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Apr-26-2005 11:51 am
Case Number: CGC-05-440183
Filing Date: Apr-25-2005 11:49
Juke Box: 001 Image: 01185975
STIPULATION AND SETTLEMENT AGREEMENT
LIFORNIA ADVOCATES FOR NURSING HOME REFORM VS. ARNOLD SCHWARZENEGC
001001185975
Instructions:
Please place this sheet on top of the document to be scanned.An uw Fw N
BILL LOCKYER
Attorney General of the State of California
DOUGLAS M. PRESS
Supervising Deputy Attorney General
KARIN S. SCHWARTZ, State Bar No. 209455
Deputy Attorney General F
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
Telephone: (415) 703-1382
Fax: (415) 703-5480
ORIGINAL
E
San Francisco County Superior Court
APR 2 5 2005
Attorneys for Defendants and Respondents GORDON PARK-L, Clerk
BY: Nese —& Legos
Deputy Clerk’
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
CALIFORNIA ADVOCATES FOR NURSING
HOME REFORM,
Plaintiff and Petitioner,
v.
ARNOLD SCHWARZENEGGER, in his official
capacity as Governor of the State of California;
SANDRA SHEWRY, in her official capacity as
Director of the California Department of Health
Services; STAN ROSENSTEIN, in his official
capacity as Deputy Director, Medical Care Services
of the California Department of Health Services; the
DEPARTMENT OF HEALTH SERVICES, and
DOES 1-10, inclusive,
Defendants and Respondents.
CASE NO. 05-440183
STIPULATION AND
SETTLEMENT AGREEMENT
Dept: 301
Judge: The Honorable
James L. Warren
Action Filed: April 7, 2005
This Stipulation and Settlement Agreement is entered into by and between
CALIFORNIA ADVOCATES FOR NURSING HOME REFORM £(plaintiff), on the one hand,
and the CALIFORNIA DEPARTMENT OF HEALTH SERVICES, its Director, SANDRA
SHEWRY, and STAN ROSENSTEIN (defendants), on the other hand, to fully resolve the issues
in the case. Defendant ARNOLD SCHWARZENEGGER shall be dismissed from this case.
//
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Stipulation and Settlement Agreement, CANHR v. Schwarzenegger, No. 05-440183Co YN DAH FB WN
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INTRODUCTION
On April 7, 2005, plaintiff filed a Complaint for Declaratory and Injunctive Relief;
Petition for Writ of Mandate (Complaint) against defendants in San Francisco County Superior
Court, Case Number 05-440183 (Lawsuit). At issue is defendants’ promulgation of various
regulations, entitled “Estate Recovery Regulations, R-32-00E,” to govern its Medi-Cal estate
recovery program. Plaintiff challenges adoption of the regulations as “emergency regulations”
because, according to plaintiff, no “emergency” exists within the meaning of Government Code
section 11346.1 or Welfare and Institutions Code section 14043.75.
Defendants deny that they have violated the Administrative Procedure Act (APA) as
alleged in the Complaint. They contend that the regulations were properly adopted on an
“emergency” basis in order to avoid the potential for fraud and abuse, to comply with the
permanent injunction in CANHR v. Bonta, Case No. 315107, in San Francisco Superior Court,
and to assist the State in meeting its obligations under state and federal laws applicable to estate
recovery.
To avoid the costs and uncertainty of litigation, the parties desire to settle, fully and
finally, the Lawsuit. The parties therefore stipulate and agree as follows.
TERMS
1. Defendants shall not apply the Estate Recovery Regulations, R-32-00E, and the
regulations shall have no effect, until interested persons have had an opportunity to comment on
them; defendants have considered those comments; defendants have made all modifications to
the regulations that they deem appropriate; the rulemaking file has been submitted to the Office
of Administrative Law (OAL), as set forth in Government Code sections 11346.8 and 11346.9;
and the OAL has completed any review required under the applicable statutes. The intent of the
parties is that the final Estate Recovery Regulations, R-32-00E, shall be effective in individual
estate recovery cases only after they are finally adopted pursuant to paragraph 3.
