Case: 2:16-cv-00282-EAS-EPD Doc #: 1 Filed: 03/31/16 Page: 1 of 62 PAGEID #: 1

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

Phyllis Ball, by her General Guardian, Phyllis Burba,
Antonio Butler, individually
Caryl Mason, by her Next Friend Cathy Mason-Jordan
Richard Walters, by his Next Friend Linda Walters
Nathan Narowitz, individually
Ross Hamilton, by his Next Friend Sherry Hamilton
and
The Ability Center of Greater Toledo, in its organizational and representative capacity,
Plaintiffs,
v.
John Kasich, Governor of Ohio, in his official capacity,
John Martin, Director of the Ohio Department of Developmental Disabilities, in his official capacity,
John McCarthy, Director of the Ohio Department of Medicaid, in his official capacity,
and

: : Case No.: 2:16-cv-282 :
Judge: : : Magistrate Judge: : :
CLASS ACTION COMPLAINT : : : : : : : : : : : : : :

Case: 2:16-cv-00282-EAS-EPD Doc #: 1 Filed: 03/31/16 Page: 2 of 62 PAGEID #: 2

Kevin Miller, Director of Opportunities

:

for Ohioans with Disabilities, in his

official capacity,

:

: Defendants.
:

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I. INTRODUCTION 1. Plaintiffs Phyllis Ball, Antonio Butler, Caryl Mason, Richard Walters, Nathan
Narowitz, and Ross Hamilton (hereafter “Individual Plaintiffs”) are adults with intellectual and developmental disabilities who are institutionalized, or at serious risk of institutionalization, in Intermediate Care Facilities for Individuals with Intellectual Disabilities with eight or more beds (“large ICFs”) throughout Ohio. Each of the Individual Plaintiffs would prefer to reside in an integrated, community-based setting and receive integrated, community-based employment or day services. Each is qualified for such services and would be able to live, work, and spend his or her time in the community with appropriate, individualized support. However, due to the Defendants’ administration, management, and funding of Ohio’s service system for people with intellectual and developmental disabilities, they are experiencing or at serious risk of experiencing pervasive and widespread isolation and segregation in violation of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132 et seq., Section 504 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 794 et seq., the United States Supreme Court’s landmark decision in Olmstead v. L.C., 527 U.S. 581 (1999), and the Social Security Act, 42 U.S.C. § 1396n(c)(2)(B)&(C).
2. The six Individual Plaintiffs are part of a class of approximately 27,800 similarlysituated adults with intellectual and developmental disabilities throughout Ohio (“Ohio” or “the State”) who are needlessly institutionalized in publicly- and privately-operated large ICFs or are at serious risk of institutionalization because of systemic limitations on access to integrated, home and community-based services. By virtue of where they live and spend their day, they are isolated from their communities and denied meaningful opportunities to interact with their nondisabled peers.
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3. Plaintiff, the Ability Center of Greater Toledo, also joins this suit on its own behalf as an organization that has suffered specific economic injury as a result of the Defendants’ unlawful service system, and on behalf of its constituents who include people with intellectual and developmental disabilities currently institutionalized in large ICFs or at serious risk of institutionalization in these facilities.
4. Large ICFs, which are facilities with eight or more beds, share a common design, funding stream, and operational model that reflects their institutional character and perpetuates ongoing segregation. Once admitted to a large ICF, people quickly become isolated from their families, friends, and communities. Most have little or no contact with their non-disabled peers. Their lives are highly regimented and controlled, with little privacy, independence, or personal autonomy.
5. By virtue of their discriminatory institutionalization, the Individual Plaintiffs in large ICFs and thousands of other similarly-situated Medicaid-eligible adults with intellectual and developmental disabilities are denied access to integrated employment and day services. They have little or no choice but to spend their days in segregated, facility-based sheltered workshops where they perform routinized, repetitive manual tasks, usually for less than minimum wage, or in equally segregated day programs, where they are deprived of meaningful community interactions and experiences consistent with their unique abilities, skills, and preferences. The lack of access to integrated employment at competitive pay, in particular, deprives them of the dignity that comes with work and the autonomy and self-sufficiency that comes with financial resources.
6. Once in the ICF system, people often remain institutionalized indefinitely. There are approximately 5,800 people in the State’s vast network of publicly- and privately-operated
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large ICFs. Of these, approximately 2,500 individuals are on waiting lists for home and community-based services. Yet the median wait time for people in ICFs to access these services is 13 years. This prolonged segregation results from the Defendants’ failure to develop an adequate home and community-based system.
7. Over 40,000 people with intellectual and developmental disabilities are on waiting lists for home and community-based waiver services throughout Ohio, including 22,000 people who live in the community, but have immediate, unmet service needs, such as inadequate residential supports and aging primary caregivers. These individuals are at serious risk of institutionalization in the large ICF system because of insufficient access to integrated home and community-based services.
8. The Defendants acknowledge in state budget filings that Ohio’s ICF “footprint is one of the largest in the United States.” Yet in direct opposition to the national trend away from institutional care, Ohio continues to maintain and invest in segregated settings for people with intellectual and developmental disabilities.
9. Despite their continued overreliance on large ICFs, the Defendants have the capacity to deliver integrated, community-based residential, employment, and day services to people with intellectual and developmental disabilities. By expanding the existing home and community-based service system and increasing access to integrated service options, the Defendants can remedy and prevent the unnecessary institutionalization and segregation of the Individual Plaintiffs and the members of the Plaintiff class.
10. In fact, the Defendants have publicly recognized the need to rebalance Ohio’s service system and to provide greater access to home and community-based service options for people with intellectual and developmental disabilities. Yet they have failed to make the
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requisite administrative and budgetary changes necessary to remedy and prevent the unnecessary and discriminatory segregation of the members of the Plaintiff class. As a result, the promise of meaningful community integration for these class members remains unrealized.
11. The Defendants’ administration of the service system for people with intellectual and developmental disabilities causes the Individual Plaintiffs and the members of the Plaintiff class to be segregated in the places where they live, work, and spend their days, or causes them to be at serious risk of segregation. This common injury arises out of the planning, funding, administrative, and policy decisions that drive the Defendants’ operation of the service system for people with intellectual and developmental disabilities and, specifically, their failure to provide the integrated, community-based services needed to remedy and prevent the unnecessary institutionalization and discriminatory segregation of the Individual Plaintiffs and the members of the Plaintiff class.
12. By their actions and inactions, the Defendants have harmed the Individual Plaintiffs and the members of the Plaintiff class as a whole, perpetuating their segregation or causing them to be at serious risk of segregation in violation of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132 et seq., Section 504 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 794, et seq., and the Social Security Act, 42 U.S.C. § 1396n(c)(2)(B)&(C), entitling them to class-wide injunctive and declaratory relief. Through this action, the Individual Plaintiffs and the members of the Plaintiff class seek injunctive and declaratory relief for the Defendants’ ongoing violation of the ADA, the Rehabilitation Act, and the Social Security Act. They seek an order from this Court directing the Defendants to remedy and prevent their unnecessary institutionalization and discriminatory segregation and provide them with integrated, community-based services as required by federal law.
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II. JURISDICTION AND VENUE 13. This action is brought pursuant to Title II of the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12132 et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Social Security Act, 42 U.S.C. § 1396n(c)(2)(B)&(C). This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343.
14. The Individual Plaintiffs’ claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, 42 U.S.C. § 12133, 29 U.S.C. § 794a, and 42 U.S.C. § 1983, and by Rules 57 and 65 of the Federal Rules of Civil Procedure.
15. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) because a substantial part of the acts and omissions giving rise to the claims occurred in the Southern District of Ohio. III. PARTIES
A. Individual Plaintiffs Phyllis Ball 16. Phyllis Ball is an outgoing 49-year-old woman who resides in a 12-bed ICF in Hillsboro. She brings this action through her general guardian and mother, Phyllis Burba. 17. Despite her desire to live in the community, Ms. Ball has lived in the ICF for nearly 20 years. The facility sits directly in front of another ICF, adjacent to a nursing facility. 18. Ms. Ball lived at home in the community with her mother and stepfather until the summer of 1998. After her stepfather experienced health problems, her parents became concerned about their ability to continue providing physical care to Ms. Ball. Because of the manner in which the Defendants administer and fund the service system in Ohio and the consequent lack of available home and community-based services, her family had no choice but to place Ms. Ball in her current ICF. Moreover, after admission to the ICF, she and her family
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were merely informed that she could place herself on a waiting list for home and communitybased waiver services.
19. Ms. Ball is eligible for Medicaid and has been determined to meet the level of care necessary to receive either ICF or home and community-based services. Her diagnoses include intellectual disability, cerebral palsy, spastic quadriplegia, asthma, and seizure disorder. She uses a power wheelchair for mobility, and requires assistance with activities of daily living, such as eating, dressing, and preparing her medications and meals. She is non-verbal and uses sounds, gestures, facial expressions, and a communication device to communicate.
20. At the ICF, Ms. Ball has limited control over her choices, movement, and privacy. Ms. Ball uses a power wheelchair, but ICF staff have on several occasions turned off her wheelchair as punishment. ICF staff has opened and read Ms. Ball’s mail in the past. The ICF even sometimes limits her ability to spend time alone in her own bedroom watching television or listening to music.
21. Ms. Ball makes friends easily, and enjoys participating in activities in the community, such as shopping and dining out. However, the ICF offers very few recreational outings. It is very rare that residents at Ms. Ball’s ICF are transported to any activities.
22. Ms. Ball attends a sheltered workshop in Hillsboro, Monday through Friday from approximately 8 am to 2 pm. She is among an estimated 95 people with disabilities who spend their days at this sheltered workshop. They have limited, if any, contact with nondisabled people other than paid workshop staff. Currently, Ms. Ball is not participating in paid work at the sheltered workshop. Instead, she participates in arts and crafts activities in the facility building and spends the rest of her time at the ICF.
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23. Ms. Ball wants to meet other people and earn wages to enjoy everyday activities like shopping and attending social events. She previously volunteered at a library, and she becomes excited and animated when work and community activities are discussed. She is not receiving vocational rehabilitation services and does not have opportunities to work in the community with the services and support she would need.
24. Ms. Ball wishes to and would be able to live and spend her time in the community with appropriate services and supports. However, the Defendants’ administration, planning, and funding of the service system for people with intellectual and developmental disabilities denies her these opportunities, while subjecting her to continued discriminatory segregation.
Antonio Butler 25. Antonio Butler is a polite and charismatic 41-year-old man who resides in an eight-bed ICF in Geneva. Mr. Butler has a very small bedroom at the ICF, where he lives upstairs with seven other men with developmental disabilities. Downstairs in the same building is another ICF, and next door is an administrative office building for the ICF provider. The doors to the ICF are kept locked, and food in the kitchen is also locked away. Because Mr. Butler does not have a key, he cannot enter his home or even eat a snack without requesting assistance from ICF staff. It is difficult for Mr. Butler to engage in activities that interest him while living at the ICF. Because of the lack of individualized services, Mr. Butler is frequently bored at the ICF, and residents often fight because everyone is bored. 26. Mr. Butler is highly motivated to live in his own apartment and to be competitively employed in the community. Despite his preference for integrated community living, Mr. Butler has spent the last 18 years of his life in various ICFs. Mr. Butler first unsuccessfully requested home and community-based waiver services in 1995, so he has spent the last 20 years on a waiting list for home and community-based waiver services. A lack of
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access to integrated residential, employment, and day services have left him few options other than the ICF system. He does not recall receiving any information regarding home and community-based services as an alternative to institutional care.
27. Mr. Butler is eligible for Medicaid and has been determined to have service needs that meet the level of care necessary to receive either ICF or home and community-based services. He is diagnosed with a mild intellectual disability, fetal alcohol syndrome, bipolar disorder, and unilateral hearing loss. Mr. Butler is independent in most activities of daily living, and is able to communicate his needs and preferences, including his long-standing desire to work in the community. Mr. Butler would benefit from assistance with transportation, and skills training to increase his independence with cooking, cleaning, financial management, and selfmedication.
28. Each weekday, Mr. Butler works at the local sheltered workshop in Geneva, which is operated by his ICF provider. The building is set up with cafeteria-style tables where individuals do repetitive tasks. Assuming work is even available under the contracts the sheltered workshop holds at any given time, Mr. Butler may perform rote tasks, like light assembly and finishing, for which he receives less than minimum wage. Mr. Butler does not like making parts over and over again for little money. When no work is available, he and other participants engage in arts and crafts activities or board games. Opportunities for outings outside the sheltered workshop are very limited. In this workshop setting, Mr. Butler has no contact with non-disabled individuals other than paid sheltered workshop staff. He has little choice in the tasks he performs, because the scope of work is dependent upon provider contracts, not individuals’ personal employment goals or interests. As a result, these activities are neither consistent with his interests, nor helpful in advancing his goals for community independence.
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29. Mr. Butler has consistently sought help to obtain competitive employment. He has worked in several integrated settings in the past, including McDonald’s, Goodwill, a nursing facility, and a nursery. He applied for services from the Bureau of Vocational Rehabilitation, part of Opportunities for Ohioans with Disabilities (OOD), but he is not currently receiving any vocational rehabilitation services. In spite of his demonstrated abilities, and his expressed preference for integrated community employment, Mr. Butler remains in a sheltered workshop setting with no access to vocational rehabilitation or other integrated employment services.
30. Mr. Butler wants the opportunity to work competitively in the community. He enjoys dining out, shopping, and other activities that require access to money. Without a job or the financial resources that come with employment, Mr. Butler has little structure in his day, limited opportunities to improve his money management and budgeting skills, and few opportunities to engage in the integrated, community-based activities he enjoys.
31. Mr. Butler wants to move out of the ICF and to live more independently. In 2013, Mr. Butler applied for the HOME Choice program, which is intended to transition eligible Ohioans from institutional settings to home and community-based settings. However, the integrated home and community-based waiver services Mr. Butler needs to transition from the ICF were not readily available and, as a result, the State denied his HOME Choice application.
32. Mr. Butler is qualified for, and capable of residing in, a more integrated setting. With access to integrated residential, employment, and day services, Mr. Butler could live, work and spend his days in his chosen community, pursuing his personal goals and engaging in activities that are meaningful to him. The Defendants’ administration, planning, and funding of the service system for people with intellectual and developmental disabilities continue to deny him these opportunities while perpetuating his long-standing, discriminatory segregation.
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Caryl Mason 33. Caryl Mason is a sociable 46-year-old woman who enjoys spending time with family and friends. She brings this action through her next friend, Cathy Mason-Jordan, her sister and guardian of her person. 34. Ms. Mason is eligible for Medicaid and has been determined to have service needs that meet the level of care necessary to receive either ICF or home and community-based services. She is non-verbal, but she uses sounds, gestures, and limited sign language to communicate. She is able to ambulate independently with monitoring, but requires assistance or supervision with most of her daily care needs. At a young age, Ms. Mason was diagnosed with a severe intellectual disability, cri-du-chat syndrome, and mild microcephaly. She also has a degenerative joint disease and mild to moderate hearing loss. 35. Ms. Mason has spent most of her life in institutional settings, having resided for decades in Ohio’s state-operated large ICFs, also known as developmental centers. For the last eight years, she has lived in an eight-bed ICF in Columbus. The ICF is not a home-like environment. Its interior contains several staff bulletin boards for posting work-related information (like an “Employee of the Month” display and staff policies), as well as an exit door with an illuminated exit sign above it. A “wet floor” sign is stationed on the floor after staff cleans. The facility also contains two offices for staff, “Do not change 72 degrees” is written in black marker on the thermostat, and there is a “visitor sign out/sign in” logbook maintained at the entrance of the facility in a plastic container. 36. By virtue of her ICF placement, Ms. Mason has very few opportunities to spend time in the community, which she enjoys doing. Individuals at the ICF infrequently go on community outings. She has little or no contact with her non-disabled peers other than paid staff and immediate family. Activities at the ICF are rare. When they do occur, they are planned by
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ICF staff and not tailored to Ms. Mason’s individual goals or interests. Instead, she is often left to watch television, an activity she does not enjoy, or to sit alone on the porch.
37. Ms. Mason attends a facility-based day program in Columbus that serves over 100 others with developmental disabilities. There, she takes part in a sensory integration program and pre-planned, non-employment activities determined by the day service provider. Her ability to engage in these activities and express her needs and preferences to staff and participants is impaired by a lack of assistive technology or adaptive communication strategies. Ms. Mason spends five days a week, six hours a day in this facility-based setting with little, if any, direct community involvement. The day program rarely takes individuals like Ms. Mason out into the community for outings or integrated activities.
38. Ms. Mason enjoys recycling, gardening, and socializing in the community, but she has limited opportunities to pursue these interests or to develop other skills which could increase her independence. She has no access to vocational rehabilitation or other integrated employment services.
39. Ms. Mason-Jordan wants her sister to live outside of the ICF system and to spend her days involved in the community-based activities she enjoys. Ms. Mason-Jordan believes that her sister would prefer opportunities for integrated residential, day, and employment services.
40. Unfortunately, Ms. Mason does not have access to the services required to facilitate her transition from an institutional setting. Instead, she has spent the last 14 years on a waiting list for home and community-based services. She and her family have been not been informed about alternatives to institutional care available through the State’s home and community-based waiver programs. Through their administration, planning, and funding of the service system for people with intellectual and developmental disabilities, the Defendants
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continue to deny Ms. Mason the opportunity to leave the overly-restrictive large ICF system and put an end to her lifetime of discriminatory segregation.
Richard Walters 41. Richard Walters is a 62-year-old man who resides in an eight-bed ICF in Marietta. He brings this action through his next friend, Linda Walters. Ms. Walters is his sister and guardian of his person. 42. Mr. Walters is eligible for Medicaid and has been determined to meet the level of care to be eligible for either ICF or home and community-based services. He is diagnosed with a moderate intellectual disability, traumatic brain injury, edema, mood disorder, and right side paralysis. 43. Though Mr. Walters has previously lived in the community with the support of waiver services, for almost four years he has been stuck in his present ICF. At this ICF, Mr. Walters has little freedom to determine the scheduling of his day or activities. Residents typically eat meals together and go on all outings together. During meals, Mr. Walters does not even have a choice about where he sits. He enjoys going on outings and dining out, yet rarely can do so because the ICF fails to provide appropriate supports. When an outing occurs, all residents must go together, and often the “activity” consists of everyone getting in an eightperson van and riding around together. The large offers few meaningful opportunities to interact with the community, and staff are generally the only people without disabilities with whom Mr. Walters interacts on a daily basis. 44. Mr. Walters likes to ride his wheelchair on the sidewalk in the park and go on boat rides. He enjoys going out to eat ice cream or pizza and would like to go to bowling. He also likes to play card games.
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45. Mr. Walters lived with his parents for many years, but eventually they were no longer able to act as his primary caregivers. Without access to home and community-based services, Mr. Walter’s family had no choice but to move him to an ICF. In July 2001, he was enrolled in the Individual Options waiver program, which allowed him to move out of the ICF into a home in the community in Marietta. He remained in a community setting for almost eleven years, until he was hospitalized for a medical emergency in May 2012.
46. After the hospitalization, he was discharged to a nursing facility as part of his recovery plan. As he prepared to leave the nursing facility, his waiver services provider advised him that it would no longer serve him due to his recent transition to use of a colostomy bag. Once again, Mr. Walter’s family was faced with no alternatives to institutional care. His sister placed him in an ICF as the only option to leave the nursing facility, and he has remained in this ICF for the past four years.
47. Mr. Walters’ sister wants him to live and spend his days in the community as he did before, and to receive the services and supports that he needs to do so. However, he is once again on a waiting list for a home and community-based services waiver and has been waiting for several years for these services.
48. Mr. Walters has been spending his days at a sheltered workshop for 31 years. He participates in a day services program in the sheltered workshop for three days a week from about 8:30 a.m. to 2:30 p.m. In the day program, the participants have limited contact with nondisabled people other than paid staff, and neither Mr. Walters nor his guardian have much choice in the activities in which he participates.
49. Mr. Walters is not receiving vocational rehabilitation services, and Mr. Walters has never had the opportunity to work in the community.
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50. For the four days each week he is not at the workshop, Mr. Walters stays at the ICF and receives no structured vocational or day programming.
51. Mr. Walters is qualified for and could live and spend his days in the community with appropriate services and supports. By the Defendants’ administration, planning, and funding of the service system for people with intellectual and developmental disabilities, Mr. Walters is denied this freedom and is subjected to continued discriminatory segregation.
Nathan Narowitz 52. Nathan Narowitz is a friendly and outgoing 24-year-old man who enjoys helping people. He lives in North Ridgeville with his aging parents, who are his primary caregivers. His mother is 62 years old and his father is 66 years old. 53. Both Mr. Narowitz and his parents want him to remain in the community, but due to the lack of home and community-based services, he is at serious risk of institutionalization. 54. Mr. Narowitz’s diagnoses include developmental delay, attention deficit/hyperactivity disorder, and obsessive compulsive disorder. He uses various forms of expressive communication, including gestures, facial expressions, and electronic communication applications on his iPad. Mr. Narowitz requires assistance with avoiding impulsive choices, managing his finances, meal preparation, hygiene, medication administration, selecting appropriate attire to wear, grocery shopping, housekeeping, and laundry. He may also benefit from supervision to ensure that he does not wander away from his home or place of employment. 55. Mr. Narowitz is eligible for Medicaid and would qualify for the level of care necessary to receive either ICF or home and community-based services. He does not receive Medicaid home and community-based waiver services and has been on the waiting list for such services for almost four years.
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56. Mr. Narowitz does not currently receive vocational rehabilitation services. He was part of an employment training program at a restaurant in high school with the rest of his class, but he currently spends his days at a segregated, facility-based sheltered workshop with hundreds of others with developmental disabilities. He makes substantially less than minimum wage and is bored in this work setting. He would rather be involved in activities in his community, and craves interactions with peers. He is frequently disciplined by workshop staff because of his need to be social and interact with others. When he has nothing to do at home, he sleeps.
57. Mr. Narowitz loves animals, swimming, bowling, puzzles, going to the movies, and going out to eat. He enjoys keeping busy and engaging with friends and family. Given the lack of integrated, home and community-based services, and to mitigate his isolation at home, his parents have no choice but to pay out-of-pocket for someone to take him on social outings and help him use transportation as well as to stay with him when they must leave the home for some reason since he cannot be left alone. This arrangement is a financial burden for them and allows for only limited opportunities for involvement in his community.
58. His parents worry about their continued ability to provide adequate care for Mr. Narowitz at home. They also are concerned about their continued ability to pay out-ofpocket for the supports that he needs. They want their son to remain in the community. Mr. Narowitz also wants to continue living at home with his parents or in a home or apartment in his community. However, without the home and community-based services he needs, he is at serious risk of institutionalization because of the Defendants’ administration, planning, and funding of the service system for people with intellectual and developmental disabilities.
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Ross Hamilton 59. Ross Hamilton is a 22-year-old man with autism who lives at home with family. He brings this action through his next friend, Sherry Hamilton, who is his mother and the guardian of his person. 60. Mr. Hamilton lives in Cincinnati with his mother, Ms. Hamilton, who is 56 years old. Ms. Hamilton acts as his primary caregiver and also pays for an aide out of her own pocket to watch over him while she is at work. Ms. Hamilton is a single parent and works full-time to support herself and her son. She has at times been unable to work as much as she needs because Mr. Hamilton does not have the services and support he needs, which affects the level of income available to the family to make ends meet. She does receive a limited amount of money from the county for respite services, but this is wholly insufficient. 61. Mr. Hamilton is at serious risk of institutionalization. His mother is concerned about her continued ability to care for Mr. Hamilton at home due to her age and level of exhaustion and limited financial resources. Mr. Hamilton wants to continue living with his mother or in a home or apartment in the community. 62. Mr. Hamilton does not receive Medicaid home and community-based waiver services. He has been on waiting lists for both the Individual Options and Level One waiver programs for seven years, since he was 15 years old. 63. Mr. Hamilton is enrolled in the Medicaid program and would qualify for the level of care necessary to receive either ICF or home and community-based services. He communicates with words and short phrases to express his preferences, like his desire to continue living in the community. He would benefit from assistance with meal preparation, medication management, transportation, wearing appropriate attire, managing his finances and
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public benefits, and maintaining employment, and he needs constant supervision because of his behavioral needs and functioning level.
64. Mr. Hamilton loves music, animals, going to church, going to the zoo, bowling, visiting museums, swimming, going to the gym and using an exercise bike, trains, and computers. He is not able to participate in these activities because of the lack of home and community-based waiver services. When he was in school, he worked at various job sites, and his favorite job was doing dishes. He is not currently employed and does not receive vocational rehabilitation services. He will soon be attending a segregated, facility-based day program for a couple days a week. Mr. Hamilton would like to work and be an active participant in his community, and he would need support to do these things. His lack of activities makes him feel bored, frustrated, and sad, which increases his behavioral needs.
65. Mr. Hamilton wants to continue living in the community. However, without the home and community-based services he needs, he is at serious risk of institutionalization because of the Defendants’ administration, planning, and funding of the service system for people with intellectual and developmental disabilities.
B. The Ability Center of Greater Toledo 66. The Ability Center of Greater Toledo (“the Ability Center”) is a not-for-profit center for independent living (“CIL”) incorporated in the state of Ohio. CILs are consumercontrolled, community-based, cross-disability agencies providing an array of independent living services to people with disabilities. 34 CFR § 364.4(b). 67. Established pursuant to 29 U.S.C. § 796, the Ability Center’s purpose is “to promote a philosophy of independent living . . . consumer control, peer support, self-help, selfdetermination, equal access, and individual and system advocacy, in order to maximize the leadership, empowerment, independence, and productivity of individuals with disabilities, and
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the integration and full inclusion of individuals with disabilities into the mainstream of American

