No. ____________

WAYNE NOVY, by and through § IN THE COUNTY COURT his legal guardian Forrest Novy, § Plaintiff, § § vs. § AT LAW NO. ____________ § TEXAS HEALTH AND HUMAN SERVICES § COMMISSION, and § KYLE L. JANEK, M.D., in his official § capacity as Executive Commissioner of the § Texas Health and Human Services § Commission, § Defendants, § TRAVIS COUNTY, TEXAS

ORIGINAL PETITION

Plaintiff files this original petition and would show the Court as follows:

Nature of suit

1. This is an appeal from an administrative decision upholding an agency decision to transfer a

resident, Wayne Novy, of the Austin State Supported Living Center (“ASSLC”) to the San An-

tonio State Supported Living Center (“SASSLC”). Timely filing of the appeal bars implementa-

tion of the administrative agency’s transfer decision pending final disposition of the appeal into

court. Trial is de novo.

Parties

Plaintiff

2. Plaintiff is Wayne Novy, a resident of the ASSLC, located at 2203 W 35th Street in Austin,

Texas 78703. He brings this action by and through his duly appointed legal guardian, Forrest No-

vy, who resides at 4712 Avenue G, Austin, Texas 78751.

C-1-CV-14-010055

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Filed: 10/28/2014 12:02:38 PMDana DeBeauvoir

Travis County Clerk C-1-CV-14-010055

Catherine Jones

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Defendants

3. Defendant Texas Health and Human Services Commission (“THHSC”) is an agency of the

State of Texas. Its headquarters are in Travis County at the Brown-Heatly Building, 4900 North

Lamar Boulevard, Austin, Texas 78751-2316.

4. Kyle L. Janek, M.D. (“Dr. Janek”), is the Executive Commissioner of THHSC, sued in his

official capacity only. His office is located at the THHSC headquarters, in the Brown-Heatly

Building, 4900 North Lamar Boulevard, Austin, Texas 78751-2316.

Venue

5. Venue is proper in Travis County under Tex. Health and Safety Code § 594.017(b).

Discovery track

6. This case should proceed on the Level 3 discovery track under Tex. R. Civ. Proc. 190.4.

Factual background to claims

7. Wayne Novy is 63 years old. He was born in Austin, Texas, at Seton Hospital. Later he

moved and, in 1958, became a resident of what was then known as the Denton State School (now

called the Denton State Supported Living Center) in Denton, Texas.

8. Mr. Novy is a person who has multiple, severe disabilities. He experienced them at birth, and

they have remained with him throughout his life. Among the disabilities with which he currently

must deal are autism syndrome, intellectual disabilities, profound deafness, osteoporosis, an un-

steady gait, and a disorder called pica, which involves ingestion of non-edible materials.

9. Mr. Novy’s parents, his principal family caregivers, lived in Dallas, Texas; they died in 2007.

10. At that point, Mr. Novy’s only surviving relative in the United States was his brother, For-

rest Novy (“Dr. Novy”), who has lived in Austin continuously since 1991. After the death of Mr.

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Novy’s parents, efforts then began to transfer Mr. Novy to Austin and the ASSLC so he could be

near Dr. Novy. The transfer came through in the summer of 2011, and Mr. Novy has resided in a

cottage—or home—at the ASSLC ever since.

11. The ASSLC and the SASSLC are facilities under the direction of the Texas Department of

Aging and Disability Services (“DADS”), which, in turn, is a department under the auspices of

the THHSC.

12. Dr. Novy lives less than five miles from Mr. Novy and visits him, often impromptu, several

times a month. In addition to being able to interact with his brother, these visits have allowed Dr.

Novy to get to know Mr. Novy’s daily caregivers at the ASSLC, which in turn facilitates the ex-

change of information beneficial to ensuring that Mr. Novy’s living arrangements are satisfactory

and his individual needs are being met.

13. Dr. Novy became Mr. Novy’s legal guardian—of the person, and with full authority—in July

2014. See In the Guardianship of Wayne Novy, an Incapacitated Person, Order Appointing Guardian

of the Person with Full Authority, July 24, 2014 (Probate Court No. 1, Travis County, Texas).

14. Toward the end of May, 2014, Dr. Novy had received a letter from a DADS Assistant

Commissioner, notifying him of plans to permanently close homes at the ASSLC. A week or so

later, on June 2, 2014, ASSLC’s Director sent Dr. Novy a follow-up letter, informing him that

seven ASSLC homes would be closed no later than September 15, 2014, with one of the homes

being No. 783, the one where Mr. Novy lives.

15. In June and July 2014, there was a series of meetings concerning a new placement for Mr.

Novy. Attending were an Interdisciplinary Team (“IDT”) associated with ASSLC, Dr. Novy,

and, at least once, Mr. Novy. Various community placement options, as well as state supported

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living center options were explored. Dr. Novy explored all of them and found none sufficient to

meet his brother’s needs. By the end of July, the IDT group had not reached consensus on a deci-

sion about a new placement.