2. Subject to paragraph 1, defendants shall continue the process for adoption of R-
32-00E, as previously approved by the OAL and filed with the Secretary of State on March 23,
2005, that it already has initiated. The parties agree that, with respect to R-32-00E, all
2
Stipulation and Settlement Agreement, CANHR v. Schwarzenegger, No. 05-440183provisions of the APA governing submission of the initial proposed regulations to the OAL
through scheduling of a public hearing on the proposed regulations and solicitation of public
comments have been satisfied.
3. Defendants shall proceed with the public hearing that they have scheduled for
May 23, 2005 and with the public comment period, to end on 5 p.m. on May 27, 2005, as
originally noticed. Defendants shall consider all comments made in connection with the
proposed regulations as required by the APA. If defendants determine that modifications are
appropriate, then defendants shall comply with Government Code section 11346.8, subdivision
(c), and any other applicable law. Once defendants have satisfied any applicable APA
requirements for additional notice and comment, defendants shall prepare a Final Statement of
Reasons and submit the rulemaking file to the OAL as provided by Government Code section
11346.9.
4. Within 8 business days from the date that the Court “so orders” this Stipulation
and Settlement Agreement, the Department of Health Services shall mail a notice to those
interested persons to whom it originally sent notice of the hearing and comment period on the
Estate Recovery Regulations, R-32-00E. The notice shall reference this settlement and state that
the Estate Recovery Regulations, R-32-00E, shall not be applied until the conditions described in
paragraph 1 above have been satisfied. In addition, the Department of Health Services shall post
this information on its website.
5. Plaintiff shall file a request for dismissal of defendant Arnold Schwarzenegger
from the lawsuit within three court days from the date that it receives notice that the Court has
“so ordered” this Stipulation and Settlement Agreement.
6. This stipulation constitutes a settlement of disputed claims and its execution shall
not constitute the admission of any fact or claim or defense asserted in the Lawsuit.
7. The parties agree that this stipulation is the product of their mutual negotiation and
preparation and accordingly shall not be deemed to have been prepared or drafted by any party.
The parties further agree that any court seeking to interpret this stipulation should construe it as
the product of mutual negotiation and preparation.
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Stipulation and Settlement Agreement, CANHR v. Schwarzenegger, No. 05-440183Bw N
8. The parties agree that this document constitutes the sole, entire, and complete
agreement among the parties to resolve the Lawsuit.
9. This Stipulation and Settlement Agreement only shall be valid and enforceable if
it is “so ordered” by the Court. If the Court fails to “so order” the stipulation, then the parties
shall continue to litigate the Lawsuit as if this Stipulation and Settlement Agreement never
existed, and this Stipulation and Settlement Agreement shall not be admissible or cited for any
purpose either in this lawsuit or any other lawsuit.
10. Nothing in this Stipulation and Settlement Agreement shall modify the parties’
respective obligations under the permanent injunction entered in CANHR v. Bonta, Case No.
315107, in San Francisco Superior Court.
11. The Lawsuit only concerns the procedural aspects of the promulgation of Estate
Recovery Regulations, R-32-00E. Therefore, nothing in this Stipulation and Settlement
Agreement, or any judgment in this case, shall bind the parties or have preclusive effect with
respect to the positions that they may take on the substantive aspects of Estate Recovery
Regulations, R-32-00E.
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Stipulation and Settlement Agreement, CANHR v. Schwarzenegger, No. 05-440183Ceo ND WH BF WN
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12. This Stipulation and Settlement Agreement may be signed in counterparts.
13. The parties shall prepare a proposed form of judgment consistent with the terms
of this Stipulation and Settlement Agreement.
