from reviewing the pleadings it's very important that you understand your honour's that these are profoundly disabled intellectually individuals and these are severely disabled individuals often in a physical sense to require constant care or twenty four hour supervision and sometimes even nursing care or constant help with feeding and so on these are not individuals we really that are all very you know let me ask you a procedural question front because it's my understanding north jersey has already closed this out right that is cracked or ha right and then woodbridge just is that scheduled to be closed it is scheduled to be closed i think within the next few months are and how many of your twenty clients that at the time the case was pleaded who were living it would bridge remain there presently i would estimate right now i don't have an exact count because the movement is ongoing but probably around fifteen right now presently ok so we're the kidney case revolves around what happens to those fifteen folks that are presently it would ridge that's correct are all the and you want you want us to enter an order requiring woodbridge to stay open no your honor we we are not seeking or that which w purchased specifically because you want in order that that the folks be transferred to other development centers as a as opposed to community you know community centers you've laid out i think in some detail your concerns and the family's concerns about the unit billy of your clients to be well appropriately taken care of in community centers be looking for a transfer order to the other development centers not necessarily or out of what we're looking for least restrictive environment they can meet their needs this is this is the challenge i've had because you take strong issue with the this record and with the state in fact you use language like this record repeatedly discharge or transfer them from their courtesans without meeting the requirements that and then you have a list of the requirements which are linked by other words all of these and one of them is the plaintiffs by their guardians or families wish to consent to such discharge or transfer so if it's not your position now can you at least acknowledge that it was your position then because it appears to be played in black and white in your complaint that it is a condition o and i apologize if the complaint was not maybe as artfully cut as what it should have been but that has never been our position from day one that we have said that they have absolute right to a particular institution but we have always argued and i think if you look at the rest of the play which i'm sure you have  what we have argued is instead they have certain rights before they can be transferred and those rights are that they have to have rationals the interdisciplinary team exercise their professional judgment and determine what is the least restrictive environment that can meet their needs and then also you have to weigh the consent of the individuals we've never also ever put in again if they are argued that the consent is an absolute veto power over never be a moved so i couldn't the state just  move your clients to other development centers then and and if if there are unhappy with those their families and guardians etc aren't happy with those development centers then they could take action to have them relocated to you know community centers or other appropriate places according to what the guardians and family members think is right for your honor and you are correct if our position is that they could move them to other developmental centers if they comply with their rights and they still  patients or the residents it or thursday where did they get the residence in north jersey someone to the community because they most of the ones that i know that went to community especially there was a couple of them if you have dropped out and i think you're still might see in a record remove their names they dropped out of the case because i think they felt worse that they would have services that then move and then some have been moved i believe principally the bottom line to the southern part of the state the state allowed those that wanted to stay  institution status that's what we're uncertain of your honor to this very day whether they're going to allow that to happen if you know it's not uncertain it happened did did the state allow the folks from from north jersey who wanted to stay in development centers to stay in development centers i believe your honor that all those people that some of them yes were allowed to stay and developmental centers but not all some some were forced out of development centers yes i was told you're not allowed to go to a development center i believe they were coerced into accepting another placement because and also because they were intimidated by the fact and discouraged by the fact that they would put their loved ones of people so far you've repeatedly in your briefing and here again walked away from what you pled because the pleading is clear you did say that in order to be moved there had to be consent but assuming you can walk away from  n why wouldn't you be satisfied if the offer were made plainly to you that those twenty residents or the fifteen who remain in woodbridge if they want to be in the developmental center they can be in development because your honor not owns the tissues are equal not all institutions are run the same way you would still need special judgement as to whether or not that alternative institution can meet the needs of those individuals i thought your answer was going to be that's on satisfactory because if i'm a guardian for a child or a relative and woodbridge is fifteen minutes from my house this is going to be a tremendous burden on me to drive two and a half hours to take care of them and visit  them that is correct rhonda but that's part of what should be considered by the interdisciplinary that's one of the evaluations or one of the inputs that should go into that decision making process as to whether or not it is an appropriate setting for them to be moved to whether their needs can be met there so logically in the end aren't you saying in fact you can't close woodbridge because there's not another institutional setting that will meet my client's needs no we are not saying that or i'm trying to understand what's the logical end of your argument the logical end of your