or she lists all of the different forms of transition assistance that she thinks are part of th but the common questions i think if you're alluding to the ones at the bottom of pages forty four and forty five of the j are there deficiencies in the district's existing system of transition assistance if so what are those deficiencies and are the proven deficiencies causing unnecessary segregation we submit that those are not sufficient questions after wal mart in d l because is is are there deficiencies in existing system of transition assistance you have to figure out what the system a transition system is for that you then go to twelve forty eight and or property seven hundred forty eight and you understand the transition to transition assistan practice at the district in applying the money follows the person program thought eligibility started at one hundred eighty days rather than ninety that be a policy or practice that was capable of class wide consideration and classify pretty however what we have here is different district agencies that  if you have just dropped the ball copa cross the board on transition assistance there just wasn't enough let's just assume hypothetically it wasn't happening at all in any of the fourteen ways because you have a class action law that says you have no transitions assistance program going here you're supposed to and you don't and it's showing up in all these different corners without work yes there was the allegation in this complaint that the district provided assume that most governments are going to have abject failure to do anything and so if the argument is you've been engaged in substantial cross cutting neglect in this area you're not remotely doing it at the level the law requires you're not doing it categories because we need to know that can't be a class because we need to know the reasons that there is the fifty percent of you know your reasons when it's fifty percent failure but you don't know the reasons when it's one hundred percent is there is no suggestion that these claims can be litigated collectively in a productive fashion if the reason that fifty percent of these people are failed are for fourteen different underlying reasons wal mart says and d l says that there needs to be a common exam there isn't here fifty percent failure here is that you're you're only do one half the job you're supposed to be doing it's not a very different reasons for the the beneficiaries the reasons are you are going to do on your job you know two and a half days a week there are three ways in which we are alleged to be to be manifesting those problems are disparate and individualized to each of the pla such a way that there's not a common question capable of a common answer but beyond that the district court failed to grapple with the very real problem in our briefs and probably to discuss here which is that there is a significant causation question as to the class which defeats commonality is what the district court grapple five specific pieces of information so that kind of claim appropriate for class treatment i think it would be if there was a policy or practice or a failure to adopt a policy that disseminated information about the money follow the person program about the e p t waiver for example that could be can't be any class here at all or that there should be you can have class here just needs to be five or six there and doesn't sub classes i don't think the classes certified can stand i believe it's right but i haven't however i mean we're going to go back down for subclasses it could squarely for clothes for existing precedent we have here wal mart and d l i cannot submit enough d l is precisely the same type of class that was certified here and this court held it could not stand this court said the allegation that the district litigated could could require all of these things in the abstract maybe not from d c i haven't delved deeply enough into the each particular type of transition assistance that the plaintiffs are asking for here  settlement agreements and other things but it cannot be that just identifying fourteen different sets of transition assistance and saying some plaintiff may have not gotten one of these services and as a result they may or may not be in arrears and home that good morning your honour's i'm marjorie rifkin i'm here on behalf of hundreds of respondents who are unnecessarily segregated in nursing facilities who contend that the district fails to provide effective transition assistance to connect them to exist with disabilities act we have act mandates in this context i was operating differently from the id d l so that you have an appropriate class action here the entire group but you didn't explicit congressional finding that unjustified institutionalization of people with disabilities is a recognized form of discrimination different from d l they were asserting things that were wasn't there was a different this phrase in terms of terms of rights that people services of people are entitled to in order to have equal educational opportunity both statutes placed an affirmative duty on state and local governments that in that way they're similar in this case we have one statutory provision that one legal claim here one harm unnecessary segregation of the class members and we have we're seeking one system of transition assistance whereas in d l there were four separate provisions of the i d e a at issue for separate harms tracking but one might say there's just a level of generality issue articulated and you could have articulated the claim at the same level of generality that you have him in diyala and there's just a failure to have an appropriate child find process which breaks down into fourteen components just as you sa here you don't have transition assistance which breaks down into fourteen components how am i wrong well i think that i believe the court has said and then he added a different level of generality there could be commonality issues with any class depending on how you define it but here we have one unitary statutory provision we have a