society.”

68. The Ability Center’s mission includes the pursuit of legal, administrative, and

other appropriate remedies to protect the rights of individuals with disabilities and to increase the

capacity, availability, and quality of community-based service options. The Ability Center offers

a wide range of services and opportunities to assist people with disabilities, including those with

intellectual and developmental disabilities, in gaining or maintaining independence in their lives.

The Ability Center thus maintains a housing resource center, a community connections program,

systemic and individual legal advocacy, nursing home transition supports, a home modification

program, equipment loans, and intake and referral assistance.

69. Based in Sylvania, the Ability Center maintains regional offices in Bryan and Port

Clinton, and serves seven northwestern Ohio counties (Lucas, Ottawa, Wood, Fulton, Henry,

Defiance, and Williams counties).

70. The Ability Center was an organizational, representative plaintiff in several class

action lawsuits in Ohio federal courts including, but not limited to, Ability Center v. Sandusky,

Case No. 3:99 cv 7555, Ability Center v. Dubose and Associates, Case No. 3:01 cv 7299, and

Ability Center v. Lumpkin, Case No. 3:10 cv 00446. The Ability Center joins this suit on its own

behalf as an organization that has suffered specific economic injury as result of the Defendants’

unlawful acts and omissions, and on behalf of its constituents who include individuals with

intellectual and developmental disabilities currently institutionalized in large ICFs or at serious

risk of institutionalization in these facilities.

a)

Organizational standing

71. The Defendants’ administration, operation, and funding of the service system for

people with intellectual and developmental disabilities, and the resulting discriminatory

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segregation of the members of the Plaintiff class, impede the Ability Center’s capacity to carry out its mission. The Ability Center faces significant challenges helping people with intellectual and developmental disabilities access the services and supports they need to leave large ICFs and to avoid unnecessary segregation. If more integrated home and community-based services were available to its constituents, the Ability Center could expand its nursing home transition program to include more people in large ICFs.
72. Instead, the Ability Center has been forced to expend significant monetary and staffing resources advocating for increased access to home and community-based services for its constituents with intellectual and developmental disabilities. In response to persistently inadequate community-based options, the Ability Center has directed funding towards the grassroots organizing of people with intellectual and developmental disabilities, facilitating trainings on self-advocacy skills, meetings with federal and state legislators and policymakers, participation in the Ohio Olmstead Task Force, and the hiring of a staff attorney whose systemic advocacy work includes advocating for the expansion of integrated, community-based service options for people with intellectual and developmental disabilities in Ohio.
73. Despite these efforts, the Ability Center has been unable to achieve the reforms necessary to redress ongoing segregation experienced by its constituents with intellectual and developmental disabilities. If the Defendants’ service system complied with federal law, and integrated, community-based services were available in the community, the Ability Center could and would devote these considerable resources to assisting its constituent class members with finding community-based residential and employment services, accessing recreational or leisure opportunities, and gaining independent living skills.
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b)

Associational Standing

74. Within its seven-county service area, the Ability Center advocates for the rights

and interests of people with a range of disabilities, including those who are institutionalized in

large ICFs or who are at serious risk of institutionalization in such facilities. As a result,

members of the Plaintiff class are among the constituents who are served by, and who inform the

work of, the Ability Center. The interest of these constituents in remedying discriminatory

segregation goes to the heart of the Ability Center’s mission to ensure that people with

disabilities have access to the services and supports they need to live and work in the most

integrated settings appropriate to their needs.

75. Pursuant to 29 U.S.C. § 796f-4(b)(1), the Ability Center must “promote and

practice the independent living philosophy of consumer control of the center regarding decision-

making, service delivery, management, and establishment of the policy and direction of the

center.” 29 U.S.C. § 796f-4(b)(1)(A). People with disabilities make up the majority of members

of the Ability Center’s Board of Trustees, which sets the overall policy direction of the

organization. The Board includes four members who have intellectual and developmental

disabilities or are parents of people with intellectual and developmental disabilities.

76. People with disabilities also play a significant part in the day-to-day operations of

the Ability Center. A majority of the Ability Center’s staff are people with disabilities. These

staff work directly with the Ability Center’s constituents, and they perform key leadership

functions within the organization. Ability Center staff collaborate regularly with local disability

organizations and task forces that also consist of people with disabilities.

77. The Ability Center maintains a grievance process so that constituents can express

concerns about the Ability Center’s capacity to meet their needs. In addition, constituents are

surveyed about their experience with the organization. This feedback from constituents and their