argument is not they should be forced out of a development center and their other development centers it could go to that isn't the only conclusion left they have to be left in this development center this is where they have to be no i don't believe we reached that conclusion or that's what we motor argue at all your honor our position is again probably at best what we can do is possibly delay the closure of the state  intent on closing the facility we can possibly delay it some because they have to follow the rights of these individuals but they've got to go through the proper processes we believe has been recognized by homestead what this is a statutory it's get the statutory basis that you believe gives your clients that right it would be essentially your honor the provisions under the americans with disabilities act and section five before the rehabilitation act and then those interpretive regulations that have been promulgated so into that saying that you must put people in the least restrictive environment appropriate to the needs and the problem is what we have in the case of the state and the u s department just as you're going to hear from two is they sort of start at the end of least restrictive environment and they always interpret the community is the least restrictive environment it's appropriate to the needs that's why i don't see it was very clear that not everybody has to be forced out of institutions not everybody has to   might that might have weight if they're being forced out of the development centers into community into you know more liberal community centers i mean that seems obvious but as long as the state's willing to maintain them in development centers are you saying it's discriminatory to move someone from the woodbridge development center to the whatever other i think there are five others that right well it again your honor would depend on whether or not they were properly evaluated and whether or not it was determined that those but is there something different about i don't remember anything in your pleading that these development centers some of them are inadequate or they don't pry don't remember reading anything that said the other development center to which i personally understand your clients to be entitled to be transferred to are somehow unable or unwilling to meet their needs i understand that doesn't help me as a guardian if i have to drive to our right but now i  have i missed that have you pleaded something it says these other that i don't believe it was specifically played in the complaint but it was mentioned i had to touch upon and i think in our reply brief and we do point out that all institutions are not the same that some will actually have specialty units to care for certain conditions certain medical problems certain high level some have health care units almost like a hospital while other one stone doesn't know how link that up with any of the particular needs of your clients i don't see that in the record anywhere well your honor they haven't yet moved some of the clients that have not consented have not make worse than consenting but we believe that they will eventually move them to violent you talk about coersion and you talk about consent which seems fundamentally inconsistent with your substantive due process argument your subset of due process argument as i understand it is that these people are being in effect held in voluntarily in the sense that that they have no choice they are mentally incapable of of volunteering to stay here so they're kept there you know in a sense in voluntarily i understand substitute process me correctly yes i please so you're on so if your assertion is they're mentally incapable of choice how is the rhetoric of choice and coersion meaningful or helpful when we talk about these people that's a good question or honor and the reason why is i guess because i refer to the malls my clients and maybe i have to make sure it's clear the clients themselves the individuals who reside at the developmental centers are not capable of making those decisions it's then their guardians have to make those circumstances have to be when you got a loved one who's caught in the position that these folks are caught in with transitions being required but is it possible for subs  process rights to sort of leap out of the people who are being in custody as you described them to guardians and others in other words can the fact that you have clients who are guardians who feel upset because consent they are not consenting is that i mean anything in terms of whether the people who are actually in the institutions are there quote custody or mean i think that's an excellent question not no one's raised that before and i haven't really given it a great deal but i mean my initial gut reaction which has very little weight is yes i believe it could lead to the guardians and who else would represent their interests but i have not researched that your honor and i ruling and that's not what is called for and so where's the logical flaw in judge chester's conclusion that a statement that it's discriminatory not to allow people who want to go into communities we respectfully disagree that the factors were correctly applied i think i do think the you know this this case represents an inverse of the arms of facts however the main factors are that case the apply here and i think that the main point we have is that the professional treatment treating providers need to assess and give an opinion with respect to each of these individuals what's best suited for their needs and well being  to what in your record indicates that that's not being done we that's a fair point your honor but i would my position would be that there's nothing in the record that indicates that tha guardians need some advice as to whether their loved ones should be moved to a different development center or to be transitioned into the community center is that really what i point is that ideally the east of societies would stay open but since that is not going to be the case these individuals should have the utmost diligence with respect to a professional and the educate and their families be educated utmost ability so they are making the right program choices and figuring out what the least restrictive environment is for their needs and least restrictive i would argue that is presented by the government as always a community center setting which in a