015 PACER
27	NOTICE of Appearance by Timothy James Bojanowski on behalf of Cory D Nelson. (Bojanowski, Timothy) (Entered: 05/08/2015)	May 8, 2015	May 8, 2015 PACER
28	ORDER granting 25 Defendants' Joint Motion for Leave to File Excess Page Limit. FURTHER ORDERED Defendants Joint Motion to Abstain and DismissPursuant to Fed. R. Civ. P. 12(b)(1), of no more than 30 pages in length, (Doc. 26 ), will be allowed. Signed by Senior Judge Roslyn O Silver on 5/11/2015.(TLB) (Entered: 05/11/2015)	May 11, 2015	May 11, 2015 PACER
39	JOINT MOTION to Abstain and Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) by Gregory McKay, Cory D Nelson. (ATD) (Entered: 06/08/2015)	May 11, 2015	May 11, 2015 PACER
29	RESPONSE in Opposition re: 23 MOTION to Intervene of AHCCCS Director Thomas Betlach MOTION for Leave to File filed by Susan Brandt(on behalf of minors:), Jennifer Kupiszewski, Margaret Tinsley. (Mais, Joseph) (Entered: 05/19/2015)	May 19, 2015	May 19, 2015 PACER
30	NOTICE re: Non-Opposition by Cory D Nelson re: 23 MOTION to Intervene of AHCCCS Director Thomas Betlach MOTION for Leave to File . (Acedo, Nicholas) (Entered: 05/22/2015)	May 22, 2015	May 22, 2015 PACER
31	MOTION for Admission Pro Hac Vice as to attorney Rachel Brodin Nili on behalf of Jennifer Kupiszewski, and Margaret Tinsley. (BAS) (Entered: 05/27/2015)	May 26, 2015	May 26, 2015 PACER
32	MOTION for Admission Pro Hac Vice as to attorney Adriana Teresa Luciano on behalf of Jennifer Kupiszewski, and Margaret Tinsley. (BAS) (Entered: 05/27/2015)	May 26, 2015	May 26, 2015 PACER
	Pro Hac Vice Fee Paid	May 27, 2015	May 27, 2015 PACER
	PRO HAC VICE FEE PAID. $ 35, receipt number PHX158930 as to Rachel Brodin Nili. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS)	May 27, 2015	May 27, 2015 PACER
	PRO HAC VICE FEE PAID. $ 35, receipt number PHX158925 as to Adriana Teresa Luciano. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS)	May 27, 2015	May 27, 2015 PACER
33	ORDER pursuant to General Order 09-08 granting 31 Motion for Admission Pro Hac Vice; granting 32 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 05/27/2015)	May 27, 2015	May 27, 2015 PACER

Case: B.K. v. McKay

2:15-cv-00185 | U.S. District Court for the District of Arizona

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