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families informs financial and programmatic decisions regarding the delivery of services and the allocation of resources for future advocacy.
78. As a result of the Ability Center’s organizational structure, its leadership and staffing decisions, its connections with constituents, and its involvement in the advocacy community, people with disabilities, including those with intellectual and developmental disabilities, have a strong voice in, and a direct influence on, the work of the Ability Center.
C. The Defendants John Kasich, Governor of the State of Ohio 79. Defendant John Kasich is the Governor of the State of Ohio. Under Article III, Section 6 of the Ohio Constitution, he is charged with seeing that the laws of the State of Ohio are faithfully executed. 80. Defendant Kasich appoints the directors of the Ohio Department of Developmental Disabilities (“DODD”), the Ohio Department of Medicaid (“ODM”), and Opportunities for Ohioans with Disabilities (“OOD”) in accordance with Article III, Section 21 of the Ohio Constitution. He is responsible for directing, supervising, controlling, and setting policy for the executive departments of state government. 81. Defendant Kasich is responsible for developing and submitting an executive budget to the legislature each fiscal biennium, and for approving a final budget and budget modifications that include funding for DODD, ODM, and OOD. 82. Defendant Kasich is responsible for the Governor’s Office of Health Transformation, which he created through Executive Order 2011-02K “in order to carry out the immediate need to address Medicaid spending issues, plan for the long-term efficient administration of Ohio’s Medicaid program, and act to improve overall health system performance in Ohio.” Since its creation, the Governor’s Office for Health Transformation has
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coordinated and implemented planning and budget activities for the State of Ohio’s compliance with the U.S. Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 581 (1999). Defendant Kasich has authority to issue proclamations and executive orders regarding employment services for people with intellectual and developmental disabilities and has issued such executive orders. He is responsible for ensuring that state agencies fully implement his policies concerning integrated employment for people with intellectual and developmental disabilities.
83. Defendant Kasich is sued in his official capacity. John Martin, Director of the Ohio Department of Developmental Disabilities 84. Defendant John Martin is the Director and executive head of DODD. DODD is legally responsible for the operation of Ohio’s statewide comprehensive programs and services for people with intellectual and developmental disabilities and their families, including public education, prevention, diagnosis, treatment, training, and care, pursuant to Ohio Revised Code § 5123.02. 85. Defendant Martin has oversight and control over all of DODD’s programs and operations, including the maintenance of ten state-operated large ICFs, also called developmental centers. Through interagency agreements with the ODM, Defendant Martin also exercises certain powers and duties with regard to the administration, licensing, and operations of privately-operated ICFs in Ohio. 86. Defendant Martin is responsible for the administration of Ohio’s four Medicaidfunded home and community-based waiver programs for people with intellectual and developmental disabilities. 87. Defendant Martin’s duties include, but are not limited to, entering into contracts and other agreements on behalf of DODD, monitoring county boards of developmental disabilities, and adopting, amending, or rescinding agency rules, including rules for
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administration and licensing of ICFs in Ohio and those which regulate the certification of home and community-based services waiver providers.
88. Defendant Martin has responsibility for ensuring that DODD’s programs and services operate in compliance with federal law.
89. Defendant Martin is sued in his official capacity. John McCarthy, Director of the Ohio Department of Medicaid 90. Defendant John McCarthy is the Director and executive head of the Ohio Department of Medicaid (ODM). ODM is Ohio’s single state Medicaid agency, responsible under 42 U.S.C. § 1396a(a)(5) and Ohio Revised Code § 5162.03 for the administration of Ohio’s Medicaid program. Under this program, the federal government partially reimburses states for the costs of medical and other services provided to eligible persons, including longterm services and supports to people with intellectual and developmental disabilities. 91. Defendant McCarthy has ultimate responsibility, authority, oversight, and control over all ODM programs, services and operations. ODM has delegated responsibilities for administration of Ohio’s Medicaid waivers programs for people with intellectual and developmental disabilities to DODD. ODM has also delegated to DODD its powers and duties regarding Medicaid-funded ICF services, including licensure, level of care determinations for admissions to Medicaid-funded ICFs, and adopting, amending, or rescinding administrative rules regulating the operation of ICFs. 92. Defendant McCarthy is directly responsible for the design and structure of the Medicaid program in Ohio and for ensuring that the programs administered by ODM are operated and administered in compliance with federal law. 93. Defendant McCarthy is sued in his official capacity.
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Kevin Miller, Director of Opportunities for Ohioans with Disabilities 94. Defendant Miller is the Director and executive head of OOD, the designated state agency in Ohio that is legally responsible, pursuant to Title I of the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., as amended, for providing to people with disabilities, including those with intellectual and developmental disabilities, vocational rehabilitation services necessary to attain and maintain competitive employment in integrated, community-based settings. Under the Rehabilitation Act, the federal government partially reimburses states for the costs of their vocational rehabilitation programs. 95. Defendant Miller is directly responsible for ensuring that the state’s vocational rehabilitation services are operated in compliance with federal law. Defendant Miller is directly responsible for implementing and overseeing policies and procedures concerning vocational rehabilitation services for people with intellectual and developmental disabilities and for the development, implementation, and oversight of this system of vocational rehabilitation services for people with intellectual and developmental disabilities. He is also directly responsible for ensuring that this system provides employment services consistent with each person’s “individual plan for employment.” 96. Defendant Miller is sued in his official capacity. D. Class Allegations 97. Pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure, the Individual Plaintiffs bring this action on behalf of themselves and tens of thousands of other similarly-situated Ohio residents. The Individual Plaintiffs, and the class they seek to represent, are Medicaid-eligible adults with intellectual and developmental disabilities who, on or after March 31, 2016, are institutionalized, or are at serious risk of institutionalization, in a large ICF.
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98. Class members at serious risk of institutionalization include people with intellectual and developmental disabilities who: 1) have been referred to a large ICF for admission; or 2) are now, or will be, placed on waiting lists for Medicaid home and communitybased waiver programs and whose unmet service needs include inadequate residential services and supports or reliance upon aging caregivers.
99. The Individual Plaintiffs, and the members of the Plaintiff class, are entitled to be served in the most integrated, least restrictive settings appropriate for their individual needs. However, they do not have access to the integrated home and community-based services required to avoid their unnecessary institutionalization, and they are denied the opportunity to make meaningful and informed choices regarding alternatives to segregation in a large ICF.
100. Once in these institutional settings, members of the Plaintiff class must attend facility-based sheltered workshops and day programs operated by or contracted through their ICF provider. In these settings, members of the Plaintiff class have few, if any, interactions with their non-disabled peers, other than paid staff. Their opportunities for individual choice or meaningful participation in their communities are very limited or non-existent.
101. Based on their common injury and experience of illegal segregation, the Individual Plaintiffs seek declaratory and injunctive relief on behalf of themselves and the members of the Plaintiff class as a whole, in order to remedy and prevent their unnecessary institutionalization in large ICFs by gaining access to integrated residential, employment, and day services.
102. The Plaintiff class, approximately 27,800 people in total, is so numerous that joinder of all members is impracticable. The class includes approximately 5,800 people with
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intellectual and developmental disabilities who are institutionalized in Ohio’s statewide network of publicly- and privately-operated large ICFs.
103. In addition, as a result of the Defendants’ administration, planning, operation, and funding of the service system for people with intellectual and developmental disabilities, tens of thousands of other individuals with intellectual and developmental disabilities are at serious risk of admission to a large ICF. The Governor’s Office of Health Transformation observed in its public explanation of the SFY 2016-17 state budget proposals that “there are more than 22,000 Ohioans with immediate needs on waiting lists, 8,000 of whom live with an aging caregiver, and 1,000 of whom will lose the support of their primary caregiver in the next year.” This extraordinary extent of unmet need, coupled with prolonged delays in access to the home and community-based services that do exist, will continue to place additional class members at serious risk of institutionalization during the course of this litigation, making joinder impractical, if not impossible.
104. Finally, because of their institutionalization and disability, the members of the Plaintiff class would face difficulty pursuing their own individual legal claims. Even if such claims could be brought, they would be unable to remedy underlying systematic violations of federal law without the benefit of class treatment.
105. There are multiple questions of law common to the class, susceptible to a common answer, and capable of resolving the legal claims of the members of the Plaintiff class “in a single stroke”:
a) Whether the Defendants are violating the ADA and Section 504 of the Rehabilitation Act by failing to provide the integrated, community-based
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services needed to avoid the unnecessary institutionalization and resulting segregation of the members of the Plaintiff class; b) Whether the Defendants are violating the ADA and Section 504 of the Rehabilitation Act by administering their service system for people with intellectual and developmental disabilities in a way that discriminates against the members of the Plaintiff class; c) Whether the Defendants are violating the ADA and Section 504 of the Rehabilitation Act by failing to serve the members of the Plaintiff class in the most integrated setting appropriate to their needs; d) Whether the Defendants have developed a comprehensive, effectively working plan for serving the members of the Plaintiff class in the community instead of in segregated, institutional settings; e) Whether the Defendants have failed to evaluate plaintiffs’ eligibility for more integrated community-based services and to inform them of feasible alternatives to institutional care in violation of 42 U.S.C. 1396n(c)(2)(B)&(C). 106. Similarly, there are multiple factual contentions that are common to the members of the Plaintiff class, could generate common answers, and, if so answered, would resolve the legal claims of the class as a whole: a) The Defendants’ administration, funding, and operation of their service system for people with intellectual and developmental disabilities arbitrarily and impermissibly denies the members of the Plaintiff class the opportunity to receive services in the most integrated setting appropriate
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for their needs by failing to provide an adequate array of integrated residential, employment, and day services to people in large ICFs and those at serious risk of admission to these facilities; b) The Defendants’ pattern and practice of failing to provide meaningful alternatives to ICF admissions denies those class members in large ICFs and those at serious risk of institutionalization the opportunity to access the integrated services necessary to remain in the community; c) The Defendants’ pattern and practice of failing to provide adequate transitional assistance services to people already in large ICFs denies class members access to integrated community-based service options, causing them to remain unnecessarily and impermissibly segregated in the settings where they live, work, and spend their days; d) Through the administration, funding, and operation of their service system for people with intellectual and developmental disabilities, the Defendants demonstrate a failure to accommodate the needs of the members of the Plaintiff class, by investing in and sustaining the growth of segregated service settings, and by not making adequate community services available to people in large ICFs or at serious risk of admission to a large ICF; e) In their administration and funding of the service system for people with intellectual and developmental disabilities, the Defendants demonstrate a failure to accommodate the needs of the members of the Plaintiff class by not adequately funding integrated, community-based services and by
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perpetuating a system of financial disincentives which leads to class members’ unnecessary institutionalization or serious risk of institutionalization. 107. The Individual Plaintiffs’ claims are typical of the members of the Plaintiff class. The Individual Plaintiffs possess the same interests as the members of the Plaintiff class, suffer the same injury, and raise legal claims arising out of the same course of governmental conduct. 108. The Individual Plaintiffs will fully and vigorously prosecute this action, and can adequately and fairly represent the interests of the purported class. 109. The members of the Plaintiff class are represented by attorneys experienced in federal class action litigation and disability law. 110. The Defendants administer, operate, and fund their service system for people with intellectual and developmental disabilities in a way that discriminates against them by failing to provide the integrated residential, employment, and day services needed to remedy and prevent their unnecessary institutionalization. This unlawful government action has resulted in the unnecessary and discriminatory segregation and serious risk of segregation experienced by the Individual Plaintiffs and the members of the Plaintiff class. 111. The Defendants have acted or refused to act on grounds that apply generally to the class, making injunctive and declaratory relief appropriate with respect to the class as a whole. The members of the Plaintiff class raise common questions of law and fact that are capable of, and susceptible to, class-wide resolution, making class treatment appropriate. For these reasons, and consistent with long-standing precedent in similar civil rights actions, the Individual Plaintiffs seek class certification pursuant to Fed. R. Civ. P. 23(b)(2).
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IV. STATUTORY PROVISIONS A. The Americans with Disabilities Act (ADA) 112. The ADA was enacted in 1990 “to provide a clear and comprehensive national
mandate for the elimination of discrimination against individuals with disabilities[.]” 42 U.S.C. § 12101(b)(1).
113. In enacting the ADA, Congress found that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem[.]” 42 U.S.C. § 12101(a)(2).
114. In addition, Congress recognized that “people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally; [and] the Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals[.]” 42 U.S.C. § 12101(a)(6)-(7).
115. Title II of the ADA applies to public entities, including state or local governments and any departments, agencies, or other instrumentalities of state or local governments. 42 U.S.C. §§ 12131, 12132. It provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.
116. The U.S. Department of Justice (“DOJ”) has authority under 42 U.S.C. § 12134 to issue federal regulations implementing and enforcing Title II of the ADA.
117. Title II’s implementing regulations prohibit public entities from utilizing “criteria or methods of administration” that “have the effect of subjecting qualified individuals with
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disabilities to discrimination,” or “[t]hat have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities[.]” 28 C.F.R. § 35.130(b)(3)(i), (ii).
118. The Title II implementing regulation known as the “integration mandate” requires that public entities “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). “The most integrated setting” is one that “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. § Pt. 35, App. B.
119. The U.S. Supreme Court has held that Title II of the ADA prohibits the unjustified institutionalization of individuals with disabilities (Olmstead v. L.C., 527 U.S. 581, 597-600 (1999)), noting that segregation of people with disabilities “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life,” and “severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, [and] economic independence.”
120. According to case law and the Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the ADA and Olmstead v. L.C., the ability to state a claim under Title II of the ADA and Olmstead is not limited to people currently in institutional or other segregated settings, but applies equally to those at serious risk of institutionalization or segregation (e.g., if a public entity’s failure to provide community services “will likely cause a decline in health, safety, or welfare that would lead to the individual’s eventual placement in an institution”). Available at http://www.ada.gov/olmstead/q&a_olmstead.htm.
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121. As a result, “[i]ndividuals need not wait until the harm of institutionalization or segregation occurs or is imminent” before they may state a claim for illegal discrimination. Id.
122. Olmstead specifically addressed the unjustified residential institutionalization of individuals who were qualified to live in the community. 527 U.S. 581. But Title II’s integration mandate applies not only to the right to be free from discrimination in a residential setting, but also to any “services, programs, and activities” administered by a state, including its employment and day programs for people with intellectual and developmental disabilities.
123. The DOJ’s Statement on Enforcement affirms that Title II of the ADA and Olmstead prohibits segregation not only in residential institutions, but in segregated settings that have “qualities of an institutional nature,” including, but not limited to, “congregate settings characterized by regimentation in daily activities, lack of privacy or autonomy, policies limiting visitors, or limits on individuals’ ability to engage freely in community activities and to manage their own activities of daily living” and “settings that provide for daytime activities primarily with other individuals with disabilities.” Accordingly, a state’s Olmstead plan “should include commitments for . . . persons who are unnecessarily segregated, such as . . . individuals spending their days in sheltered workshops or segregated day programs.”
B. Section 504 of the Rehabilitation Act of 1973 (“Rehabilitation Act”) 124. The Rehabilitation Act prohibits discrimination against people with disabilities under any program or activity that receives federal financial assistance. 29 U.S.C. § 794(a). 125. The Rehabilitation Act’s implementing regulations prohibit recipients of federal financial assistance from utilizing “criteria or methods of administration” that have the effect of subjecting qualified persons with disabilities to discrimination on the basis of disability, or that have the purpose or effect of defeating or substantially impairing accomplishment of the
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objectives of the recipient’s program with respect to persons with disabilities. 45 C.F.R. § 41.51(b)(3)(i)-(ii); 45 C.F.R. § 84.4(b)(4)(i)-(ii).
126. These implementing regulations also require entities receiving federal financial assistance to “administer programs and activities in the most integrated setting appropriate to the needs of qualified . . . persons [with disabilities].” 28 C.F.R. § 41.51(d); see also, 45 C.F.R. § 84.4(b)(2).
C. Section 1915(c) of the Social Security Act 127. The State of Ohio is required to operate its Medicaid program in compliance with the Social Security Act, 42 U.S.C. § 1396, and its implementing regulations. Section 1915(c) of the Social Security Act, 42 U.S.C. § 1396n(c), allows states to submit a request to the U.S. Secretary of Health and Human Services (“Secretary”) to “waive” certain federal Medicaid requirements in order to offer a broad range of home and community-based services as an alternative to institutional care. 128. In order to comply with federal and state law requirements governing Medicaid home and community-based services waivers for people with intellectual and developmental disabilities, the Defendants must evaluate all individuals referred for admission to an ICF, and periodically re-evaluate those in ICFs, to determine if they require an institutional level of care and whether they may be eligible to receive home and community-based services in lieu of residing in an ICF. 42 U.S.C. § 1396n(c)(2)(B); Ohio Rev. Code § 5123:2-8-01. 129. With the help of these evaluations, the Defendants must inform individuals determined to be likely to require an ICF level of care of the feasible alternatives to institutional placement, including the availability of home and community-based services which could prevent or avoid their continued institutionalization. 42 U.S.C. § 1396n(c)(2)(B)-(C).
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130. Implementing regulations for 42 U.S.C. § 1396n(c) require the Defendants to provide the Secretary with a “description of the agency’s plan for informing eligible beneficiaries of the feasible alternatives available under the waiver and allow[] beneficiaries to choose either institutional services or home and community-based services.” 42 C.F.R. § 441.303(d). In the context of this plan, the Defendants must assure that “when a beneficiary is determined to be likely to require the level of care provided in . . . [an ICF], the beneficiary or his or her legal representative will be—(1) [i]nformed of any feasible alternatives available under the waiver; and (2) [g]iven the choice of either institutional or home and community-based services.” 42 C.F.R. § 441.302(d). V. STATEMENT OF FACTS
A. People with Intellectual and Developmental Disabilities 131. Ohio’s definition of “developmental disability” encompasses intellectual disability, cerebral palsy, Down syndrome, autism, and many other conditions. People with intellectual and developmental disabilities may have a range of medical and behavior needs which bring varying degrees of complexity to their care and treatment. People with intellectual and developmental disabilities typically benefit from a variety of residential, vocational, medical, behavioral, communication, and personal care services in order to maximize their independence and realize their personal goals. With appropriate services and supports even individuals with complex conditions can be safely and effectively served in integrated, community-based settings. 132. People with intellectual and developmental disabilities also possess a variety of strengths and abilities. Access to appropriate, individualized long-term services and supports creates opportunities for people with intellectual and developmental disabilities to lead satisfying and meaningfully integrated lives—forming personal relationships, choosing and directing services and supports, participating in their communities, and engaging in work alongside non-
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disabled peers. Inadequate access to home and community-based services results in a lack of choice between institutional and community living and the most significant barrier to their integration in the community.
133. Estimates place the total number of Ohio residents with intellectual and developmental disabilities at approximately 113,000 and as high as 250,000. Rather than administer its service system for people with intellectual and developmental disabilities at the state or regional level, Ohio established local county boards of developmental disabilities. These entities are charged with carrying out a number of critical functions in the service system for people with intellectual and developmental disabilities, including assisting individuals and families in understanding and accessing the range of institutional and community-based service options. County boards are responsible for serving over 90,000 individuals each year, about half of whom are adults.
B. Ohio Administers and Maintains a System of Highly Segregated Residential, Employment, and Day Services
Ohio’s reliance on the institutional large ICF service model 134. In 1971 Congress adopted Public Law 92-223, which provides Medicaid reimbursement for ICFs, defined under federal law as institutions for four or more persons whose primary purpose is to deliver health or rehabilitative services consistent with the standards prescribed by the Secretary of HHS. 42 U.S.C. § 1396d(d). 135. ICFs are recognized nationally and under federal Medicaid law as a restrictive, institutional level of care for people with intellectual and developmental disabilities. See 42 C.F.R. § 441.300, 42 C.F.R. § 441.301(c)(5). Despite national trends to the contrary, Ohio continues to invest in and rely heavily upon this outdated service model. In 2012, Ohio ranked sixth out of the 50 states for the highest number of both publicly- and privately-operated ICFs,
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fifth for the total number of people served in both publicly- and privately-operated ICFs, and

third for the number of people served in private ICFs. In the same year, ten states operated

without a single public ICF for people with intellectual and developmental disabilities, while

nine states had only one. Three states (Alaska, Michigan, and Oregon) operated without any

ICFs at all.

a)

Thousands of people are placed in Ohio’s vast network of restrictive large

ICF settings.

136. There are approximately 6,437 people with intellectual and developmental

disabilities in Ohio’s vast ICF system. Within that system, almost 4,900 individuals are

institutionalized in one of 300 privately-operated ICFs with eight or more beds. These private

ICFs are licensed and overseen by the Defendants and funded with federal Medicaid-matching

money. In addition, DODD operates ten large ICFs known as developmental centers, all of

which have significantly more than eight beds. Nearly 900 people with intellectual and

developmental disabilities are institutionalized in these publicly-operated ICFs. In total,

approximately 5,800 people in Ohio reside in publicly- or privately-operated large ICFs.

137. Admission into the Ohio ICF system requires an evaluation and level of care

determination conducted by DODD. Ohio Admin. Code § 5123:2-8-01. An adult is eligible for

the level of care necessary to receive either ICF or home and community-based services when he

or she has been diagnosed with a severe, chronic disability attributable to a mental or physical

impairment (other than one caused solely by mental illness) that manifests before age 22, is

likely to continue indefinitely, and that results in substantial functional limitations in at least

three of the following areas of major life activities: self-care, receptive and expressive

communication, learning, mobility, self-direction, capacity for independent living, and economic

self-sufficiency.

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138. This level of care evaluation and corresponding determination of individual

service needs must be made prior to a person’s admission to an ICF and annually thereafter, or

upon a significant change in his or her condition. The DODD must notify the person or his or

her guardian regarding the outcome of the level of care determination and the right to appeal the

decision. Also, according to 42 C.F.R. § 456.380, a physician must establish a written plan of

care before a person can be admitted to an ICF. This plan of care must be reviewed at least

every 90 days thereafter.

b)

Once segregated in the large ICF system, there are few options to leave.

139. In Ohio, both private and public ICFs operate based on a common service model

and are defined by a shared statutory and regulatory scheme. They share common

characteristics, consistent with their federal origins and institutional character. The segregation

that results from placement in these settings, with its negative outcomes for people with

intellectual and developmental disabilities, is particularly evident in large ICFs. Large ICF

providers control most aspects of people’s daily lives, including with whom they live, how they

spend their day, when and what they eat, where they can go, and who delivers their care. Large

ICFs offer few opportunities for community involvement and are typically unable to facilitate the

pursuit of individualized activities consistent with people’s unique interests, abilities and

preferences. Once placed in institutional settings, individuals frequently become isolated from

their families, friends, and social networks. They often have little or no contact with their non-

disabled peers, other than paid staff. These substantial limitations on personal liberty, choice,

privacy, and autonomy all contribute to the discriminatory segregation that permeates nearly

every aspect of life in a large ICF.

140. Individuals who wish to leave large ICFs and return to the community have very

few options. In 2013, over 40,000 individuals throughout Ohio remained on waiting lists for

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home and community-based waiver services. Approximately 2,500 people on these lists reside in ICFs; the median wait time for them to access the home and community-based services they need to move out is 13 years. These numbers likely downplay the extent of unmet need in the State. If Ohio’s waiting lists moved at a reasonable pace, such that individuals and their families believed that placement on the list would result in the timely provision of services, the number of individuals stuck on waiting lists would likely be much higher.
141. Ohio provides ICF services as a benefit under its Medicaid program, funded by a combination of federal dollars and state matching money. Ohio Rev. Code § 5124.05; Ohio Rev. Code § 5164.03. As part of Ohio’s Medicaid state plan, these settings are subject to the requirements of federal Medicaid law. In order to receive Medicaid reimbursement, ICF providers must have valid provider agreements with ODM, be certified by the Ohio Department of Health, and be licensed by DODD.
142. Pursuant to Section 1915(c) of the Social Security Act, the Defendants also must assure that individuals who are determined to be likely to require the level of care provided in an ICF are informed of feasible alternatives, and given an opportunity to choose between available community-based services and institutionalization. 42 U.S.C. § 1396n(c)(2)(B)-(C).
The lack of integrated employment and day services for people in large ICFs 143. As a result of being institutionalized in large ICFs, members of the Plaintiff class are largely confined to segregated, facility-based sheltered workshops and do not have access to supported employment or vocational rehabilitation services through Ohio’s systems. This is due both to funding structures in Ohio’s employment service system that exclude members of the Plaintiff class, as well as to the Defendants’ failure to provide employment services in integrated settings. Similarly, because of the structure of the Defendant’s system, people in large ICFs do
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not have access to integrated, non-work day services and therefore spend much of their time in

segregated, facility-based day programs.

a)

Supported employment services provide the most integrated work services

for people with intellectual and developmental disabilities.