IT IS SO STIPULATED
Dated:
Patricia McGinnis
For: CALIFORNIA ADVOCATES FOR
NURSING HOME REFORM,
Plaintiff
Dated:
Amitai Schwartz
Counsel to CALIFORNIA ADVOCATES
FOR NURSING HOME REFORM,
Plaintiff
Dated: of Jo ss KZ 2
Stan Rosenstein
For: CALIFORNIA DEPARTMENT OF
HEALTH SERVICES
Defendant
Dated: 4/ 2z/os heyy AA
. rin S. Schwartz
Counsel to CALIFORNIA DEPARTMENT
OF HEALTH SERVICES, SANDRA
SHEWRY, and STAN ROSENSTEIN
Defendants
PURSUANT TO THE PARTIES’ STIPULATION, THE STIPULATION AND SETTLEMENT
IS APPROVED AND THE PARTIES ARE ORDERED TO COMPLY WITH ITS
PROVISIONS.
Dated: tp 7 oT LE
Judge of the Superior Court
SONALD EVANS QUIDAGT 2.9
4005749 1.wpd
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Stipulation and Settlement Agreement, CANHR v. Schwarzenegger, No. 05-44018312. This Stipulation and Settlement Agreement may be signed in counterparts.
13. The parties shall prepare a proposed form of judgment consistent with the terms
of this Stipulation and Settlement Agreement.
IT IS SO STIPULATED
Dated: Bathe Al, 2008 Ge th Seon
Patricia McGinnis \
For: CALIFORNIA ADVOCATES FOR
NURSING HOME REFORM,
Plaintiff
Dated: pak Al, aAcos fASw SA
Amitai Schwartz
Counsel to CALIFORNIA ADVOCATES
FOR NURSING HOME REFORM,
Plaintiff
Dated:
Stan Rosenstein
For: CALIFORNIA DEPARTMENT OF
HEALTH SERVICES
Defendant
Dated:
Karin S. Schwartz
Counsel to CALIFORNIA DEPARTMENT
OF HEALTH SERVICES, SANDRA
SHEWRY, and STAN ROSENSTEIN
Defendants
PURSUANT TO THE PARTIES’ STIPULATION, THE STIPULATION AND SETTLEMENT
IS APPROVED AND THE PARTIES ARE ORDERED TO COMPLY WITH ITS
PROVISIONS
. =)
\ C TR)
Dated:
Judge of the Superior Court
Paar ze PHY 01
Pye
40057491.wpd
5
Stipulation and Settlement Agreement, CANHR v. Schwarzenegger, No. 05-440183
Preview
IOUT San Francisco Superior Courts Information Technology Group Document Scanning Lead Sheet Apr-26-2005 11:51 am Case Number: CGC-05-440183 Filing Date: Apr-25-2005 11:49 Juke Box: 001 Image: 01185975 STIPULATION AND SETTLEMENT AGREEMENT LIFORNIA ADVOCATES FOR NURSING HOME REFORM VS. ARNOLD SCHWARZENEGC 001001185975 Instructions: Please place this sheet on top of the document to be scanned.An uw Fw N BILL LOCKYER Attorney General of the State of California DOUGLAS M. PRESS Supervising Deputy Attorney General KARIN S. SCHWARTZ, State Bar No. 209455 Deputy Attorney General F 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-1382 Fax: (415) 703-5480 ORIGINAL E San Francisco County Superior Court APR 2 5 2005 Attorneys for Defendants and Respondents GORDON PARK-L, Clerk BY: Nese —& Legos Deputy Clerk’ SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO CALIFORNIA ADVOCATES FOR NURSING HOME REFORM, Plaintiff and Petitioner, v. ARNOLD SCHWARZENEGGER, in his official capacity as Governor of the State of California; SANDRA SHEWRY, in her official capacity as Director of the California Department of Health Services; STAN ROSENSTEIN, in his official capacity as Deputy Director, Medical Care Services of the California Department of Health Services; the DEPARTMENT OF HEALTH SERVICES, and DOES 1-10, inclusive, Defendants and Respondents. CASE NO. 05-440183 STIPULATION AND SETTLEMENT AGREEMENT Dept: 301 Judge: The Honorable James L. Warren Action Filed: April 7, 2005 This Stipulation and Settlement Agreement is entered into by and between CALIFORNIA ADVOCATES FOR NURSING HOME REFORM £(plaintiff), on the one hand, and the CALIFORNIA DEPARTMENT OF HEALTH SERVICES, its Director, SANDRA SHEWRY, and STAN ROSENSTEIN (defendants), on the other hand, to fully resolve the issues in the case. Defendant ARNOLD SCHWARZENEGGER shall be dismissed from this case. // 1 Stipulation and Settlement Agreement, CANHR v. Schwarzenegger, No. 05-440183Co YN DAH FB WN 10 Hl 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCTION On April 7, 2005, plaintiff filed a Complaint for Declaratory and Injunctive Relief; Petition for Writ of Mandate (Complaint) against defendants in San Francisco County Superior Court, Case Number 05-440183 (Lawsuit). At issue is defendants’ promulgation of various regulations, entitled “Estate Recovery Regulations, R-32-00E,” to govern its Medi-Cal estate recovery program. Plaintiff challenges adoption of the regulations as “emergency regulations” because, according to plaintiff, no “emergency” exists within the meaning of Government Code section 11346.1 or Welfare and Institutions Code section 14043.75. Defendants deny that they have violated the Administrative Procedure Act (APA) as alleged in the Complaint. They contend that the regulations were properly adopted on an “emergency” basis in order to avoid the potential for fraud and abuse, to comply with the permanent injunction in CANHR v. Bonta, Case No. 315107, in San Francisco Superior Court, and to assist the State in meeting its obligations under state and federal laws applicable to estate recovery. To avoid the costs and uncertainty of litigation, the parties desire to settle, fully and finally, the Lawsuit. The parties therefore stipulate and agree as follows. TERMS 1. Defendants shall not apply the Estate Recovery Regulations, R-32-00E, and the regulations shall have no effect, until interested persons have had an opportunity to comment on them; defendants have considered those comments; defendants have made all modifications to the regulations that they deem appropriate; the rulemaking file has been submitted to the Office of Administrative Law (OAL), as set forth in Government Code sections 11346.8 and 11346.9; and the OAL has completed any review required under the applicable statutes. The intent of the parties is that the final Estate Recovery Regulations, R-32-00E, shall be effective in individual estate recovery cases only after they are finally adopted pursuant to paragraph 3. 2. Subject to paragraph 1, defendants shall continue the process for adoption of R- 32-00E, as previously approved by the OAL and filed with the Secretary of State on March 23, 2005, that it already has initiated. The parties agree that, with respect to R-32-00E, all 2 Stipulation and Settlement Agreement, CANHR v. Schwarzenegger, No. 05-440183provisions of the APA governing submission of the initial proposed regulations to the OAL through scheduling of a public hearing on the proposed regulations and solicitation of public comments have been satisfied. 3. Defendants shall proceed with the public hearing that they have scheduled for May 23, 2005 and with the public comment period, to end on 5 p.m. on May 27, 2005, as originally noticed. Defendants shall consider all comments made in connection with the proposed regulations as required by the APA. If defendants determine that modifications are appropriate, then defendants shall comply with Government Code section 11346.8, subdivision (c), and any other applicable law. Once defendants have satisfied any applicable APA requirements for additional notice and comment, defendants shall prepare a Final Statement of Reasons and submit the rulemaking file to the OAL as provided by Government Code section 11346.9. 4. Within 8 business days from the date that the Court “so orders” this Stipulation and Settlement Agreement, the Department of Health Services shall mail a notice to those interested persons to whom it originally sent notice of the hearing and comment period on the Estate Recovery Regulations, R-32-00E. The notice shall reference this settlement and state that the Estate Recovery Regulations, R-32-00E, shall not be applied until the conditions described in paragraph 1 above have been satisfied. In addition, the Department of Health Services shall post this information on its website. 5. Plaintiff shall file a request for dismissal of defendant Arnold Schwarzenegger from the lawsuit within three court days from the date that it receives notice that the Court has “so ordered” this Stipulation and Settlement Agreement. 