Wayne Novy, by and Through His Legal Guardian Forrest Novy v. Texas Health and Human Services Commission And Chris Traylor, in His Official Capacity as Executive Commissioner of the Texas Health and Human Services Commission

ACCEPTED 03-15-00201-CV 6482860 THIRD COURT OF APPEALS AUSTIN, TEXAS 8/13/2015 12:45:09 PM JEFFREY D. KYLE CLERK No. 03-15-00201-CV _______________________________________ FILED IN 3rd COURT OF APPEALS IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS AT AUSTIN, TEXAS 8/13/2015 12:45:09 PM JEFFREY D. KYLE _______________________________________ Clerk WAYNE NOVY, by and through his legal guardian Forrest Novy, Appellant, vs. TEXAS HEALTH AND HUMAN SERVICES COMMISSION and KYLE JANEK, in his official capacity as Executive Commissioner of the Texas Health and Human Services Commission, Appellees. _______________________________________ ON APPEAL FROM COUNTY COURT AT LAW NO. 1, TRAVIS COUNTY ______________________________________ JOINT MOTION BY ALL PARTIES TO ABATE APPELLATE PROCEEDINGS The parties to this appeal—Appellant Wayne Novy (“Mr. Novy”), by and through his legal guardian Forrest Novy, and Appellees Texas Health and Human Services Commission (“THHSC”) and Chris Traylor, THHSC Executive Commissioner of *—jointly move the Court to abate proceedings in this case, as set forth below. * Under Tex. R. App. Proc. 7.2(a), Chris Traylor, the current THHSC Executive Com- missioner should be substituted as a party for Kyle Janek, the former THHSC Executive Commissioner. 1 1. The substantive issue in the legal dispute before the court below is whether a 2014 decision to transfer Mr. Novy—termed here the “2014 transfer decision”—from his current residence at the Austin State Support- ed Living Center (“Austin center”) to the San Antonio State Supported Liv- ing Center (“San Antonio center”) was legally valid. 2. Home 282 at the Austin center is where Mr. Novy currently resides. 3. The 2014 transfer decision is under reevaluation at this time. At- tached and incorporated herein is correspondence dated August 5, 2015, from Commissioner Traylor (sometimes, “Traylor August 5th letter”) to the head of the Family/Guardian Association for residents of the Austin center. The effect of this letter is that closure of the Austin center’s home 282, where Mr. Novy resides, is “temporarily halt[ed]” and that, for the time be- ing, there is no “need for any [Austin center] residents to transition off cam- pus.” 4. The letter goes on to state that, in ninety days, the agency will evalu- ate the impact of the actions it outlines and then “weigh whether or not the closure of home 782 is still necessary.” 5. All the parties to this appeal agree that, in light of the Traylor August 5th letter, it would serve the interests of justice and promote judicial economy 2 for this Court to abate all further proceedings in this appeal for 120 days in order to allow time for the agency evaluation outlined in the letter to be completed and for those affected by the reevaluation to be notified of the re- sult of that reevaluation. Thus, they jointly urge the Court to enter an order granting relief to that effect, as outlined in ¶ 6, below. 6. It is urged by all parties that the Court enter an abatement order as follows: a. Abate this appeal for all purposes until 120 days from entry of the abatement order or until the parties jointly move the lift the abatement order, whichever is earlier; and b. As part of the abatement order, extend the deadline for filing of Appellant’s opening brief from the current deadline of Au- gust 21, 2015, until a date no earlier than 10 days after lifting of the abatement order under ¶ 6.a, above, unless the parties jointly submit that the controversy between them is moot. 7. In light of the pending deadline for Appellant’s opening brief, the parties jointly urge the Court to act on this motion as promptly as reasonably possible. Wherefore, based on the foregoing matters, the parties to this appeal jointly urge the Court to grant this Joint Motion by All Parties to Abate Ap- pellate Proceedings. 3 Respectfully submitted, __/s/ Renea Hicks______ Renea Hicks State Bar No. 09580400 LAW OFFICE OF MAX RENEA HICKS 101 West 6th Street, Suite 504 Austin, Texas 78701-2934 (512) 480-8231 (512) 480-9105 fax rhicks@renea-hicks.com ATTORNEY FOR APPELLANT __/s/ Eugene A. Clayborn______ EUGENE A. CLAYBORN State Bar No.: 00785767 Assistant Attorney General Deputy Chief, Administrative Law Divi- sion O FFICE OF THE A TTORNEY G ENERAL OF T EXAS P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 Telephone: (512) 475-3204 Facsimile: (512) 320-0167 eugene.clayborn@texasattorneygeneral.gov ATTORNEY FOR APPELLEES 4 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this Joint Motion by All Parties to Abate Appellate Proceedings has been served through the elec- tronic filing system on the following counsel of record for the appellees on August 13, 2015: Eugene A. Clayborn, Assistant Attorney General Deputy Chief, Administrative Law Division OFFICE OF THE ATTORNEY GENERAL OF TEXAS P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 eugene.clayborn@texasattorneygeneral.gov. _/s/ Renea Hicks___________ Renea Hicks 5 TEXAS HEALTH AND HUMAN SERVICES COMMISSION Cl-IRIS TRAYLOR ExECUTIVE COMMISSIONER August 5,2015 Ms. Nona Rogers 5308 Gladstone Dr. Austin, Texas 78723 RE: Austin State Supported Living Center Dear Ms. Rogers: Thank you for arranging for members of the Austin State Supported Living Center Family/Guardian Association to meet with me and share their perspectives regarding the home closures at the Austin State Supported Living Center (SSLC). Although I am aware of the challenges families face when making these difficult decisions for their loved ones, it is always helpful to hear directly from those affected by our decisions. As we discussed in our meeting, reducing the number of residents served in Austin has decreased how often staff have had to work double shifts and long shifts. The census reduction also has allowed us to reduce overtime, despite having fewer staff members employed at the center. Active treatment and regulatory compliance have improved, and the Department of Justice independent monitors have noted that residents are now receiving higher quality services. Our staffing levels have not stabilized, and we are still examining whether the center’s improvements can be sustained. Three homes identified for closure remain open homes 782, 784, and 789. Given that, we plan to offer the two men residing in home 784 the opportunity to move to home 782. We also will offer the two women residing in home 789 the opportunity to move to other homes at the center, and we will temporarily halt the closure of home 782, allowing residents there to remain at the Austin SSLC for now. These steps will allow us to close homes 784 and 789 without the need for any residents to transition off campus. In 90 days, we will examine the impact of our staff recruiting efforts, our continued training and work with staff, and the impact of the two home closures above. At that time, we will weigh whether or not the closure of home 782 is still necessary. P.O. Box 13247 • Austin, Texas 78711 • 4900 North Lamar, Austin, Texas 78751 • (512)424-6500 Ms. Nona Rogers August 5, 2015 Page 2 I encourage you to continue to work with Laura Cazabon-Braly. Director of the Austin SSLC. if you or any of your members have specific concerns related to the care and treatment your loved ones receive at the center. Additionally, you can contact Scott Schalchlin, Assistant Commissioner for the SSLCs, by phone at (512) 438-3076 or by email at Scott.Schalchlin@dads.state.tx.us. Thank you for your ongoing advocacy for the residents at the Austin SSLC, and I look forward to continuing our dialogue about how we can best serve them. Chris Traylor