144. Sheltered workshops are an outdated service model based upon the stereotype that

people with disabilities cannot engage in competitive employment and are not capable of

succeeding at real work. Sheltered work programs take place in facility-based settings where

only people with intellectual and developmental disabilities work, almost always for much less

than minimum wage. These individuals have little choice in the tasks they perform. Commonly,

workshop participants are asked to do repetitive manual tasks, such as sorting materials or light

assembly. Sheltered workshops in Ohio are often co-located, and operated in conjunction, with

other segregated facilities, including large ICFs.

145. For many employees of sheltered workshops, the unchanging daily routine of

performing mundane work causes social skills to atrophy and denies opportunities to develop

meaningful workplace skills. This leads to an even lower likelihood that these individuals will

ever transition to work in the community and further removes them from community life.

146. In contrast, supported employment services enable people with intellectual and

developmental disabilities to obtain and maintain competitive employment in integrated settings,

at or above the minimum wage and alongside non-disabled workers, and to learn valuable skills,

earn competitive wages, and achieve greater self-sufficiency and independence.

147. Unlike sheltered workshops, which tend to use a “one size fits all” approach to

employment by assigning individuals with a wide range of abilities and interests to identical

tasks, supported employment services use a person-centered planning model that assesses each

individual's unique skills, needs and preferences.

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b)

The Ohio Department of Developmental Disabilities, the Ohio Department

of Medicaid, and Opportunities for Ohioans with Disabilities are the state

agencies responsible for Ohio’s employment system for people with

intellectual and developmental disabilities.

148. Opportunities for Ohioans with Disabilities (“OOD”) is Ohio’s federally

designated state vocational rehabilitation agency. Together with DODD and ODM, OOD is

responsible for the planning, funding, oversight, and delivery of employment services for people

with intellectual and developmental disabilities in Ohio. These agencies determine the amount

and allocation of funding for these services and the employment service system, the range of

employment services to be provided, the licensing of employment providers, and the level of

funding for sheltered workshops versus supported employment programs.

149. As the state vocational rehabilitation agency, OOD has a primary responsibility

for delivery of supported employment services to people with intellectual and developmental

disabilities, yet it has failed to provide these services to people living in large ICFs in violation of

its statutory mandates.

c)

Federal and Ohio laws require provision of integrated employment

services.

150. Numerous federal laws establish requirements for state vocational rehabilitation

agencies like OOD, including the obligation to provide integrated employment services.

151. OOD, the state vocational rehabilitation agency, was created in accordance with

Title I of the Rehabilitation Act. In enacting this federal law, Congress found that work “is a

valued activity, both for individuals and society” and “fulfills the need of an individual to be

productive, promotes independence, enhances self-esteem, and allows for participation in the

mainstream of life.” 29 U.S.C. § 720(a). Congress also recognized that individuals with

disabilities, even those with the most significant disabilities, have the ability to achieve gainful

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employment in integrated settings if appropriate services and supports are provided. 29 U.S.C. § 720(a)(1)(C).
152. Despite the demonstrated ability and desire of people with disabilities to work, Congress recognized that significant numbers of individuals with disabilities do not have opportunities to work at levels commensurate with their capabilities. Reasons for the lack of opportunities include discrimination and lack of education, as well as the failure to provide adequate training and supports to enable them to meet job qualification standards necessary to secure, retain, regain, or advance in employment. 29 U.S.C. § 720(a)(1)(D).
153. To ensure that all individuals with disabilities have access to meaningful employment, Congress included in Title I of the Rehabilitation Act the presumption that all individuals can benefit from vocational rehabilitation services unless a State can demonstrate by clear and convincing evidence that an individual is incapable of working due to the severity of the individual’s disability. 29 U.S.C. § 722(a)(2)(A).
154. In 2001, the Rehabilitation Services Administration (RSA), the federal agency that oversees states’ vocational rehabilitation services programs, affirmed these congressional findings by eliminating all funding for the permanent placement of people with disabilities in sheltered workshops. The RSA instead endorses and funds supported employment services for clients of state vocational rehabilitation programs.
155. Congress’ most recent amendment to the Rehabilitation Act, the Workforce Innovation and Opportunity Act (WIOA), 29 U.S.C. § 701, et seq., imposes a number of new mandates on state vocational rehabilitation agencies that enhance the Rehabilitation Act’s requirement that federal vocational rehabilitation funds be used to assist individuals with disabilities to achieve competitive integrated employment. 29 U.S.C. § 720(a).
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156. For instance, WIOA places limitations on the payment of below-minimum wages

and mandates that state vocational rehabilitation agencies provide all individuals working in a

sheltered workshop with “career counseling, and information and referrals . . . delivered in a

manner that facilitates independent decision-making and informed choice . . . .” 29 U.S.C. §

794g(c). Further, WIOA establishes that, for purposes of a vocational rehabilitation eligibility

assessment, all applicants are “presumed to have a goal of an employment outcome.” 29 U.S.C.

§ 722(a)(1).

157. Recognizing the obligations of federal law, Ohio endorsed and promoted the

principle that every person with intellectual and developmental disabilities can work. In 2012,

Defendant Kasich signed an Executive Order creating an “Employment First” policy in Ohio,

emphasizing the importance of community-based, integrated employment and establishing that

“[c]ommunity employment shall be the priority and the preferred outcome for . . . Ohioans with

disabilities.” Executive Order, 2012-05K. This principle was subsequently codified in state law

in 2012. Ohio Rev. Code § 5123.022(B). Ohio law was further amended in 2013 to incorporate

WIOA’s requirements regarding wages and interaction with people without disabilities and to

define community employment as “competitive employment that takes place in an integrated

setting.” Ohio Rev. Code § 5123.022(A).

d)

The Defendants administer and fund a system of employment services that

unnecessarily relies upon segregated, facility-based sheltered workshops

and that fails to meet the requirements of federal and state law.

158. Ohio’s employment system funds delivery of supported employment services to

people with intellectual and developmental disabilities in two ways: (1) through Medicaid home

and community-based waiver programs, and (2) through OOD. Waiver services include an

individualized vocational assessment and a person-centered planning process used to determine

the person’s employment goals, strengths, abilities, and interests.

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159. Despite Ohio’s own laws and federal mandates to vocational rehabilitation agencies to deliver employment services in an integrated setting, the Defendants continue to operate an employment system that is overly reliant on segregated settings for people in large ICFs.
160. Ohio ranks third highest nationally in the percentage of its residents with intellectual and developmental disabilities receiving services in facility-based settings. Further, Ohio is one of only five states that relegate more than half of its residents with intellectual and developmental disabilities to sheltered workshops. John Butterworth et al., Inst. for Cmty. Inclusion, Univ. of Massachusetts Boston, StateData: The National Report on Employment Services and Outcomes 2014 21 (2014), http://www.statedata.info/sites/statedata.info/files/files/statedatabook_2015_F.pdf (hereinafter “StateData 2014”).
161. The most recent on-site review of OOD by its federal oversight agency, RSA, found that Ohio’s vocational rehabilitation agency violated federal law in numerous ways, while at the same time failing to achieve desired outcomes. Rehab. Servs. Admin., U.S. Dep’t of Educ., Fiscal Year 2013 Monitoring Report on the Opportunities for Ohioans with Disabilities Agency Vocational Rehabilitation Program (2014), http://www2.ed.gov/rschstat/eval/rehab/107reports/2013/vr/oh.pdf (hereinafter “RSA Monitoring Report 2013”). RSA concluded that OOD violated federal law and put federal funds at risk of going to waste because OOD lacked proper internal fiscal controls. RSA Monitoring Report 2013 at 33-34.
162. The federal monitoring also found that OOD relinquished $56,238,430 in federal vocational rehabilitation services funds over a four-year period and, at the same time, was
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additionally penalized $5,941,948 for a deficit in the State’s required maintenance of effort.

RSA Monitoring Report 2013 at 12.

163. RSA found that OOD spent federal vocational rehabilitation funds on numerous

program expenditures that were prohibited by federal law and regulations. Id. at 27-29. RSA

found that OOD improperly spent vocational rehabilitation funds received through Social

Security Administration reimbursement on unallowable services that did not assist eligible

individuals in obtaining employment. Id. at 40.

164. RSA identified a number of programmatic weaknesses at OOD. In fact,

nationally OOD has the fourth lowest rehabilitation rate of the 31 vocational rehabilitation

agencies that are similarly structured. Rehab. Servs. Admin., U.S. Dep’t of Educ., FY 2014 State

Vocational Rehabilitation Performance (2014),

http://www2.ed.gov/programs/rsabvrs/resources/fy2014-state-voc-rehab-performance.pdf.

165. Despite such poor outcomes for people with intellectual and developmental

disabilities, in FY2014 OOD spent more than twice the national mean cost for vocational

rehabilitation services. Id.

e)

Ohio’s failures in administration of vocational rehabilitation services

have prevented the Individual Plaintiffs and the members of the Plaintiff

class from accessing community employment.

166. The Individual Plaintiffs and the members of the Plaintiff class are particularly

vulnerable to the negative impacts of DODD, OOD, and ODM’s operational failures because

they cannot access home and community-based waiver funding for long-term employment

supports and because local funding is inadequate to pay for such services.

167. Virtually no person in a large ICF in Ohio has access to or receives vocational

rehabilitation services through OOD. In fact, at one point recently the OOD’s official case

closure forms listed among the reasons for closure: “You are receiving primary services in an

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institutional setting.” The case closure form now lists the unavailability of supported employment services, though one would benefit from such services, as a reason to close his or her case with OOD.
168. Moreover, virtually all residents of large ICFs are excluded from the Defendants’ Employment First initiative and its promise to provide integrated, supported employment services. As a result, the “best” employment opportunity for these ICF residents is assignment to facility-based sheltered workshops.
169. DODD and OOD have acknowledged their failure to provide access to employment services for individuals with intellectual and developmental disabilities living in large ICFs. In September 2015, DODD and OOD issued an RFP to fund three pilots intended to result in “an increase in integrated community based employment and day services.” Emp’t First Initiative, Ohio Dep’t of Developmental Disabilities, Intermediate Care Facility Employment Pilots Request for Proposals, 5, http://www.ohioemploymentfirst.org/up_doc/ICF_Employment_Pilots_RFP_Final_8-26-15.pdf (last visited March 30, 2016). However, the RFP provides only $400,000 in funding to be spread among three organizations over a period of more than 20 months, an amount that is insufficient to address the needs of the thousands of residents of large ICFs who are members of the Plaintiff class.
170. In addition, the Defendants’ efforts to expand Ohio’s employment service system for people with intellectual and developmental disabilities are focused almost entirely on services for individuals already enrolled in existing waiver programs, which does not include individuals in large ICFs.
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f)

The absence of integrated day services for people in large ICFs causes

them to spend much of their time in segregated, facility-based day

programs.

171. As a result of the Defendants’ operation, administration, and funding of the

service system for people with intellectual and developmental disabilities, nearly all funding for

non-work day programs is directed to congregate, facility-based settings. These settings are

typically segregated and rarely offer any individualized, integrated community services.

172. Participants in Ohio’s home and community-based waiver programs have some

opportunities to access and select from among integrated days services and activities. This

access enables them to increase their independence and expand involvement in their

communities.

173. In contrast, class members in large ICFs typically have little or no choice as to

where and how they spend their days. Some participate in day programs operated by the ICF

provider on or adjacent to the grounds of the facility. Others must attend the segregated day

programs with which the ICF has chosen to contract.

174. In facility-based day programs, people with intellectual and developmental

disabilities typically engage in non-work activities, including recreational or leisure activities. In

these congregate settings, class members rarely interact with non-disabled peers. Day program

schedules are typically pre-planned and routinized. To the extent these programs offer

community outings, they often are pre-planned, group activities that are not determined by

individual participants’ unique goals or expressed interests or preferences.

175. As a result of the Defendants’ administration, operation, and funding of the

service system for people with intellectual and developmental disabilities, people in large ICFs

are unable to access to the kinds of integrated day services necessary to facilitate their transition

to community-living, or avoid their unnecessary institutionalization.

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C. Ohio’s Provision of Home and Community-Based Services is Insufficient to Remedy and Prevent the Unnecessary Institutionalization and Segregation of the Individual Plaintiffs and the members of the Plaintiff class.
176. Over the past several decades, the federal government has created alternatives to institutional care, offering federal Medicaid resources designed to encourage states to develop more comprehensive home and community-based service systems and to rebalance their longterm care programs away from segregated institutional settings. One such incentive program is Section 1915(c) of the Social Security Act.
177. Section 1915(c) allows states to submit a request to the U.S. Secretary of Health and Human Services (“Secretary”) to “waive” certain federal Medicaid requirements in order to offer a broader range of home and community-based services, and particularly services needed to avoid unnecessary institutionalization, thus enabling waiver program participants to live in their own homes and to be integrated in their communities. 42 C.F.R. § 441.300.
178. DODD operates four Section 1915(c) home and community-based services waiver programs, offering varying levels and intensity of service for people who meet the level of care criteria for admission to an ICF: the Individual Options, Transitions Developmental Disabilities (TDD), Level One, and Self Empowered Life Funding (SELF) waiver programs. These waiver programs have a demonstrated history of supporting individuals with intellectual and developmental disabilities in home and community-based settings, including individuals in need of intensive 24-hour residential services and supports.
179. Ohio currently serves over 35,000 people with intellectual and developmental disabilities in these waiver programs. Despite the size of this system, more than 40,000 others across the state are waiting for community-based services.
180. The Defendants have designed the Level One and SELF waivers with strict individual funding limitations. As a result, these waivers can support only those people with
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minimal service needs. The State is phasing out its TDD waiver, and over the coming years current enrollees to that waiver will be transferred to other waiver programs, primarily the Individual Options waiver program.
181. The Individual Options waiver, which currently serves approximately 18,000 people with intellectual and developmental disabilities, has no individual funding limit, allowing for the participation of individuals with more significant service needs. Although this waiver previously failed to cover intensive behavior supports or nursing services, the Defendants have recently proposed adding these services to the waiver program, further broadening the population which can be successfully served in the community. With these and other reasonable modifications to the Individual Options waiver program, virtually any person institutionalized or at serious of institutionalization in a large ICF can be served safely and successfully in an integrated, home and community-based setting.
182. Services currently available under the Individual Options waiver include residential services, such as assistance with activities of daily living (personal hygiene, dressing, meal preparation, ambulation and transfers, grocery shopping, and homemaker assistance), medication administration, development of independent living skills, and supervision and monitoring to ensure the person’s health and welfare; funding for home modifications (such as installation of a ramp or grab bars); social work and nutrition services; transportation; and adaptive equipment.
183. Supported employment services as well as informal access to integrated day activities are also currently covered under the Individual Options waiver.
184. The Defendants have chosen to delegate a significant amount of oversight for home and community-based waiver programs to county boards of developmental disabilities.
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These local entities are responsible for conducting most of the operational and administrative day-to day functions associated with the Medicaid home and community-based waiver programs for people with intellectual and developmental disabilities, including maintaining waiting lists for home and community-based services, conducting waiver eligibility determinations, and providing certain waiver-funded services, including case management.
185. In addition, the Defendants require that the local county boards fund the nonfederal share of Medicaid expenditures under the home and community-based waiver programs. The Defendants’ decision to administer and fund the service system in this way creates regional and local disparities in access to waiver services, and can prevent counties with fewer resources or more fiscal constraints from meeting their residents’ service needs and supporting their preference for community living.
186. In contrast, Ohio matches Medicaid’s contribution to ICF services with State dollars, relieving county boards of any ongoing financial obligation for its citizens with intellectual and developmental disabilities in large ICFs. By establishing and maintaining this system of financial disincentives, Ohio increases the risk that individuals with more significant service needs will be referred to, and experience unnecessary institutionalization in, the Statefunded ICF system.
D. The Defendants Acknowledge the Need for Major System Reform But Consistently Fail to Remedy and Prevent the Ongoing Segregation Experienced by the members of the Plaintiff class.
187. For decades, Ohio has administered and maintained a vast system of segregated residential, vocational, and day services for people with intellectual and developmental disabilities. Recognizing the level of segregation in its service system, and its substantial reliance on institutional settings, the State recently put forth several initiatives and proposals to adjust its service system. However, even if successfully implemented, these efforts are not
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sufficient to meaningfully alter the discriminatory segregation and serious risk of segregation

experienced by the Individual Plaintiffs and the members of the Plaintiff class.

188. In the last several years, the Defendants have publicly acknowledged the extent to

which Ohio’s residential service system for people with intellectual and developmental

disabilities remains dependent on institutional care. In various public documents, the Defendants

have described the need to “rebalanc[e] in the state of Ohio, through both the downsizing of

large facilities and the conversion of ICF-IID funded beds (and smaller homes) to home and

community based waiver services,” and “increase the number of individuals who have the option

to receive services in home and community-based settings.” Ohio Dep’t of Developmental

Disabilities, The Future of the ICF-IID Program 1-2 (2012),

http://dodd.ohio.gov/Medicaid/Documents/ICF%20White%20Paper.pdf.

189. Furthermore, the Defendants recognize that most recipients of employment and

day services in Ohio receive those services in segregated settings that restrict individual choice,

whereas home and community-based settings provide individuals with “greater ability to choose

where they receive employment or day services.” Id. at 5.

190. Despite these public acknowledgements and Ohio’s expanded use of federal

Medicaid programs, discriminatory segregation and unnecessary institutionalization persist in

Ohio, harming the Individual Plaintiffs and the members of the Plaintiff class.

a)

The Defendants’ recent policy and budgetary initiatives are insufficient to

remedy discriminatory segregation experienced by the members of the

Plaintiff class.

191. As described above, Ohio currently relies on federal Medicaid programs to

facilitate its delivery of home and community-based services. These programs include the

section 1915(c) waivers and the demonstration program known as Money Follows the Person.