lot of these individual cases recently the community centers are less restrictive they might not be appropriate to the folks needs with they are less restrictive than the development centers that seems obvious and that's a fair point taking these restrictive at it's very you know it's face definition i would i think almost that looks at it more as least restrictive meaning intrusive on their livelihood their well being there are freedom of movement freedom movements i would disagree i believe owns that looks at a more like what is least restrictive in a sense means what is best for their wellbeing their day to day i don't know how you say that because because if if there are certain folks that are so  e of such an unsound mind that the most appropriate place for them is to be you know severely restricted so they don't hurt themselves but we wouldn't call environment i grew i call it a highly restrictive environment that's necessary or appropriate for their needs and i agree i've never quite understood your size efforts to equate least restrictive with best for my clients because those seem like two very different things to me don't i think we interpret it owns that as when they do when they were when they were saying least restrictive as what would be assessed by the professionals and also weighed in by the family as the best situation i guess an example would be you said earlier ideally a family wouldn't want their loved one too far away to me that's that fact is in the least restrictive you know mr bush you know  i know your you and your ization are very well motivated but it almost seems to me that were takes me back to my days of legislative hearings you know you're before a court but the judicial justiciable controversy your honor i would my response to that would be based on the on state case and some of the language you know instead reflects potential discrimination out of the a da for example and again that i think our position mainly is to ensure that these folks are getting the best care provision and their families voicing her screamin nation point and that's that's the that's the point the district court was getting i want to speak for my colleague cruz question that's a question he's asking as question i try to start with how is it an issue of discrimination and maybe you know there's a california case where they say maybe it's bad medicine maybe it's bad policy maybe it's misguided but it's not under the eighty eight or under the rehabilitation act or under almost its interpretation of i'm a matter of discrimination that's what that central district of california judge said for for a state to say you know we're making the community stuff the treatment option here because we're close in an institution so explain how that how that is an issue of discrimination under the statutes yes your honor if my response to that would be if as you as you your scenario if if the state were to say that all of these individuals must go to a community setting as my colleague did expounded on many of these people for valid profoundly disabled community setting would drastically affect their health their wellbeing i think in a sense those individuals or poor policy bad medicine and discrimination in other words the eighty eight by its terms by one of its sections terms was aimed at not segregating people which seems a distinct evil if you want to call it that from bad judgment about what's best for a medically for somebody to different problems both problems but different problems right at wholeheartedly agree with that and i do think the a d a s is a if i'm just i'm putting myself in the shoes of one of these guardians i you know someone says to me don't worry you'll be your loved one will be moved to another development center and then you know december twentieth rolls around and they s there aren't any beds i want to go to this community center down the road then i real problem on my hands right i don't think you would under the idea but before we get to that point the reason they are guarantee that is because that's what's happened today  we started with a practical question i understand it's outside the pleadings but my understanding is that there are approximately six individuals six points that are still left that would perhaps just fifteen not fifteen the ones that are transferred by and large have gone through other developmental centers so that is what happened what's happened already the ones who have gone community have consented to community placement so that's there's a judgment made by the treating team as to whether a person can be served in the community and there's the wishes of the person or the guardian as to whether they want to go there so those six what have has been that's occurred with discussion with the guardians because that's that's critical of what if if what we're talking about now is six people that's really the universe of folks that were left discussing i mean six residents recognize that there are other people out there guardians who are interested and you say three of them are scheduled to go to another development center and three of them to go into the community are you also telling us that the three that are going into the community are going into the community because that's a judgment that's been discussed within agreed to by the guardians and to the extent possible by the residents yes yes the first issue is whether they where they want to go where the guardians want them to go if they want to go to the community then there is an interactive process where that 's going to be it's a very involved process actually this is that raises a profound challenge for me anyway and that is what are we dealing with right here right now we dealing with the circumstance you're three people going to  development center and three people are going to think you know what's going in the community going by consent and we're really not arguing about life case and i think that's quite possible judge but we're here on a review of a motion grants motion it's ness so being provided as to whether a person can be served in the community or has to be served in an institution and beyond that it's the guardian's decision can you give us some education as to what what the nature of those disputes are i know it's it's took you to mean that you are providing them professional consultation of services but obviously the fact that mr york is here advocating on