6. This stipulation constitutes a settlement of disputed claims and its execution shall not constitute the admission of any fact or claim or defense asserted in the Lawsuit. 7. The parties agree that this stipulation is the product of their mutual negotiation and preparation and accordingly shall not be deemed to have been prepared or drafted by any party. The parties further agree that any court seeking to interpret this stipulation should construe it as the product of mutual negotiation and preparation. 3 Stipulation and Settlement Agreement, CANHR v. Schwarzenegger, No. 05-440183Bw N 8. The parties agree that this document constitutes the sole, entire, and complete agreement among the parties to resolve the Lawsuit. 9. This Stipulation and Settlement Agreement only shall be valid and enforceable if it is “so ordered” by the Court. If the Court fails to “so order” the stipulation, then the parties shall continue to litigate the Lawsuit as if this Stipulation and Settlement Agreement never existed, and this Stipulation and Settlement Agreement shall not be admissible or cited for any purpose either in this lawsuit or any other lawsuit. 10. Nothing in this Stipulation and Settlement Agreement shall modify the parties’ respective obligations under the permanent injunction entered in CANHR v. Bonta, Case No. 315107, in San Francisco Superior Court. 11. The Lawsuit only concerns the procedural aspects of the promulgation of Estate Recovery Regulations, R-32-00E. Therefore, nothing in this Stipulation and Settlement Agreement, or any judgment in this case, shall bind the parties or have preclusive effect with respect to the positions that they may take on the substantive aspects of Estate Recovery Regulations, R-32-00E. Hf / if // i it MW MW i i // // // 4 Stipulation and Settlement Agreement, CANHR v. Schwarzenegger, No. 05-440183Ceo ND WH BF WN RN BW N BY NN KN Ye ee ee we He _ & Yeh BOS FF Sew BDEBH eS S 12. This Stipulation and Settlement Agreement may be signed in counterparts. 13. The parties shall prepare a proposed form of judgment consistent with the terms of this Stipulation and Settlement Agreement. IT IS SO STIPULATED Dated: Patricia McGinnis For: CALIFORNIA ADVOCATES FOR NURSING HOME REFORM, Plaintiff Dated: Amitai Schwartz Counsel to CALIFORNIA ADVOCATES FOR NURSING HOME REFORM, Plaintiff Dated: of Jo ss KZ 2 Stan Rosenstein For: CALIFORNIA DEPARTMENT OF HEALTH SERVICES Defendant Dated: 4/ 2z/os heyy AA . rin S. Schwartz Counsel to CALIFORNIA DEPARTMENT OF HEALTH SERVICES, SANDRA SHEWRY, and STAN ROSENSTEIN Defendants PURSUANT TO THE PARTIES’ STIPULATION, THE STIPULATION AND SETTLEMENT IS APPROVED AND THE PARTIES ARE ORDERED TO COMPLY WITH ITS PROVISIONS. Dated: tp 7 oT LE Judge of the Superior Court SONALD EVANS QUIDAGT 2.9 4005749 1.wpd 5 Stipulation and Settlement Agreement, CANHR v. Schwarzenegger, No. 05-44018312. This Stipulation and Settlement Agreement may be signed in counterparts. 13. The parties shall prepare a proposed form of judgment consistent with the terms of this Stipulation and Settlement Agreement. IT IS SO STIPULATED Dated: Bathe Al, 2008 Ge th Seon Patricia McGinnis \ For: CALIFORNIA ADVOCATES FOR NURSING HOME REFORM, Plaintiff Dated: pak Al, aAcos fASw SA Amitai Schwartz Counsel to CALIFORNIA ADVOCATES FOR NURSING HOME REFORM, Plaintiff Dated: Stan Rosenstein For: CALIFORNIA DEPARTMENT OF HEALTH SERVICES Defendant Dated: Karin S. Schwartz Counsel to CALIFORNIA DEPARTMENT OF HEALTH SERVICES, SANDRA SHEWRY, and STAN ROSENSTEIN Defendants PURSUANT TO THE PARTIES’ STIPULATION, THE STIPULATION AND SETTLEMENT IS APPROVED AND THE PARTIES ARE ORDERED TO COMPLY WITH ITS PROVISIONS . =) \ C TR) Dated: Judge of the Superior Court Paar ze PHY 01 Pye 40057491.wpd 5 Stipulation and Settlement Agreement, CANHR v. Schwarzenegger, No. 05-440183