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Research consistently has demonstrated spending on these two national programs leads to a decline in institutional spending and long-term costs.
192. Ohio also received one-time administrative funds under the federal Budget Incentive Program. These federal resources are specifically targeted at states with less than 50% of their long-term care services located in community settings. Yet despite these initiatives, thousands of people continue to reside in large ICFs, and waiting lists for home and communitybased services have continued to increase.
193. Similarly, and despite three years of implementation efforts, Ohio’s Employment First Policy has yet to correct the segregation experienced by the members of the Plaintiff class, as evidenced by the Defendants’ continued reliance on sheltered workshops and other segregated employment settings for those in large ICFs. Moreover, the Defendants’ deliberate decision to limit implementation of the policy to those enrolled in home and community-based waiver programs ensures that most class members, due to their placement in large ICFs, will not have access to the benefits of such policy changes.
194. In 2014, Ohio, like all other states, became subject to new federal regulations from the Centers for Medicaid and Medicare Services (“CMS”), which established new outcome-based requirements for all Medicaid waiver programs, including residential and nonresidential settings. As a result, any residential, employment, and day program funded through a waiver program must be delivered in an integrated setting which “supports full access of individuals . . . to the greater community, including opportunities to seek employment and work in competitive integrated settings, engage in community life, control personal resources, and receive services in the community.” 42 C.F.R. § 441.301(c)(2)(i). CMS further defines an integrated setting as one that ensures “an individual’s rights of privacy, dignity and respect, and
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freedom from coercion and restraint” and that “[o]ptimizes, but does not regiment, individual initiative, autonomy, and independence in making life choices, including but not limited to, daily activities, physical environment, and with whom to interact.” 42 C.F.R. § 441.301(c)(4)(iii)&(iv).
195. These new federal regulations mandate that Ohio develop a transition plan to ensure that its waiver programs for people with intellectual and developmental disabilities come into compliance with CMS standards by March 17, 2019. Ohio acknowledges in its proposed initial and revised transition plan that its employment and day services for people with intellectual and developmental disabilities “have a significant bias toward facility-based supports” and carry “the greatest risk of being provided in settings with institutional qualities.”
196. For this reason, Ohio’s proposed transition plan suggests a redesign of employment and day services for people with intellectual and developmental disabilities already enrolled in waiver programs. It does not extend to individuals receiving ICF services who are not enrolled in home and community-based waiver programs. Thus, Ohio’s transition plan, which has yet to be approved by CMS, is unlikely to reach those currently institutionalized in large ICFs.
197. Finally, recent state budget initiatives plan to offer some residents of large ICFs integrated, community-based service options that would reduce the statewide census of people in private ICFs and state-operated developmental centers by 523 over a two-year period. Yet this limited service expansion cannot adequately meet the needs of thousands of class members in institutions who prefer and are qualified for community living. The Defendants are unwilling to make a firm commitment to continue these efforts.
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198. The Defendants also acknowledge the need to divert individuals with intellectual and developmental disabilities from unnecessary ICF admission, so that those who transition to the community are not immediately replaced by people at serious risk of institutionalization. However, the State has designated only a limited number of home and community-based waiver slots for this purpose, without offering a long-term solution to prevent future ICF admissions by meeting the needs of those at serious risk of institutionalization.
199. Furthermore, recognizing that Ohio’s ICF “footprint is one of the largest in the United States,” the Defendants have recently contracted with a non-profit entity to provide “preadmissions counseling” to people who are seeking admission to an ICF and “options counseling” to those currently institutionalized in ICFs. However, this counseling is limited to those entering or already placed in an ICF with nine or more beds. Somewhat inexplicably, it is designed to focus on ICF residents who have already expressed an interest in community living, as opposed to those who may have never been informed about community options or presented with alternatives to institutionalization.
200. People with intellectual and developmental disabilities and their families need and should receive individualized information regarding the feasibility of community-based alternatives to institutional care. Although the Defendants’ new “counseling” initiative recognizes the importance of face-to-face meetings as the standard for effective notice and information, it remains significantly limited in both scope and content. This and other recent initiatives fall short of remedying the discriminatory segregation of the Individual Plaintiffs and the members of the Plaintiff class.
201. These violations, compounded by the lack of transitional assistance for individuals and families who do express interest in community living, perpetuate the unnecessary
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institutionalization of people segregated in large ICFs and those at serious risk of

institutionalization in these facilities. Without a comprehensive plan to address the needs of tens

of thousands of class members who are now or will become unnecessarily institutionalized,

discriminatory segregation will remain a prominent feature in the Defendants’ service system,

and a continuing source of injury to the members of the Plaintiff class.

b)

The Defendants are capable of enacting the comprehensive, long-term

system reforms required to effectively remedy and prevent the ongoing

discriminatory segregation of the members of the Plaintiff class.

202. The Defendants’ recent rebalancing efforts and associated policy and funding

initiatives – while insufficient to remedy the segregation experienced by the members of the

Plaintiff class – illustrate the potential for a more comprehensive reform of the service system for

people with intellectual and developmental disabilities. They also underscore the Defendants’

capacity to identify and implement the strategies needed to ensure the Individual Plaintiffs and

the members of the Plaintiff class receive services in the most integrated settings appropriate to

their individual needs.

203. Ohio’s infrastructure and delivery system for home and community-based

services are capable of supporting people with intellectual and developmental disabilities in

integrated, community-based settings and could be expanded to remedy and prevent the

unnecessary and discriminatory institutionalization of tens of thousands of individuals with

intellectual and developmental disabilities by providing access to integrated residential,

employment, and day services required under federal law.

204. As long as the Defendants continue to maintain and rely upon segregated

residential, employment, and day services, without a clear, measurable, long-term plan for

achieving compliance with federal law, the Defendants’ administrative, operational, and funding

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decisions will fail to realize legal mandates under the ADA, Section 504, the Social Security Act, and the U.S. Supreme Court’s decision in Olmstead. VI. LEGAL CLAIMS
A. First Claim for Relief: Violation of Title II of the Americans with Disabilities Act (ADA)
205. The allegations of paragraphs 1 through 204 are hereby re-alleged and incorporated by reference.
206. The Individual Plaintiffs and the members of the Plaintiff class have disabilities that substantially limit one or more major life activities, such as self-care, learning, working, and brain function. 42 U.S.C. §§ 12102(1)(A), 12102(2). They are qualified to participate in the Defendants’ system of home and community-based programs and services, with or without reasonable modifications to the state’s rules, policies, or practices. 42 U.S.C. § 12131(2).
207. The Defendants, acting in their official capacities, are public entities within the meaning of Title II of the ADA. 42 U.S.C. § 12131(1)(A)&(B); 28 C.F.R. § 35.104.
208. The Defendants are violating Title II of the ADA and its implementing regulations by failing to provide access to the home and community-based services required to remedy or prevent unnecessary institutionalization of the Individual Plaintiffs and the members of the Plaintiff class and by segregating them, or subjecting them to serious risk of segregation, in large ICFs where they are often relegated to facility-based employment settings and day programs.
209. The Defendants are violating Title II of the ADA and its implementing regulations by administering, funding, and operating their service system for people with intellectual and developmental disabilities in a manner that fails to make residential,
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employment, and day services available in the most integrated setting appropriate to the needs of the Individual Plaintiffs and the members of the Plaintiff class.
210. Providing the Individual Plaintiffs and the members of the Plaintiff class with access to the integrated residential, employment, and day services required to remedy or prevent their unnecessary institutionalization would not fundamentally alter the Defendants’ service system for people with intellectual and developmental disabilities.
211. The Defendants lack a comprehensive and effectively working plan designed to provide the level of integrated home and community-based services required to remedy or prevent class members’ institutionalization.
B. Second Claim for Relief: Violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794
212. The allegations of paragraphs 1 through 211 are hereby re-alleged and incorporated by reference.
213. The Individual Plaintiffs and the members of the Plaintiff class have disabilities that substantially limit one or more major life activities, such as self-care, learning, working, and brain function. 29 U.S.C. § 705(20)(B); 42 U.S.C. § 12102. They are qualified to participate in the Defendants’ system of home and community-based programs and services, with or without reasonable modifications to the state’s rules, policies, or practices. 29 U.S.C. § 705(20)(B); 42 U.S.C. § 12102.
214. The Defendants receive federal financial assistance for their programs and activities within the meaning of Section 504 of the Rehabilitation Act of 1973. 29 U.S.C. § 794(b).
215. The Defendants are violating Section 504 of the Rehabilitation Act of 1973 and its implementing regulations by failing to provide access to the home and community-based
56

Case: 2:16-cv-00282-EAS-EPD Doc #: 1 Filed: 03/31/16 Page: 59 of 62 PAGEID #: 59
services required to remedy or prevent their unnecessary institutionalization and by segregating them, or subjecting them to serious risk of segregation, in large ICFs where they are often relegated to facility-based employment settings and day programs.
216. The Defendants are violating Section 504 of the Rehabilitation Act of 1973 and its implementing regulations by administering, funding, and operating their service system for people with intellectual and developmental disabilities in a manner that fails to make residential, employment, and day services available in the most integrated setting appropriate to the needs of the Individual Plaintiffs and the members of the Plaintiff class. 28 C.F.R. § 41.51(d).
217. Providing the Individual Plaintiffs and the members of the Plaintiff class with access to the integrated residential, employment, and day services required to remedy or prevent their unnecessary institutionalization would not fundamentally alter the Defendants’ service system for people with intellectual and developmental disabilities.
218. The Defendants lack a comprehensive and effectively working plan designed to provide the level of integrated home and community-based services required to remedy or prevent class members’ institutionalization.
C. Third Claim for Relief: Violation of the Social Security Act’s “Free Choice” Provision under 42 U.S.C. § 1396n(c)(2)(B)&(C)
219. Paragraphs 1 through 218 are hereby re-alleged and incorporated by reference. 220. The Individual Plaintiffs and the members of the Plaintiff class are Medicaideligible individuals with intellectual and developmental disabilities who are likely to meet ICF level of care criteria, which qualifies them for either ICF or home and community-based waiver services.
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Case: 2:16-cv-00282-EAS-EPD Doc #: 1 Filed: 03/31/16 Page: 60 of 62 PAGEID #: 60
221. The State of Ohio is required to operate its Medicaid program in compliance with the Social Security Act, 42 U.S.C. § 1396 and its implementing regulations governing level of care determinations and freedom of choice.
222. Defendants Kasich, Martin, and McCarthy have failed to meaningfully inform individuals who are determined to be likely to require an ICF level of care of the feasible alternatives to institutional placement, including their eligibility for, and the availability of, home and community-based services which could prevent or avoid their continued and unnecessary institutionalization in violation of 42 U.S.C. § 1396n(c)(2)(B)&(C).
223. As a result of this failure, the Individual Plaintiffs and the members of the Plaintiff class are denied the opportunity to make an informed decision regarding alternatives to institutionalization in large ICFs and opportunities for discharge from these facilities. VII. PRAYERS FOR RELIEF
WHEREFORE, the Individual Plaintiffs respectfully request that this Court do all of the following:
A. Certify this case as a class action pursuant to Fed. R. Civ. P. 23(b)(2); B. Issue a declaratory judgment that the Defendants are violating Title II of the ADA and Section 504 of the Rehabilitation Act of 1973 by failing to provide the Individual Plaintiffs and the members of the Plaintiff class with services in the most integrated setting appropriate to their needs, causing them to be institutionalized in large ICFs, or at serious risk of such institutionalization, and by virtue of residing therein, segregated in vocational and day programs; C. Issue a declaratory judgment that Defendants Kasich, Martin, and McCarthy are violating the Social Security Act, 42 U.S.C. § 1396n(c)(2)(B)&(C), by failing to inform the Individual Plaintiffs and the members of the Plaintiff class about feasible alternatives to institutional care available through Ohio’s home and community-based waiver programs;
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Case: 2:16-cv-00282-EAS-EPD Doc #: 1 Filed: 03/31/16 Page: 61 of 62 PAGEID #: 61
D. Grant permanent, injunctive relief to remedy the Defendants’ violations of the ADA and Section 504 of the Rehabilitation Act of 1973, including the expansion of home and community-based services required by the members of the Plaintiff class to avoid or prevent unnecessary institutionalization, and to provide access to integrated residential, employment, and day services;
E. Grant permanent, injunctive relief to remedy Defendants Kasich, Martin, and McCarthy’s violations of the Social Security Act, 42 U.S.C. § 1396n(c)(2)(B)&(C), including the provision of information to members of the Plaintiff class to enable them to choose between institutional care and home and community-based services;
F. Award the Individual Plaintiffs and members of the Plaintiff class their reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 12205, 29 U.S.C. § 794a, 42 U.S.C. § 1988, and any other applicable provision of law; and
G. Grant any other relief which is necessary and proper to protect the federal rights of the Individual Plaintiffs and the members of the Plaintiff class they represent.
Respectfully Submitted, s/Kerstin Sjoberg-Witt Kerstin Sjoberg-Witt (0076405) ksjoberg-witt@disabilityrightsohio.org Trial Attorney Kevin J. Truitt (0076405) ktruitt@disabilityrightsohio.org Alison McKay (0088153) amckay@disabilityrightsohio.org DISABILITY RIGHTS OHIO 50 West Broad Street, Suite 1400 Columbus, Ohio 43215 Telephone: 614-466-7264 Facsimile: 614-644-1888 Counsel for Plaintiffs
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Case: 2:16-cv-00282-EAS-EPD Doc #: 1 Filed: 03/31/16 Page: 62 of 62 PAGEID #: 62
Neil R. Ellis nellis@sidley.com SIDLEY AUSTIN LLP 1501 K Street N.W. Washington, DC 20005 Telephone: 202-736-8075 Facsimile: 202-736-8711
Kristen E. Rau krau@Sidley.com SIDLEY AUSTIN LLP One South Dearborn Chicago, Illinois 60603 Telephone: 312-853-9274 Facsimile: 312-853-7036
Cathy E. Costanzo ccostanzo@cpr-ma.org Kathryn L. Rucker krucker@cpr-ma.org Anna Krieger akrieger@cpr-ma.org CENTER FOR PUBLIC REPRESENTATION 22 Green Street Northampton, Massachusetts 01060 Telephone: 413-586-6024 Facsimile: 413-586-5711
Samuel R. Bagenstos sbagen@gmail.com 625 South State Street Ann Arbor, Michigan 48109 Telephone: 734-647-7584
Of Counsel
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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OIDO EASTERN DIVISION

PHYLLIS BALL, by her General Guardian, PHYLLIS BURBA, et al.,
Plaintiffs,
v.

Case No. 2:16-cv-00282 CHIEF JUDGE EDMUND A. SARGUS, JR. Magistrate Judge Elizabeth P. Deavers

JOHN KASICH, Governor of Ohio, in his official capacity, et al.,

Defendants.

OPINION AND ORDER

Plaintiffs Phyllis Ball, Antonio Butler, Caryl Mason, Richard Walters, Ross Hamilton, and the Ability Center of Greater Toledo (collectively "Plaintiffs")1 bring this class action on

behalf of themselves and other similarly situated individuals with intellectual and developmental

disabilities against Defendants John Kasich (in his official capacity as Governor of Ohio), Kevin

Miller (in his official capacity as Director of Opportunities for Ohioans with Disabilities), John

McCarthy (in his official capacity as Director ofthe Ohio Department ofMedicaid), John Martin

(in his official capacity as Director of the Ohio Department Developmental Disability), and the

Ohio Association of County Boards Serving People with Developmental Disabilities

(collectively, "Defendants"). Plaintiffs allege that Ohio's administration, management, and

funding of its service system for people with intellectual and developmental disabilities such as

themselves puts them at serious risk ofsegregation and institutionalization in violation of Title IT

of the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act as

interpreted by the Supreme Court's decision in Olmstead v. L.C., 527 U.S. 581 (1999), and the

1 PlaintiffNathan Narowitz was originally named as a party in the Complaint and this Motion. He has since withdrawn as plaintiff without prejudice to his rights to recover as a general member ofthe putative class.
1

Social Security Act, 42 U.S.C. § 1396n(c)(2)(B) & (C). This matter is before the Court for consideration of Defendant Kevin Miller's Motion to Dismiss (ECF No. 16), Defendant John Kasich's Motion to Dismiss (ECF No. 28), and Defendants John McCarthy's and John Martin's Goined by Defendant John Kasich) Motion to Dismiss (ECF No. 27). For the following reasons, Defendant Miller's Motion (ECF No. 16) is DENIED, Defendant Kasich's Motion (ECF No. 28) is DENIED in part with respect to the Rehabilitation Act claim and GRANTED in part with respect to the ADA and Social Security Act claims, and Defendant McCarthy and Martin's Motion (ECF No. 27) is DENIED.
I. BACKGROUND Plaintiffs are adults with intellectual and developmental disabilities who are institutionalized, or at serious risk ofinstitutionalization, in Intermediate Care Facilities ("ICFs") for individuals with intellectual disabilities with eight or more beds throughout Ohio. (Complaint ("Compl."), 1, ECF No. 1.) The Ability Center of Greater Toledo joins the named Plaintiffs on behalf of its constituents who also include people with intellectual and developmental disabilities. (/d. ~ 3.) Plaintiffs assert that they would prefer to reside in an integrated, community-based setting and receive employment or day services, "but due to the Defendants' administration, management, and funding of Ohio's service system for people with intellectual and developmental disabilities, they are experiencing or at serious risk of experiencing pervasive and widespread isolation and segregation." (/d.~ 1.) Placement in a large ICF, according to Plaintiffs, subjects individuals with intellectual or developmental disabilities to segregation and isolation from their non-disabled peers. (Id. ~ 4.) In Ohio, ninety percent of individuals residing in an ICF live in large ICFs with eight or more beds. (Id. ~ 136.) Arguing that such segregation is illegal under Olmstead v. L.C., 527 U.S. 581
2