behalf of his clients there are unhappy with the nature of quality of those services can you i think they're unhappy with the fact that by and large treatment teams are finding that that people can be served in communities with the rights of points because i think for institutional care but that decision that opinion is being rendered right now what if let's let's focus on the six you said three you think were  recommended as appropriate for community placement what if a guardian disagrees with that recommendation to those three folks then have a right to be transferred into a development center already just say that they're there on the street well th proposed together to actually close all of the centers not that i'm aware of and the background of this was if the state was in the process the human services was in the process of closing a different center by now and while that was going on coersion argument if they're told which development center they have to go to and it might be the most remote or inconvenient that that could be coercive to cause somebody to keep a loved one closer by a community center and even though the loved one thinks that's not the right place i don't agree to be coercive they're given a choice to some extent but the reality is that the census is all of the centers all have  to say the state is never going to argue that but it's not arguing now that's not the issue now corrected ok so you agree that that's what the medicaid access that is what it says essentially if their position was look the states and the west were going to determine who's this market plies that they have acknowledged that they're leading that everybody will have that choice but but leaving that to the side for right now with what's your position those that's right and the reason for the city claim is because they think i wasn't a complaint that they begin being given the right to institutional services now if they had had a chance to weigh in with the district work perhaps they could have made the clarification the severe of physical and mental challenges that she's she's dealing with and they you know they talk about how she's go totally dependent upon stamp to complete all activities of  confined to an institution the standard is not whether their degree of disability renders them incapable of making decisions it's whether the state has taken an affirmative back to restrain them and that's clear from the cheney on down through precedent in this court and what this court has said is that no facts alleged that that these these people have been involuntarily confined in fact the relief they seek is to stay where they are which is utterly inconsistent with with a assumption of due process claim the relief their guardian please the court robert hot on behalf of the united states in this case the state of new jersey seeks to close to its seven state institutions and one of the questions presented by this appeal is whether the a t a i its integration mandate and the on state supreme court decision can be used to stop the state's efforts at integration the district court in this case correctly analyze and held that the answer is now as this court has this analyzed recognize this presents a difficult situation for many of the parents and guardians and family members in this case and they do have no avenues of recourse available to them this panel is just deciding whether the medicaid act and due process give them rights and what has been presented in this case and that's not at dispute is that they're also helen al recognized the focus of the eighty eight was integration the findings that congress made in passing the a t f i talked about the need to integrate the history of segregation and the integration  the preamble talked about the the need to integrate that integration was paramount and talked about the discrimination of segregation can you can you talk for a moment this is with all the players in here was assuming without deciding that there were rights and in addition it the focus of the court's holding talked about the fact that the settlement agreement in that case impacted in some way that individuals who were seeking to intervene and so they had a right to intervene because they were within that zone of interest it said nothing and made no thing with respect to whether they had specific legal rights that they could have brought him in specifically whether title two gave them legal rights explain we can call the facility they don't share any information with us and find out what the county is going to you know we've had clients come back we try to call them on a regular basis every one of them and get updates and there may be some that have moved are given up on the case or someone are very actually what you did allege was going on and i can read your language if you want what you allege what the treatment teams were giving advice that you thought was misguided it's not that there wasn't treated advice you didn't assertion and and he answer this if you can because this is going back to what i tried to to ask you before if the state says anybody who wants to be in an institutional setting we will put  institutional setting and we're and by their count we're down to three people who say they have and they've promised them that how is this case not moved well again your honor because it is not just  now you know that's hopeful if we do get a commitment that that is their position and i'm going to stick with the position that and the people will have the right to have a developmental center but we have not never assume that they are good as their words are just  need the sound evaluation of the team professionals determine if that institutional setting is the correct setting even and if assume that you get treated people in and said that it's not the right setting for him is then your argument well then they have to stay in woodbridge and we're back institutions see if they fit what the clients need see if they have adequate service to meet the client's needs that's correct i'm assuming they didn't would you have a right to make them provide those services in an institutional setting i believe they could be moved if they're going to be harmed and that's our position until another set in that weather where there will be harmed or even suffer death and that's what's going to result to some of these people if they are properly planned for a move to an appropriate location