regulation that congress authorized the department of  justice to promulgated and we have supreme court guidance that says to states and local governments you have to provide services to people with disabilities in the most integrated settings to showing you their needs without a check he had one statutory provision to an answer i think in wal mart i mean i have to step back a second just to say that judge to bell absolutely followed both d l and wal mart she made the necessary factual finding she did a very rigorous analysis after two rounds of discovery after two and a half years of development on the record and she made the following three points doing or not doing they're not providing the basic three categories of transition assistance that people need in order to connect to the community based services  which exist in the district so one area one category of assistance would be to provide information about what the community based options are for people under the medicaid long term here system ok all of the name plaintiffs who are still in the nursing facilities we have for now who are still in the nursing facilities would benefit from updated information that information changes as you see in the two bills decision for example there was a waiting list for the biggest program of medicaid waiver community based services which no longer exists the steps for how to access the services have just changed and been updated which is periodically done i me applications for the benefits and services and for housing people need applications in order to secure opportunities for housing we're not asking the district to provide housing here as we've made very clear  but they do need the applications and help with filling them out and documenting what's necessary to complete those applications the third thing is they have to be assisted with terrible that would entail applications for subsidized housing for public housing more with the assistance until it would entail helping people actually complete the applications and secure the documentation that they need such as identification documents benefit statements and the like and so they would be actually assisted in the third category with connecting to community based providers who provide the medicaid long term care services in the district that our class members need and qualify for by virtue of the fact that they're in nursing facilities based on the same level of care criteria that the district applies to people seeking community based long term care medicaid services and what is commercial was connecting to mean in this context just describe the information that's necessary about the individual's needs to the agency and then arranging for the district is american to be different for different people no it's actually one process for one set of services that's not different for different people here we have which is the other distinction i would say from d l where there were discrete stages in a process in d l where someone went from being found to identify to evaluated to serve and here we have people who need the services as a whole it's a process it doesn't matter where you enter in and in the process so you know since you're doing so sense yes you're on but it's a class wide remedy here we're seeking development and implementation of a system of transition assistance that's actually how we first in our first complaint we framed the relief requested and judge chevelle asked us to be more explicit in breaking down specifically what the components would look like but obviously as you well know this precise terms of the remedy are not needed at the classification stage the district would be the one to shape the remedy in the present we have and the sure at this stage that there is a single remedy that would apply class wide and that's it's my instinct when i've read this is that i mean my questions reveal this that there are some some classes are more discrete specific types of assistance that can form the basis for class wide relief but my instinct when i hear failure or provide effective transition services after i read d l and while markets especially d l is that that's a level of generality that's a little bit too broad under d l so things we're struggling with which is the level of generality and how specific it needs to get and that's from i'm still struggling with that and i think it we're talking here about one into visible remedy one set persons who help you who give you the information hope you fill out the form get any documentation you need in the form and help you call email manoel contact way or getting more specific would be helpful to you in some sense although i think probably i understand why you would want to do that in that it gets also sounds a little more individualized which is a problem you're talking about class actions but in any event  breaking it down like that seems more manageable than failure to provide effective transition services which sounds very deal like that might up your question if i may just to briefly highlight a couple of the facts that judge whoville delved into in reaching her decision that we established commonality here judge  whoville found commonality based on the fact that consistently five to six hundred people in nursing facilities have expressed interest in community based alternatives or direct preference for community based alternatives she also established that the nursing facilities are consistently into in the district at ninety plus percent occupancy  district has over the past two years i believe reserved only one percent of its community based medicaid waiver slots for people in nursing facilities one is a program that the federal government has has offered to states and local governments to incentivize offering transitioning people out of institutions such as nursing facilities and the district health a lot of poor nursing facility residents for that program nearly two years ago but they only transitioned sixteen of the forty lottery winners who by the way had housing subsidies e people in the some classes as you know d l you've