(1999), in which the Supreme Court held that individuals with developmental disabilities receiving state-funded care have the right to receive such care in the community if appropriate, Plaintiffs argue that they are entitled to be served in the most integrated, least restricted setting appropriate for their individual needs. (Id ~ 99.) They additionally challenge the segregation in employment and day services and argue that due to the limited access to such integrated services (as opposed to segregated facility-based programs), they are deprived of meaningful community interactions and the dignity ofself-sufficiency.
Plaintiffs allege that in Ohio, approximately 2,500 out of 5,800 individuals currently housed in the state's network of public and private ICFs are on waiting lists for home and community-based services, with a median wait time of thirteen years. (ld ~ 6.) Another 40,000 individuals not placed in ICFs are also on waiting lists in Ohio awaiting such services. (ld ~ 7.) The source of this pent up demand for services, Plaintiffs allege, is Defendants' failure to make the requisite administrative and budgetary changes necessary to provide increased access to home and community-based services. (Jd ~ 10.) The State primarily makes such services available through Medicaid funding and large-scale "waiver" programs in which the Department of Medicaid agrees to waive or relax certain Medicaid requirements to allow for individuals with developmental or intellectual disabilities to live by themselves or in other community-based settings. Ohio currently operates four waiver programs: the Individual Options, Transitions Developmental Disabilities (currently being phased out), Level One, and Self Empowered Life Funding ("SELF") waivers. (Id ~~ 178-82). Funds for the Level One and SELF waivers are more strictly limited and therefore can only serve people with minimal needs, whereas the Individual Options waiver has no individual funding limit.
Plaintiffs allege that rather than investing in more waivers and funding for such services,
3

allegedly continue to maintain and invest in large institutional care, away from the national trend. (Id. ~ 8-9.) Plaintiffs allege that local county boards of developmental disabilities are discouraged from providing waiver services over services through ICFs because of the way in which the State allocates its funding. They argue that because the state matches federal Medicaid funds for ICF services, but requires local boards to supplemental federal funding for waiver
programs, ICF placement is less of a financial burden for county boards. (Id. mf 185- 86.) Thus,
Defendants have the ability to remedy the issue by expanding funding to the existing home and community-based waiver programs. Defendants disagree and contend that the number of individuals served through waivers has substantially increased from 5,527 in 1999 to 35,191 in 2015, and the number of individuals served in ICFs has decreased from 59% in 1999 to 15% in 2015. (Defendants Martin and McCarthy's Motion to Dismiss ("Defs.' Mot.") at 4, ECF No. 27.)
Plaintiffs assert that Defendants' actions (or inaction) violate the Americans with Disabilities Act ("ADA"), Section 504 of the Rehabilitation Act, and the Social Security Act. They seek to bring a class action on behalfofapproximately 27,800 similarly situated adults with intellectual and developmental disabilities throughout Ohio who are Medicaid eligible and also at risk of institutionalization or placement in a large ICF due to limited access to home and community based services. (Id. ~ 2.) In their Complaint, Plaintiffs request that the Court certify this case as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2}, issue a declaratory judgment that Defendants are in violation of federal law in their administration of services to intellectually and developmentally disabled individuals, and grant injunctive relief against defendants to remedy the alleged violations.
Now before the Court for decision are Defendants' three motions to dismiss. Defendant Kevin Miller seeks dismissal of Plaintiffs' claims, arguing that Disability Rights Ohio is
4

precluded under federal law from bringing this class action on behalf of Plaintiffs because it receives federal funds as Ohio's designated Client Assistant Program. (ECF No. 16.) Defendant Governor John Kasich seeks dismissal as a party, asserting Eleventh Amendment immunity and failure to state a claim. (ECF No. 28.) Finally, Defendants John McCarthy and John Martin challenge Plaintiffs' claims on various grounds. ECF No. 27.) The Court will consider each motion in tum.
D. STANDARD Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." To survive a motion to dismiss for failure to state a claim under Federal Rule ofCivil Procedure 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to "state a claim for relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (clarifying the plausibility standard articulated in Twombly). "A claim has facial plausibility when the plaintiff pleas factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. The factual allegations ofa pleading "must be enough to raise a right to relief above the speculative level. _.." Twombly, 550 U.S. at 555. "All of the well-pleaded allegations of the complaint must be treated as true and construed most favorably toward the non-movant, though we need not accept Plaintiff's legal conclusions or draw unwarranted factual inferences." Thomas v. Publishers Clearing House, Inc., 29 F.App'x 319, 322 (6th Cir. 2002). The Court "need not, however, accept conclusory allegations or conclusions of law dressed up as facts." Erie Cnty., Ohio v. Morton Salt, Inc., 702 F.3d 860, 867 (6th Cir. 2012). In ruling on a motion to dismiss, the court may consider written instruments that are
5

exhibits to a pleading, as those are considered part of the pleading for all purposes. Campbell v. Nationstar Mortg., No. 14-1751,611 Fed. App'x 288,291-92,2015 WL 2084023, at *3 (6th Cir. May 6, 2015) (citing Fed. R. Civ. P. 10(c)). A court may also consider "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.'' Id. (citing Tellabs, Inc. v. Makor Issues &Rights, Ltd., 551 U.S. 308,322 (2007)).
DI. DEFENDANT KEVIN MILLER'S MOTION TO DISMISS Defendant Kevin Miller, in his official capacity as Director of Opportunities for Ohioans with Disabilities, moves to dismiss the putative class action on the grounds that Disability Rights Ohio-whose three attorneys filed and signed the instant Complaint-is precluded by federal law from bringing a class action on behalf of its clients. (Defendant Miller's Motion to Dismiss ("Miller Mot.") at 3, ECF No. 16.) He seeks dismissal of the action, or in the alternative, disqualification ofthe three Disability Rights Ohio attorneys from further participating in the case. Under the Rehabilitation Act, Congress makes funds available to states to establish and carry out Client Assistance Programs ("CAPs") to provide information about vocational rehabilitation services available to individuals with disabilities. 29 U.S.C. § 732(a}-(b). CAPs are tasked with the "assistance and advocacy in pursuing legal, administrative, or other appropriate remedies to ensure the protection of the rights of such individuals under this chapter and to facilitate access to the services funded under this chapter through individual and systemic advocacy." Id. § 732(a). The statute permits the Governor of each state to designate a public or private agency to serve as the state's agency to receive the funds. § 732(c). Ohio's designated CAP is Disability Rights Ohio. (Miller Mot. at 4-5.) The statute further provides: (d) CLASS ACTION BY DESIGNATED AGENCY PROHffiiTED The agency designated under subsection (c) ofthis section may not bring any class action in carrying out its responsibilities under this section.
6

§ 732(d). Miller argues that because all three attorneys who signed Plaintiffs' complaint are employed by Disability Rights Ohio and bring this action to carry out their responsibilities on behalfof their clients, they are in clear violation§ 732(d).
The Department of Education is tasked with overseeing the CAP program and proposing regulations to the statute. 34 C.P.R. § 370.45 is the regulation that correlates with§ 732(d) of the statute, and similarly provides: "A designated agency may not bring any class action in carrying out its responsibilities under this part." The Secretary of Education commented on this particular provision after the Rehabilitation Act was amended in 1992 and the Secretary proposed changes to the regulations thereafter. Despite a former remark stating the contrary,2 the Secretary proposed that the text ofthe regulation would not change, but clarified that
The prohibition on class actions by a designated agency applies only to the use of CAP funds to support in whole or in part a class action. These regulations do not apply to a designated agency's use ofnon-CAP funds. Client Assistance Program, 58 FR 52614-01 (Oct. 8, 1993). Thus, Plaintiffs maintain that Disability Rights Ohio does not violate § 732(d) by bringing this class action because it is not using CAP funds to finance the lawsuit. (Plaintiffs' Response to Defendants' Motions ("Pis. Resp.") at 67, ECF No. 34.) Instead, Plaintiffs state that they are bringing this action to fulfill its role as the designated "protection and advocacy agency" for Ohio. Disability Rights Ohio is currently the recipient of seven federal protection and advocacy grants in addition to its CAP grant. Specifically here, Disability Rights Ohio is using funds from its Protection and Advocacy of Rights for Individuals with Developmental Disabilities ("PADD") grant to fund this action. See 42 U.S.C. § 15043(a). Unlike the CAP
2 The Secretary ofEducation previously commented that "The Secretary interprets [the statute] to prohibit a designated agency from bringing a class action, regardless ofthe funding sources, if the effect ofthe class action would be to carry out the agency's client assistance responsibilities. Client Assistance Program, 50 FR 9960-01 (Mar. 12, 1985).
7

program, the PADD program anticipates that its funds may be used to pursue class action litigation. 45 C.F.R. § 1326.24 ("Allotments may be used to pay the otherwise allowable costs incurred . . . in bringing lawsuits in its own right to redress . . . rights violations impacting the ability of individuals with developmental disabilities to obtain access to records and when it appears on behalf of named plaintiffs or a class of plaintiff for such purposes.") (emphasis added). Plaintiffs' arguments are well taken.
Nevertheless, Defendant argues that the plain language of the statute compels a different interpretation because it makes no reference to the particular funds, but simply provides that a CAP may not bring a class action "in carrying out its responsibilities under the statute." Plaintiffs contend that an agency is not "carrying out its responsibilities" as a CAP if it is not using CAP funds, consistent with the Secretary's position. Moreover, the introductory provision to the regulations of CAPs provides that "[t]he following regulations apply to the expenditure of funds and the administrative of the program under this part:" and lists ''the regulations in this part 370." 34 C.F.R. § 370.5(c). The Court ultimately agrees that "any application of the CAP statute to bar the class action here would be contrary to the purpose of the PADD program and a violation of Congress' intent for that program." (Pis. Resp. at 79.)
Moreover, as Plaintiffs note, "a court should not be drawn into resolving a collateral issue of whether the client is eligible to be represented in court by the agency's attorney pursuant to the agency's governing statute, rules, or by-laws," and that "[o]ther courts . .. have responded that such challenges are best addressed by the funding authorities." Lindquist v. Bangor Mental Health Inst., 770 A.2d 616, 618 (Me. 2001). In other words, the scope of representation of Disability Rights Ohio to represent Plaintiffs is a collateral issue that is best left to the governing agency. Accordingly, Defendant Miller's Motion to Dismiss (ECF No. 16) is DENIED.
8

IV. DEFENDANT KASICH'S MOTION TO DISMISS Defendant John Kasich, in his official capacity as the Governor of Ohio, moves to dismiss all Plaintiffs' claims asserted against him, claiming that the Court lacks jurisdiction over their claims against him because he is entitled to sovereign immunity under the Eleventh Amendment to the United States Constitution, and alternatively that Plaintiffs fail to state a plausible claim for relief (ECF No. 28.) A. Rule 11(b)(l) Standard Federal Rule of Civil Procedure 12(b)(l) is the proper vehicle to assert Eleventh Amendment immunity. Lee Testing & Eng'g Inc. v. Ohio DOT, 855 F.Supp.2d 722, 725 (S.D. Ohio 2012).Defendants moving under this Rule have two options-a facial attack of the pleadings, or a factual attack. See DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). Defendant here dos not contest the facts laid out in the complaint and thus brings a facial attack. Specifically, Defendant argues that Plaintiff's complaint fails the requirement to establish this Court's jurisdiction under Rule 8(a}, which mandates a complaint contain "a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support." In deciding the merits of a facial attack under 12(b)(l), "the court must take the material allegations of the petition as true and construed in the light most favorable to the nonmoving party." United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). Thus, a facial attack on the pleading under Rule 12(b)(1) mirrors the standard of review on a motion brought under Rule 12(b)(6). In response to a challenge under Rule 12(b)(l), "the plaintiff has the burden of proving jurisdiction in order to survive the motion." Nichols v. Muskingum College, 318 F.3d 674, 677 (6th Cir. 2003) (citations omitted) (internal quotation marks omitted).
9

B. Discussion
The Eleventh Amendment provides sovereign immunity for states from certain lawsuits. It reads: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. The Supreme Court has held that this language forbids private lawsuits by citizens against their own state. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72-73 (2000); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). When suits are filed against state officials in their official capacities, they "should be treated as suits against the State," Hafer v. Melo, 502 U.S. 21, 25 (1991), because in an action against a state officer acting in an official capacity, ''the plaintiff seeks damages not from the individual officer, but from the entity for which the officer is an agent.'' Pusey v. City of Youngstown, 11 F.3d 652, 657 (6th Cir.l993). Therefore, "an officialcapacity suit is, in all respects other than name, to be treated as a suit against the entity." Hendricks v. Kasich, No. 2:12-CV-729, 2013 WL 2243873, at *7 (S.D. Ohio May 21, 2013) (quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985)).
There are three exceptions to Eleventh Amendment immunity: (1) the State has consented to suit; (2) Congress has abrogated the State's immunity; or (3) the suit is for prospective relief against a state official in his official capacity under Ex parte Young, 209 U.S. 123 (1908). See Thiokol Corp. v. Mich. Dep't ofTreasury, 987 F.2d 376, 381 (6th Cir. 1993).
1. Rehabilitation Act Claim With respect to Plaintiffs' Rehabilitation Act claim, this Court has held before that there
Is no dispute that "States waive their Eleventh Amendment immunity with regard to Rehabilitation Act claims when they accept federal funds." Martin v. Taft, 222 F. Supp. 2d 940,
10

957 (S.D. Ohio 2002) (citing Carten v. Kent State Univ., 282 F.3d 391, 398 (6th Cir.2002); Nihiser v. Ohio EPA, 269 F.3d 626, 628 (6th Cir. 2001)). In amending the Rehabilitation Act, Congress expressly provided: "A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973." 42 U.S.C. § 2000d-7 {1986). In their Complaint, Plaintiffs allege that the Defendants receive federal financial assistance for their programs and activities within the meaning ofSection 504 of the Rehabilitation Act. (Compl.1[214.) They further allege that the Governor, though the Governor's Office of Health Transformation, received over $400,000 in federal appropriations in 2016. (Pis. Resp. at 64, n.56 (citing Budget in Detail, H.B. 64, 13lst Gen. Assemb. (Ohio 2015)).)
Although Defendant argues that the "waiver of sovereign immunity is limited and applies only to the individual agency that receives the federal funds," the Court finds that Plaintiffs here have met their burden. (Defendant K.asich's Motion to Dismiss ("K.asich Mot.") at 9, ECF No. 28 (citing Doe v. Nebraska, 345 F.3d 593, 598 (8th Cir. 2003)).) Accepting all factual allegations as true, the Court finds that the Governor has waived his Eleventh Amendment immunity with respect to Plaintiffs' Rehabilitation Act claims by agreeing to accept federal funds. Therefore, with respect to Plaintiffs' Rehabilitation Act claim, Defendant Kasich's Motion to Dismiss is DENIED.
2. ADA and Social Security Act Claim Unlike the Rehabilitation Act, which expressly abrogates state immunity, Plaintiffs assert
jurisdiction over Defendant Kasich for their ADA and Social Security Act claims under the Ex Parte Young exception. In his Motion to Dismiss, Governor Kasich argues that he lacks a sufficient connection to the direct enforcement of the laws as required and instead only retains
11

broad authority to appoint officials, submit budgets, and oversee policy initiatives. (Kasich Mot. at4.)
Under Ex parte Young, a federal court can issue prospective relief compelling a state official to comply with federal law because "it is beyond dispute that federal courts have jurisdiction over suits to enjoy state officials from interfering with federal rights." S & M Brands, Inc. v. Cooper, 527 F.3d 500, 507---{)8 (6th Cir.2008). For the exception to apply, however, the officer named in the suit must have "some connection with the enforcement of the act " Ex parte Young, 209 U.S. at 157; see also Russell v. Lundrergan-Grimes, 784 F.3d 1037, 1047 (6th Cir. 2015) ("Young does not reach state officials who lack a 'special relation to the particular statute' and '[are] not expressly directed to see to its enforcement."' (quoting Young)). In other words, "The state official sued [] must have, by virtue of the office, some connection with the alleged unconstitutional act or conduct of which the plaintiff complains." Floyd v. Cty. ofKent, 454 F. App'x 493, 499 (6th Cir. 2012). Absent such connection, "General authority to enforce the laws of the state is not sufficient to make government officials the proper parties to litigation challenging the law." Russell v. Lundergan-Grimes, 784 F.3d 1037, 1048 (6th Cir. 2015).
Courts have not read Young expansively. Children's Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1415 (6th Cir. 1996) (citing Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 104 (1984)). Generally, a state executive's role in appointing and supervising officials, setting policy, and making budget recommendations fail to meet the sufficient connection requirement under Young. See, e.g., Hendricks v. Kasich, No. 2:12-cv-729, 2013 WL 2243873, at *9 (S.D. Ohio May 21, 2013) (Governor's executive and budget authority not sufficient to show responsibility for enforcement of any law or policy relating to the claim); Peter B. v. Sanford, No. 6:10-767,2012 WL 2149784 (D.S.C. June 13, 2012) (general authority
12

over state Medicaid program was insufficient to waive governor's ilwnunity in suit alleging Olmstead violations).
Here, Defendant Kasich is "charged with seeing that the laws of the State of Ohio are
faithfully el(ecuted" and "is responsible for directing, supervising, controlling, and setti11g policy
for the executive departments of state government." (Compl. '1f 79-81.) Specifically, Plaintiffs assert that by virtue of his role as Governor, "Defendant Kasich ultimately controls decisions about the proposed budget submitted to the Legislature and specifically has discretion to seek
funds to support community programs ..."(Pis. Resp. at 58.) He is also responsible for appointing
the directors of the Ohio Department of Developmental Disabilities, Ohio Department of Medicaid, and Opportunities for Ohioans with Disabilities, whose directors are also named as Defendants in this suit. (fd. at 60.) As other courts have held, su.ch general supervisory powers
are insufficient to subject an official to suit. See, e.g., Sanford, 2012 WL 2149784 at *5 (noting
that while the governor has the power to review and comment on a state's Medicaid plan, "this does not create any enforcement rights in the governor"). The Court finds that these general
powers fail to provide a sufficient connection to the direct enforcement ova the expansion of community-based services here. Indeed, "[w]ere the law otherwise, the exception would always apply. Governors who influence state executive branch policies (which virtually all governors do) would always be subject to suit under Ex parte Young. The exception would become the rule" Tohono O'odham Nation v. Ducey, 130 F. Supp. 3d 1301, 1311 (D. Ariz. 2015).
Plaintiffs further argue that Govemor Kasich's Executive Order 2011-02K, which created the Governor's Office for Health Transformation, establishes a closer connection between the
Governor and the laws at issue. (Id. '!I 82.) The Office for Health Transfonnation is tasked with
carrying out "the immediate need to address Medicaid spending issues, plan for the long-term
13

efficient administration of Ohio' s Medicaid program, and act to improve overall health system performance in Ohio." (/d.) Plaintiffs allege that since its creation, "the Office for Health Transformation has coordinated and implemented planning and budget activities for the State of Ohio's compliance with the U.S. Supreme Court's decision in Olmstead v. L.C., 527 U.S. 581 (1999). (/d.) The Office's annual budget documents states that the office "has been working to rebalance Medicaid spending toward less expensive home and community based services.'' (Pis. Resp. at 57 n.45.) Yet, similar to the other state agencies whose directors are named in this suit, the Governor appoints a director to the Office to oversee its day-to-day operation and thereafter retains broad oversight authority to help coordinate policies among the various agencies. (Kasich Mot. at 8.) While the Governor may direct broad policy initiatives to the various state agencies through his Office of Health Transformation, the agencies retain responsibility for the direct enforcement of those policies. Plaintiffs have failed to show any responsibility by the Governor for the direct enforcement over such policies beyond his general executive authority.
Finally, Plaintiffs rely on Martin v. Taft, 222 F. Supp. 2d 940, 957 (S.D. Ohio 2002) to argue that the governor is a proper defendant. In Martin, a similar class of plaintiffs brought suit against various state officials in their official capacities, including former Governor Taft, to likewise challenge the State's provision of services to individuals with intellectual and developmental disabilities. (Pis. Resp. at 55.) Plaintiffs assert that because ''the defendants in Martin never challenged the inclusion of the Governor as a party" and the court never discussed the issue, that he must be a proper party here. However, the lack of discussion on an issue that was not raised is not particularly instructive. The Court's position on a matter on which it did not speak cannot be gleaned one way or another. The issue was simply not raised in Martin as it is here. This argument is not well taken.
14