16. On August 1, 2014, a Transfer Review Team (“TRT”) affiliated with the ASSLC convened

and determined that Mr. Novy would be transferred to San Antonio, to the SASSLC.

17. In a letter dated August 15, 2014, ASSLC’s Director officially notified Dr. Novy of the trans-

fer decision and the option of requesting an administrative hearing to “contest the proposed

transfer to” SASSLC. Dr. Novy duly contested the transfer decision.

18. THHSC convened the administrative hearing on the contest of Mr. Novy’s transfer on Sep-

tember 23, 2014. See In the Matter of the Appeal of Wayne Novy, No. 14-0644-K, Administrative

Order of August 25, 2014 (“THHSC Novy administrative proceeding”). Dr. Novy represented

his brother; an agency attorney represented DADS.

19. The THHSC Novy administrative proceeding was conducted under the provisions of Tex.

Health & Safety Code § 594.015. At the hearing, the issue was whether THHSC could establish

the facts necessary for a transfer, as required by Tex. Health & Safety Code §594.011.

20. In a ruling dated October 2, 2014, a THHSC Administrative Law Judge issued his decision

on the THHSC Novy administrative proceeding. See Decision on Proposal to Transfer Resident,

Oct. 2, 2014, In the Matter of the Appeal of Wayne Novy, No. 14-0644-K (“Oct. 2 ALJ Decision”).

Despite finding that it was not in Mr. Novy’s “best interest to be moved away from” Austin, see

Oct. 2 ALJ Decision at 2, it was ruled that the ASSLC “will not provide” Mr. Novy with services

appropriate to his needs, id. The administrative ruling concluded that ASSLC “acted appropri-

ately when it proposed the transfer” of Mr. Novy to SASSLC. Id. at 3.

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21. Under Tex. Health & Safety Code § 594.016(b), the Oct. 2 ALJ decision is not final until 31

days after it issues, and it is not final even then if an appeal is filed during that period. This origi-

nal petition constitutes the appeal specified in Section 594.016(b). It is filed before the 31st day

after the ALJ decision (which would be November 4, 2014), and, therefore, the ALJ decision is

not final. This appeal suspends the ALJ decision, and ASSLC (and, consequently, THHSC) are

barred from taking action on the decision. See Tex. Health & Safety Code § 594.016(c).

22. The Court must conduct a trial de novo on the issues raised by this appeal. See Tex. Health &

Safety Code § 594.017(c). Thus, the defendants must establish evidence sufficient to establish

that its proposed transfer of Mr. Novy from ASSLC to SASSLC meets the mandatory require-

ments of Tex. Health & Safety Code § 594.011. Until final disposition by the courts in their favor,

the defendants are obligated to maintain Mr. Novy at his current residence at the ASSLC.

23. The defendants cannot establish facts sufficient to satisfy the requirements of Tex. Health &

Safety Code § 594.011. THHSC has acted contrary to law in determining otherwise in the

THHSC Novy administrative proceeding, and Dr. Janek has acted ultra vires in connection with

such determination.

24. THHSC cannot establish that there are any community placements in the Austin area that

are appropriate for Mr. Novy; THHSC cannot establish that the SASSLC is an appropriate

placement for Mr. Novy; THHSC cannot establish that the current ASSLC placement is an in-

appropriate one for Mr. Novy; and THHSC cannot establish that any available community

placements in the Austin area or the SASSLC would provide placements superior to Mr. Novy’s

current ASSLC placement.

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Claim: Tex. Health & Safety Code § 594.011

25. Defendants THHSC and Dr. Janek, in their proposal to transfer Mr. Novy from the ASSLC

to the SASSLC, are violating Section 594.011 of the Texas Health and Safety Code; they lack suf-

ficient facts to meet the statutory prerequisites for transfer.

Relief requested

26. Based upon the foregoing matters, facts, and claims, Wayne Novy prays as follows:

a. that his current residence at the ASSLC be maintained, and appropriate care provided, during pendency of this action;

b. that this matter be heard by trial de novo, with no deference owed to the Oct. 2 ALJ Deci-

sion; c. that, upon conclusion of the required trial de novo, the Court determine that the defend-

ants have failed to satisfy the statutory prerequisites for his transfer from the ASSLC to the SASSLC; and

d. for such other and further relief, including costs, as the Court determines are reasonable

and appropriate.

Respectfully submitted,

__________________________________ Renea Hicks Attorney at Law Texas Bar No. 09580400 LAW OFFICE OF MAX RENEA HICKS 101 West 6th Street Austin, Texas 78701 (512) 480-8231 fax (512) 480-9105 rhicks@renea-hicks.com ATTORNEY FOR PLAINTIFF WAYNE NOVY