got a list of services why why why is it still one single class one single litigation in district court everybody gets to still be there  just sort of identify who needs what so why is that harder than doing this one class or i just don't know practically i thought i know it's easier for them to have some courses i don't know why it's harder for you i think practically speaking in this case people would end up being multiple so classes simultaneously because if they needed updated information on an ongoing basis for example if they needed updated they needed help with patients but then there would be new applications coming online for housing opportunities that might not have been in place when they initially thought the applications so if you it would be i wouldn't say totally manageable but difficult to manage i would think remedy with i mean some classes that were designed based on the remedy so you'd be splitting the different contracting the providers i guess and it seems unlikely to me that all of them have the same issues on that but you're telling me they do right there's this one or that we should think about it it was not to say not now not ever the answer was to say get more specific release i was contemplating the answer i think which proved to occur into my mind the difference there is that it's could be might look like at the beginning this is it he keeps evolving that isn't the meaning they look like they need help with filling out forms but then something could change quickly and then they would need someone to get them some updated information or maybe they would need housing effective transition assistance in violation of its affirmative duty under the a da to enable our class members to access those community based long term care services and  the necessary segregation that they're currently subjected to the the judge followed not only wal mart and d l here but she followed them and analyzed the carefully versus kitzhaber both of which in involved elements of the kinds of assistance that we're speaking of here in order to give people with disabilities the opportunity to live in and or work in more integrated settings than the institutionalized system they were in actually our class is more narrowly drawn than those classes because for example both well kenneth r and another case and b versus hey most involved both people in institutions and people in the community at risk of institutionalization here we don't have that issue we have a very narrowly defined to do and i thought you had some your name plaintiffs who are out to have concerns about re institutionalization well now we do but the class has defined does not for we have between five hundred and two thousand in our class as we estimate now in church you fell found in the in the statistics provided what we're talking about here is a class wide system based on class wide proof get proof of how people experience their nursing facility placement what is their experience with access to the community services that exist that they desperately need to access in order to move out that they can't just pick up the phone themselves most of them don't have phones in the  can't pick up the phone and call a provider because they don't know the providers exist they don't know about the services so what's the end game just give me a vision of what the end game lives in terms of what  on him in one individual who had to be found in a government office right but it's going to work better there so you know we grow each person has cameras possible for these hundred fifty or twenty five or speaking it's very ad hoc very few people are getting any of the assistance there is no proposed date or time when there might be another lottery housing subsidized housing for our clients is very much in dispute over the public housing authority here actually has six hundred fully wheelchair assessable public housing units but people need to apply in order to get those units there are a myriad other subsidized housing developments around town and the district itself as well pointed out controls fifteen hundred housing vouchers just within the human services agencies that are under the deputy mayor responsible also for overseeing the medicaid long term care program so there's a lot of tory review is that we recognise even in class actions the most efficient course it is to have litigation proceed and deal with things at the end unless there are truly exceptional reasons so you can't just be it's a class action  not a death knell if it's more efficient we'll do it just seems to me we were opening this court has said you know there's parsing and president of these are very narrow exacting categories and we are it will be very much the exception when review i don't believe you can just check a box and has some classes for all fourteen categories of transition assistance in the district court's opinion i think that there may very well be some subclasses that can be certified here but if this goes back to  says i need there's a group of people who needs help filling out the form and getting documentation i'm assuming there's a form and getting documentation that i suppose could be  classes and then find out of that was actually not really realistic either we think that in light of d l some classes are an option here whether they play out on the ground depending how places chooses to find them and how the district thinks they should be set up that is a question that will need to absolutely your honor there are social workers in the nursing homes or not district on their privately run but there are social workers there was this transition planning and then the district has social workers itself within the office of aging aging and disability rights center which provide these transition services that assist people defenses on the merits for why the district has an effective system of transition assistance and why it is working to transition people and i question whether transition services that they seek and they don't all fourteen don't have to qualify we just need i think the case laws is one