Keeping in mind Defendant' s own affmnation that the official capacity claim against Governor Kasich is redundant because "Plaintiffs bring claims against the state agencies responsible for managing Ohio's developmental disability services," the Court finds that Defendant Kasich is entitled to immunity under Ex parte Young and that the remaining Defendants are capable of providing the relief sought by Plaintiffs without his inclusion. Accordingly, Defendant Kasich Motion to Dismiss with respect to Plaintiffs' ADA and Social Security Act claims is GRANTED.
In sum, Defendant Kasich's Motion to Dismiss is GRANTED in part on Plaintiffs' ADA and Social Security Act claims and DENIED in part on Plaintiffs' Rehabilitation Act claim. Accordingly, Plaintiffs' ADA and Social Security claims against Defendant Kasich are DISMISSED.
V. DEFENDANT MCCARTHY'S AND MARTIN'S MOTION TO DISMISS Defendants John McCarthy and John Martin, in their official capacities, move to dismiss Plaintiffs' claims on several grounds, each of which are addressed in turn. (Defendants Martin and McCarthy's Motion to Dismiss ("Defs.' Mot."), ECF No. 27.) Defendant John K.asich in his official capacity as Governor of Ohio also fully joins and incorporates Defendants Martin and McCarthy's motion as applying equally to him (now solely with respect to the Rehabilitation Act claim). A. Effect ofMartin Consent Decree and Res Judicata on Plaintiffs' Claims Defendants argue Plaintiffs' Complaint violates the contractual terms of a previous class action settlement reached in Martin v. Taft, Case No. 89-cv-362 (S .D. Ohio) in 2007 in which the plaintiffs agreed to waive any future claims that they could have brought in the prior action. Defendants further contend that principles of res judicata compel the dismissal of Plaintiffs'
15

claims for similar reasons. 1. Martin Consent Decree In Martin, a class ofplaintiffs with developmental disabilities brought an action on behalf
of "all mentally retarded or developmentally disabled Ohioans who are, or will be, in need of community housing and services which are nonnalized, home-like, and integrated, and a subclass who, in addition to being members of the class, are or will be, Medicaid recipients" against the Governor of Ohio, the director of the Ohio Department of Mental Retardation and Developmental Disabilities, and the director ofthe Department of Job and Family Services, each in their official capacity. (Consent Order, Ex. A. to Defs.' Mot., ECF No. 27-1.)
While the litigation was ongoing, the Supreme Court issued its decision in Olmstead v. L.C., 527 U.S. 582 (1999). In Olmstead, the Court held that the unnecessary institutionalization of mentally disabled persons is a form of discrimination in that "placing mentally disabled persons in institutions when they are capable of living in the community perpetuates the stereotypes that such individuals are unworthy or incapable of participating in community life," and because "confinement in an institution deprives the individual of participation in a broad spectrum of important activities . .." Id. at 970. Acknowledging that under 28 C.P.R. § 35.130(d), "[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities," the Court concluded that mentally disabled individuals receiving state-funded care have the right to receive that care in the community ''when the State's treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated." Id. at 587.
Guided by the Olmstead decision, and after nearly two decades of litigation, the parties
16

reached an agreement outlined in a Consent Order on March 5, 2007. Per the terms of the Consent Order, the defendants agreed to seek 1500 additional waiver slots and$ 4.2 million in Medicaid funding for community-based housing in the 2008-2009 fiscal year, for which plaintiffs agreed to release Defendants and their successors "from current and future claims or actions regarding any and all matters that are or could have been brought as part of this litigation." (Consent Order~ 6.) However, the Order also stated that "The Order shall terminate on June 30, 2009," until which time the Court had jurisdiction over its enforcement. (/d. 1M[7, 11.)
Defendants argue that Plaintiffs here are attempting to re-litigate Martin because they were dissatisfied with the deal they struck. They argue that "Plaintiffs live in the world that they bargained for in Martin" and cannot now renegotiate the outcome. (Defendants' Reply in Support of Defs.' Mot. ("Defs.' Reply") at 12, ECF No. 43.) Contrary to the assertion that the Martin plaintiffs agreed to forever waive all claims in exchange for the one-time two-year increase, the plain language of the Order clearly states that the entire Consent Order would terminate on June 30, 2009, which rationally includes the release provision as well. An interpretation to the contrary could lead to the termination provision to be read out of the agreement. Instead, the release provision can be reasonably interpreted to prohibit any further claims during the duration of the Consent Order, meaning between March 5, 2007 and June 30, 2009. This is plausible given that the one-time bargained-for adjustment was made in the context of the preceding eighteen years ofprotracted litigation. According to Plaintiffs, this interpretation reflects the mutual understanding the parties held. At a fairness hearing held the same day the Consent Order was approved, Plaintiff's counsel described the settlement as limited to two years, after which point "if it works, we're done, and we can reassess where Ohio is in terms of its
17

obligations under Title II." (Pis. Resp. at 15 (citing Transcript of Mar. 5, 2007 Fairness Hearing at 5, Martin v. Strickland Case No. 2:89-cv-362, ECF No. 803.) Defendants did not object to this statement. Thus, Plaintiffs have pled sufficient facts showing that the Consent Order does not prohibit the instant suit against Defendants based on new allegations that arose after the termination of the agreement.
2. Res Judicata Defendants further argue that even if the specific terms of the Martin Consent Order do
not prohibit Plaintiffs' suit, the principles of res judicata based on the Martin case do. The Doctrine of res judicata, or claim preclusion, prohibits successive litigation of the very same claim by the same parties. New Hampshire v. Maine, 532 U.S. 742, 748 (2001). Res judicata has four elements that the moving party has the burden of showing: (1) there was a final decision on the merits by a court ofcompetent jurisdiction; (2) there is a subsequent action between the same parties or their privies; (3) an issue in the subsequent action was litigated or should have been litigated in the prior action; and (4) an identify of the causes of action. Allied Erecting & Dismantling Co. v. Genesis Equip. & Mfg., Inc., 805 F.3d 701, 709-09 (6th Cir. 2015); Hamilton's Bogarts, Inc. v. Michigan, 501 F.3d 644, 650 (6th Cir.2007).
The parties apparently do not dispute that the Consent Order in Martin represented a final decision on the merits3 or that it involved the same parties or their privies as the parties here. Thus, the issue here is whether the current litigation raises the same issue that was either litigated or should have been litigated in the prior action, and whether the causes of action are the same. The third and fourth elements of claim preclusion ''require much the same inquiry:" whether the second action arises out of the same transaction out of which the first action arose. Pram Nguyen
3 Consent orders are judgments and thus confer claim preclusion, but because the issues were not actually litigated in
cases resolved by consent orders, these judgments do not ordinarily confer issue preclusive effect unless it was clear
that the parties intend their agreement to have such an effect. Arizona v. California, 530 U.S. 392, 414 (2000) 18

ex rei. United States v. City of Cleveland, 534 F. App'x 445, 451 (6th Cir. 2013) (citing
Restatement (Second) of Judgments§ 24(1)).
Plaintiffs here allege that despite Martin, the State has still failed to make the requisite
administrative and budgetary changes providing greater access to integrated services under
Olmstead, and by failing to do so continues to violate Plaintiffs' rights. Essentially they allege a
theory ofa continuing violation by Defendants. In Lawlor v. National Screen Service Corp., 349
U.S. 322 (1955), the Supreme Court recognized that even when a subsequent claim involves
"essentially the same course of wrongful conduct," res judicata cannot extinguish claims that did
not exist when the previous suit was brought. /d. at 327-28. In other words, new wrongful
conduct, even if it is the same conduct previously alleged, may establish a new cause of action.
The Sixth Circuit has elaborated on the continuing violation theory for when a plaintiff alleges
an ongoing course of conduct:
Ordinarily, the ..transaction" that gives rise to a cause of action will be clearly delineated. A car accident victim, for example, must bring all tort claims related to the accident in a single suit or be barred from raising them later. However, when a plaintiff alleges an ongoing course of harmful conduct, as with a nuisance or pattern of harassment, the task of pinpointing the transaction becomes more challenging. On the one hand, a plaintiff should not be permitted to repeatedly challenge the same conduct over and over, but neither should a defendant have perpetual immunity from suit based on a single adjudication that may have ended in settlement or a decision in the plaintiffs favor. A successful plaintiff should not be forever barred from asserting new claims based on continuous wrongful conduct, even if that conduct is identical to the subject of a prior suit.
The solution to this dilemma can be found in the interplay between the doctrines of claim and issue preclusion. If a plaintiff sues a defendant more than once based on an ongoing course of conduct, the doctrine of claim preclusion will typically not prevent the plaintiff from asserting a cause of action that arose after the first suit was decided. Because it did not yet exist, such a cause of action literally could not have been brought in the first suit. However, once a court actually litigates the merits of an issue, the doctrine of issue preclusion will prevent a plaintiff from relitigating the issue in a subsequent suit.
19

Nguyen, 534 F. App'x at 451-52 (citations omitted). The Sixth Circuit in Nguyen determined that the defendant was subject to a new cause of action under the Clean Air Act because it continued to violate the Act by operating without the required permit, and not just for failing to secure the permit initially. ld. at 452-53. Other cases have similarly declined to apply res judicata to cases that allege new actions that arose after the previous judgment. See e.g., Huguley v. Gen. Motors Corp., 52 F.3d 1364, 1373 (remanding for determination of whether continuing acts that occurred post-decree stated a claim for disparate treatment); Bronson v. Bd. ofEduc. of City Sch. Dist. of Cincinnati, 525 F.2d 344, 349 (6th Cir. 1975) (1965 judgment in school desegregation case barred pre- but not post-1965 claims in second action based on continuing wrongful acts).
Arguing that Defendants have a continuing obligation under the ADA, Rehabilitation Act, and Social Security Act to administer the relevant programs in the most integrated setting, Plaintiffs contend that the State continues to violate these statutes by providing such services in settings that are unnecessarily segregated. As outlined in Olmstead, the relevant regulations require states to "administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R § 35.130(d). Thus, as in Nguyen, each day they experience a violation of their rights creates "a new claim or cause of action." (Pis. Resp. at 18 (citing 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4409 (2d ed. 2002).) In their Complaint, Plaintiffs allege that they are currently being segregated or are at risk of segregation in large ICFs in violation of the Olmstead mandate that individuals with developmental or intellectual disabilities be offered care and services in a more integrated setting. They allege that despite Defendants' efforts over the years, approximately 5,800 individuals still reside in the state's network ofpublic
20

and private ICFs, 2,500 ofwhom (:in addition to 40,000 not :in ICFs) are on waiting lists for home and community-based services with a median wait time of thirteen years. (Compl. ~ 6, 7.) At this
stage, Plaintiffs have sufficiently pled that, with the Martin Consent Order no longer in effect,
the State's subsequent violation ofthe law could trigger a new claim.
In addition to alleging that Defendants have continued to violate the law post-Martin,
Plaintiffs also assert that the underlying facts and surrounding regulatory regime have changed since the Consent Order terminated. "Where 'important human values-such as the lawfulness ofcontinuing personal disability or restraint-are at stake, even a slight change of circumstances may afford a sufficient basis for concluding that a second action may be brought."' (Pis. Resp. at 22 (citing Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292, 2305 (2016) and the
Restatement (Second) of Judgments § 24 cmt. f).) While the plaintiffs in Martin challenged the
segregation of individuals with developmental disabilities in residential settings, here Plaintiffs additionally challenge the segregation of Plaintiffs in employment and day services. Though
Defendants argue that the Martin plaintiffs could have brought these additional claims at the
time, federal law has since clarified that the integration mandate that applies to residential services applies to employment and day programs as well. (!d. (citing the Workforce Innovation and Opportunity Act of 2014, 29 U.S.C. § 701, et.seq. and new federal regulations from the Centers for Medicaid and Medicare Services enacted in 2014, 42 C.P.R. § 441.301(c)(2)(i).).) For :instance, new regulations from CMS regarding Medicaid waiver programs clarify that services funded through waiver programs must be delivered in an integrated setting that "supports full access of individuals . . . to the greater community, :including opportunities to seek employment and work ..." 42 C.P.R.§ 441.301(c)(2)(i).
The Court finds that Plaintiffs have sufficiently stated a claim for relief. Given that the
21

Consent Order in Martin terminated in 2009 in addition to Plaintiffs' new allegations herein, the
causes of action that arose subsequent to the 2009 termination of the Consent Order are not barred by
res judicata or the terms ofthe Consent Order, which by its own terms expired on June 30, 2009.
C. Ripeness ofPlaintiffHamilton's Claims Defendants next move to dismiss the claims of Plaintiff Ross Hamilton4 pursuant to Rule
12(b)(l) as not ripe because he is not currently residing in an ICF and has shown that he is at
serious risk of institutionalization.
In accordance with the limitations on judicial power under Article III, the ripeness
doctrine prevents federal courts from prematurely adjudicating cases. Warshak v. United States,
532 F.3d 521, 525 (6th Cir. 2008). "A claim is not ripe for adjudication if it rests upon contingent
future events that may not occur as anticipated, or indeed may not occur at all." Texas v. United
States, 523 U.S. 296, 300 (1998). With respect to cases brought alleging violations of Olmstead,
however, the Department of Justice ("DOJ") has issued a statement making clear, at least in its
view, that Olmstead relief is not limited to individuals currently institutionalized but also applies
to persons at serious risk of institutionalization or segregation. See Statement of the
Department of Justice on Enforcement of the Integration Mandate of Title II of the
Americans with Disabilities Act and Olmstead v. L.C. (June 22, 2011),
https://www.ada.gov/olmstead/q&a_olmstead.htm. The DOJ explains that:
[T]he ADA and the Olmstead decision extend to persons at serious risk of institutionalization or segregation and are not limited to individuals currently in institutional or other segregated settings. Individuals need not wait until the harm of institutionalization or segregation occurs or is imminent. For example, a plaintiff could show sufficient risk of institutionalization to make out an Olmstead violation if a public entity's failure to provide community services or its cut to such services will likely cause a decline in health, safety or welfare that would
4 PlaintiffNathan Narowitz was previously included in this section ofDefendant's Motion prior to his withdrawal as a plaintiff to the action. Any arguments regarding his particular status as a plaintiff will be omitted from the discussion.
22

lead to the individual's eventual placement in an institution. /d. Given that Congress expressly delegated the DOJ to issue the relevant regulation, most courts give deference to this interpretation. See, e.g., Davis v. Shah, 821 F.3d 231, 263 (2d Cir. 2016) ("DOJ's interpretation of [the integration] provision is 'controlling unless plainly erroneous or inconsistent with the regulation."' (internal citation omitted)); Pashby v. Delia, 709 F.3d 307, 322 (4th Cir. 2013) ("Because Congress instructed the DOJ to issue regulations regarding Title II, we are especially swayed by the DOJ's determination that 'the ADA and the Olmstead decision extend to persons at serious risk of institutionalization ...").
Plaintiffs contend that the State's failure to provide sufficient community-based services is likely to lead to Plaintiff Hamilton's eventual placement in an institution given that he has significant disabilities and is in need of constant care. Hamilton is a 22-year-old man with autism and lives at horne with his mother, who is 56-years-old and acts as Hamilton's primary caregiver. (Compl. ~ 59-60.) Mrs. Hamilton works full time to support her son and herself. Hamilton is enrolled in Medicaid and had been on the waiting list for both Individual Options and Level One waiver programs for seven years. Two weeks before this action was filed, Hamilton was approved for a Level One waiver, but argues that the services provided through the program are segregated facility-based services that fail to provide meaningful community participation and contact.
Defendants acknowledge that a plaintiff need not be currently institutionalized to have standing, but argue that any risk of institutionalization Hamilton in particular faces is speculative and contingent upon several intervening events. Defendants hypothesize that Hamilton would first have to face a change in medical or financial circumstances so that his mother would no longer be able to act as his primary caregiver. They argue that this situation could place him at
23

risk of substantial harm, in which case he "would be in a very different position on waiver waiting lists than [he is} now, and could get services quickly." (Defs. Reply at 21.) In other words, if such a situation arises, Defendants maintain that Hamilton would likely be granted an "emergency status" waiver under Ohio law for individuals on waiting lists who are "at risk of substantial self-harm or substantial hann to others if action is not taken within thirty days," such as when a person suffers a loss in residence or caretaker. Ohio Rev. Code §§ 56126.042(A) & (D). However, such assurance is also speculative. As the Seventh Circuit held in a similar situation, the "hypothetical availability" of a waiver did not make the plaintiff's at-risk claim unripe. Steimel v. Wernert, 823 F.3d 902, 913 (7th Cir. 2016). Alternatively, Plaintiffs could be placed in a smaller ICF (with less than eight beds) before necessarily being placed in a large ICF. This too is speculative.
Plaintiffs respond that "even if it is impossible to predict the exact date and time when [Hamilton] will experience an ICF admission, it is certain these conditions--significant unmet needs, limited access to services, and the anticipated loss of a primary caregiver- present a serious risk of institutionalization sufficient to provide standing." (Pis. Resp. at 34.) Besides these factors, Plaintiffs allege that the State's failure to provide residential and day services to individuals with disabilities in sufficient community settings is reasonably related to and predictably forces individuals with disabilities into inappropriate institutionalization. (Pis. Resp. at 30.) Thus, they allege the State's decision to provide segregated services without access to sufficient community-based services "reflects a present failure to 'administer service, programs and activities in the most integrated setting appropriate' in violation ofthe ADA." (Id. (citing 28 C.P.R.§ 35.130(d)).)
Defendants further argue that to state an "at-risk" claim under Olmstead, Plaintiffs must
24

point to some specific "state action or change in state policy" that will directly cause Hamilton to be institutionalized. (Defs.' Mot. at 23.) They argue that here, Hamilton could eventually be institutionalized for a number of other reasons, such as a change in his health or financial circumstances. The United States, as an interested party, filed a Statement of Interest in response to this argument, arguing that Defendants conflate the ripeness inquiry with the merits of Plaintiffs' claims and misconstrue the meaning of "state action." (Statement of Interest of the United States ("Statement of Interest") at I, ECF No. 41.) First, a plaintiff need not show that institutionalization is imminent or inevitable to have standing. (Id. at 7.) Other courts have found that plaintiffs had standing to bring claims under the ADA's integration mandate without facing immediate institutionalization. See, e.g., M.R. v. DreyfUs, 663 F.3d 1100 (9th Cir. 2011) ("An ADA plaintiff need not show that institutionalization is 'inevitable' or that she has 'no choice' but to submit to institutional care to state a violation of the integration mandate."); Fisher v. Oklahoma Health care Auth., 335 F.3d 1175, 1181 (lOth Cir. 2003) (finding state's action placed the plaintiffs at risk of eventual institutionalization, though not immediate harm); Guggenberger v. Minnesota, 198 F. Supp. 3d 973 (D. Minn. 2016) (finding that claims for the denial of waiver services based on state's mismanagement and administration were ripe for review).
Additionally, "a state's administration, operation, and funding of services, including decisions to deny services," can "constitute state action." (Statement of Interest at 9.) Nothing in the text of Title II of the ADA requires that a plaintiff allege a change to pre-existing home and community-based services to establish an at-risk claim. It merely requires a public entity to "administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 42 U.S.C. § 35.130(d). Thus, Plaintiffs allege that even if Hamilton's eventual institutionalization is contingent on future events, the personal
25

financial strain he faces in addition to the limited availability ofintegrated and cotmnwlity-based services makes such an outcome a predictable consequence.
Moreover, contrary to Defendants' assertion that "Mr. Hamilton may never be harmed by the public policies with which they disagree," Plaintiffs further allege that Hamilton is currently banned by the State's policies even though he is not institutionalized. Hamilton maintains that he currently faces segregation from his non-<lisabled peers by living at home and working in a segregated facility-based workshop. (Pis. Resp. at 35.) The Seventh Circuit in Steimel v. Werne11 considered whether a person who is capable of participating in the conunmtity but is nevertheless isolated in the home is inconsistent with the mandate that individuals be served "in the most integrated setting appropriate." Steimel, 823 F.3d at 910 (citing "unjustified isolation" as discrimination based on disability under Olmstead, 527 U.S. at 600). In compat·ing it to the segregation an individual would experience in an institution, the Seventh Circuit concluded that "we see no reason why the same analysis should not apply" to the home. !d. at 911.
In sum, Hamilton has sufficiently alleged that he is currently harmed and faces a serious risk of institutionalization as a result of the State's ongoing failure to provide adequate community-based waiver services. Thus, his claims are ripe for review.
D. St4nding ofthe Ability Center ofGreater Toledo Next, Defendants argue that the Ability Center ofGreater Toledo ("Ability Center") lacks associations] standing to bring this action on behalf of its constituent members. The Ability Center is a non-profit Ohio corporation operating as a "center for independent living" pursuant to 29 U.S.C. § 796 with the mission to improve the independence of individuals with disabilities, including those with intellectual and developmental disabilities. Defendants do not challenge the Ability Center's standing to bring suit on its own behalf as an organization.
26

An association has standing to bring suit on behalf of its members when (1) its members would otherwise have standing to sue in their own right; (2) the interests at stake are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires participation by individual members in the lawsuit. Hunt v. Washington State Apple Advertising Comm 'n, 432 U.S. 333, 343 (1977).
Defendants argue that the Ability Center cannot meet the first or third prongs of the Hunt test because its constituents are not members and because Olmstead requires the participation of individual plaintiffs themselves. They do not dispute the second element that the interests at stake are germane to the Ability Center's purpose ofadvocating for the rights ofdisabled people.
With respect to the first prong, when an association lacks traditional members, the association may nonetheless have standing where its constituents "possess all of the indicia of membership in an organization." Hunt, 432 U.S. at 344. In Hunt, the apple growers and dealers were not traditional members, but because they elected members to and served on the Commission they possessed sufficient indicia of membership to give associational standing on their behalf.Jd. at 344-45. Courts have found associational standing where the constituents are the "functional equivalent" of members. See Oregon Advocacy Center v. Mink, 322 F.3d 1101, 1112 (9th Cir. 2003); Doe v. Stincer, 175 F.3d 879, 886 (11th Cir. 1999) (finding associational standing because constituents, "[m]uch like members of a traditional association, ... possess the means to influence the priorities and activities" of the organization.)
Here, Defendants argue that constituents of the Ability Center are not traditional members and do not possess the indicia of membership. Unlike the apple growers in Hunt, who alone elected members to and alone could serve on the board, Defendants allege that the Ability Center has stated a much looser connection between the putative class members and the
27

organization's Board of Trustees. The majority of the Ability Center's Board of Trustees are people with disabilities in addition to four members who are individuals or parents ofindividuals with intellectual or developmental disabilities. (Pls. Resp. at 42.) Further, a majority of the Ability Center's staff are people with disabilities and many hold leadership positions. Defendants essentially allege that because not every single members of the Ability Center's Board or constituency is a putative member of the class that it cannot have standing.
Hunt need not be read so strictly. For instance, in Liberty Res., Inc. v. Philadelphia Hous. Auth., 528 F. Supp. 2d 553, 563 (E.D. Pa. 2007), the court held that ''representational standing does not require that every individual in an organization, nor every decision-maker in an association, suffers the precise, direct injury allegedly caused by the defendant." Id. (citing Warth v. Seldin, 422 U.S. 490, 511 (1975)). "On the contrary, an organization can achieve representational standing if 'its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit.., Id. Here, Plaintiffs have pled that the Ability Center's constituents "include individuals with intellectual and developmental disabilities currently institutionalized in large ICFs or at serious risk of institutionalization in these facilities." (Compl. ~ 70.) This, in addition to its representations regarding the constituent membership on its Board, satisfies the indicia of membership.
As to the third prong regarding individual participation, the Sixth Circuit has held that "[t]he individual participation of an organization's members is not normally necessary when an association seeks prospective or injunctive relief for its members." Sandusky Cty. Democratic Party v. Blackwell, 387 F.3d 565, 574 (6th Cir. 2004); see also Fednav, Ltd. v. Chester, 547 F.3d 607, 615 (6th Cir. 2008) (individual participation not required because organization seeks
28

declaratory judgment, and not individualized damages). Here, the Ability Center only seeks prospective and injunctive reliefin the form of a declaratory judgment and permanent injunction. (Compl. at 58-59.) Thus, the Ability Center has associational standing to bring suit on behalf of its constituents.
E. Enforceability and Standing Under the Social Security Act Finally, Defendants challenge Plaintiffs' standing to privately enforce their claim under 42 U.S.C. §1396n(c)(2)(B) & (C), the "Free Choice" provision of the Social Security Act that governs the issuance of Medicaid waivers to states. Plaintiffs bring their claim under 42 U.S.C. § 1983, which creates a cause of action against a person, who under color of state law, deprives "any citizen of the United States . . . of any rights, privileges, or immunities secured by the Constitution and laws." "[I]n order to seek redress through§ 1983, ... a plaintiffmust assert the violation of a federal right, not merely a violation of federal law." Blessing v. Freestone, 520 U.S. 329, 340 (1997). Plaintiffs allege that the State of Ohio violated their rights under § 1396n(c)(2) by failing to inform and provide them meaningful choices to feasible alternatives to institutional placement, including their eligibility for home and community-based services. Defendants argue that § 1396n cannot be privately enforced by Plaintiffs because its language does not clearly confer an individual right. Alternatively, Defendants argue that Plaintiffs lack standing because they are all aware of ICF alternatives by virtue of their placement on waiver waiting lists and therefore have not been harmed. A statute confers an individual federal right if three factors are met: (1) "Congress must have intended that the provision in question benefit the plaintiff;" (2) ''the plaintiff must demonstrate that the right assertedly protected by the statute is not so 'vague and amorphous' that its enforcement would strain judicial resources;" and (3) ''the provision giving rise to the
29

asserted right must be couched in mandatory, rather than precatory, terms." Blessing, 520 U.S. 329 at 340--41. The Supreme Court clarified this standard in Gonzaga v. Doe, 536 U.S. 273, 284 (2002). It held that an individual may privately enforce a federal law under § 1983 when Congress makes clear through the statutory language that it unambiguously confers an individual right. In order to do so, the statute "must be phrased in terms of the persons benefited" using "individually focused terminology." Gonzaga, 536 U.S. at 284, 287.
Before Gonzaga, the Sixth Circuit had held that§ 1396n(c)(2)(B) & (C) were enforceable through § 1983. See Wood v. Tompkins, 33 F.3d 600 (6th Cir. 1994). However, the Sixth Circuit has not revisited the issue after Gonzaga to determine if the statute contains sufficient individually-focused language under the new standard. Other courts have since disagreed as to whether§ 1396n is privately enforceable through § 1983. See e.g., Ball v. Rodgers, 492 F.3d 1094, 1116-17 (9th Cir. 2007) (finding sufficient rights-containing language under § 1396n(c)(2)(C)); Michelle P. ex rel. Deisenroth v. Holsinger, 356 F. Supp. 2d 763, 769 (E.D. Ky. 2005) (same); Steward v. Abbott, 189 F. Supp. 3d 620, 635-37 (W.D. Tex. 2016) (finding§§ 1396n(c)(2)(B) and (C) reflect a "congressional intent to create a right in those individuals to such evaluations and information"); Masterman v. Goodno, No. Civ.03-2939, 2004 WL 51271, at *10 (D. Minn. Jan. 8, 2004) (disagreeing that § 1396n is not privately enforceable simply because it speaks about the entity regulated rather than individuals benefit). But see MA.C. v. Betit, 284 F. Supp. 2d 1298, 1307 (D. Utah 2003) (holding that ''the freedom of choice provisions do not contain the unambiguous rights-creating language of Gonzaga); Gaines v. Hadi, No. 06-60129-civ-seitzmc, 2006 WL 6035742, at *23-24 (S.D. Fla. Jan. 30, 2006) (disagreeing with Woods v. Tomkins and finding no private right of action under § 1396n).
The Court is persuaded by those cases finding sufficient rights-creating language in the
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statutory provisions. Sections 1396n(c)(2)(B) and (C) provide that a waiver shall not be granted
unless the State "will provide ... for evaluation of the need" of services to individuals who "are
entitled to [institutional care]" who may be eligible for home or community~based services and
those individuals "are informed of the feasible alternatives [to institutional care], if available
under the waiver, at the choice of such individuals." Interpreting this language according to
Blessing as modified by Gonzaga, the Court finds that the statutory provision sufficiently
"phrased in terms of the persons benefited" and focused on the individual's right to receive
evaluation and information about feasible alternatives to institutional care. Gonzaga, 536 U.S. at
284. As another district court in the Sixth Circuit concluded with respect to§ 1396n(c)(2)(C):
[T]he assurances set forth in the statute are clearly intended to protect the health and welfare of individuals such as Plaintiffs. The individually focused terminology confers the sort of individual entitlement enforceable under § 1983. Further, the section imposes a mandatory duty on the participating state-a state must provide the enumerated assurance in order to obtain a home care waiver. Finally, the Court finds that the concept of a state providing assurances that it has informed eligible individuals of their options, and provided them with ICFIMR services (if the individuals so choose), is not so vague or ambiguous as to be unenforceable by the judiciary. Holsinger, 356 F. Supp. 2d at 769 (B.D. Ky. 2005). Also persuasive are cases in which the Sixth
Circuit has analyzed similarly-worded Medicaid provisions after Gonzaga. See Harris v.
Olszewski, 442 F.3d 456 (6th Cir. 2006) (finding 42 U.S.C. § 1396a(a)(23) confers an individual
right, as it requires a state ''must provide" "any individual eligible for medical assistance" such
assistance from any qualified agency or person); Westside Mothers v. Olszewski, 454 F.3d 532,
543-44 (6th Cir. 2006) (finding § 1396a(a)(43)(A), which requires a state Medicaid plan to
inform all persons eligible for Medicaid of the availability of early and period screening and
treatment services, to be enforceable under§ 1983).
Turning to standing, Defendants argue that even if§ 1396n(c)(2)(B) & (C) confer an
individual right to receive information about ICF alternatives, Plaintiffs have not sufficiently
31

alleged that they were not informed about such alternatives since each Plaintiff is currently on a waiting list to receive waiver services; and thus, they have not suffered an injury in fact to have standing. Defendants contend that the statute does not require states to provide information about feasible alternatives before an individual is admitted to an ICF, nor does it require it to offer a waiver as an alternative before placement in an ICF. (Def. Reply at 29.)
However, the relevant regulation provides that states will not be granted a waiver unless they provide "assurance that when a beneficiary is determined to be likely to require the level of care provided [by an ICF], the beneficiary ... will be (1) Informed of any feasible alternatives available under the waiver; and (2) Given the choice of either institutional or home and community-based services." 42 C.F.R. § 441.302(d) (emphasis added). Consequently, the Ninth Circuit in Ball v. Rodgers has interpreted § 1396n(c)(2)(C) to confer ''two explicitly identified rights-{a) the right to be informed of alternatives to traditional, long-term institutional care, and (b) the right to choose among those alternatives." Ball, 492 F.3d at 1107. Other courts have found an adequate showing of injury based on plaintiffs' right to assessment and information about community-based alternatives to institutional care. See Steward, 189 F. Supp. 3d at 630 (finding a sufficient showing of injury to preclude dismissal where plaintiffs seeking waivers were "detained in a years-long waitlist"); Rolland v. Cellucci, 52 F. Supp. 2d 231, 241 (D. Mass. 1999) (finding sufficient facts to survive motion to dismiss where plaintiffs alleges feasible alternatives and lack offreedom of choice by failing to inform plaintiffs about such choices).
Here, Plaintiffs allege that "Defendants Kasich, Martin, and McCarthy have failed to meaningfully inform individuals who are determined to be likely to require an ICF level of care of the feasible alternatives to institutional placement, including their eligibility for, and the availability of, home and community-based services which could prevent or avoid their
32

continued and unnecessary institutionalization in violation of 42 U.S.C. § 1396n(c)(2)(B)&(C)." (Compl. ~ 222.) Specifically, Plaintiff Ball alleges that her family was merely informed that she could put her name on a waiting list before they had to place her in an ICF, where she has remained for over twenty years. (!d. ~ 18.) Plaintiffs Butler and Mason have spent twenty and fourteen years respectively on waiting lists for waiver services and allege that they were not informed about or afforded meaningful choices regarding alternatives to continued ICF
placement. (Id. W 26, 35, 40) Plaintiffs Walters and Hamilton make similar allegations.
Collectively, Plaintiffs allege that they have been injured by their lack of a meaningful choice between institutional care and alternative services, and that their years-long waiting periods for waiver services have caused them to remain unnecessarily segregated.
Although Defendants argue that Plaintiffs' interpretation of the statute attempts to make waiver slots an entitlement, the Court finds that at this point, Plaintiffs have sufficiently alleged that they have been denied a meaningful choice of participation in feasible alternatives to institutional care. Accordingly, Defendants' motion to dismiss on this ground is denied.
VI. CONCLUSION For the reasons above, Defendant Miller's Motion (ECF No. 16) is DENIED, Defendant Kasich's Motion (ECF No. 28) is DENIED in part and GRANTED in part, and Defendants McCarthy's and Martin's Motion (ECF No. 27) is DENIED.
IT IS SO ORDERED.

DATED

ED~ SARGVS, JR. CIDEF UNITED STATES DISTRICT JUDGE

33

 
 Case: 2:16-cv-00282-EAS-EPD Doc #: 91 Filed: 03/27/17 Page: 1 of 13 PAGEID #: 2118

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

PHYLLIS BALL, by her General Guardian, PHYLLIS BURBA, et al.,
Plaintiffs,
v.

Case No. 2:16-cv-00282 CHIEF JUDGE EDMUND A. SARGUS, JR. Magistrate Judge Elizabeth P. Deavers

JOHN KASICH, Governor of Ohio, in his official capacity, et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court on Plaintiff's unopposed Motion for Class Certification

pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(2). (ECF No. 42.) For the Reasons

stated below, Plaintiffs' Motion is GRANTED.

I. BACKGROUND This proposed class action was filed on March 31, 2016 by Plaintiffs Phyllis Ball, Antonio Butler, Caryl Mason, Richard Walters, Ross Hamilton, and the Ability Center of Greater Toledo (collectively "Plaintiffs")1 on behalf of themselves and other similarly situated individuals with intellectual and developmental disabilities who are institutionalized or at serious risk of institutionalization in large Intennediate Care Facilities ("ICFs") with eight or more beds throughout Ohio. The action is brought against Defendants John Kasich (in his official capacity as Governor of Ohio), Kevin Miller (in his official capacity as Director of Opportunities for Ohioans with Disabilities), John McCarthy (in his official capacity as Director of the Ohio

1 Nathan Narowitz previously joined as plaintiff in the Complaint and Motion for Class Certification, but has since withdrawn as a named plaintiff in the case, reserving his right to recover as a general member ofthe putative class.

Case: 2:16-cv-00282-EAS-EPD Doc #: 91 Filed: 03/27/17 Page: 2 of 13 PAGEID #: 2119
Department of Medicaid), John Martin (in his official capacity as Director of the Ohio Department of Developmental Disabilities), and the Ohio Association of County Boards Serving People with Developmental Disabilities (collectively "Defendants"), and asserts three causes of action under Title II of the Americans with Disabilities Act ("ADA''), 42 U.S.C. § 12132 et seq., Section 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 794 et seq., and the Social Security Act, 42 U.S.C. § 1396n(c)(2)(B)&(C).
A more detailed description of the allegations in this case are contained in this Court's March 23, 2017 Opinion and Order denying Defendants' motions to dismiss and granting in part Defendant Kasich's motion to dismiss the ADA and Social Security Act claims against him in his official capacity. (Opinion & Order, ECF No. 90.) To summarize, Plaintiffs allege that Defendants' administration of Ohio's service system for people with intellectual and developmental disabilities have left thousands of Ohioans unnecessarily institutionalized or at serious risk of institutionalization in violation of federal law. Plaintiffs assert that federal law entitles them to receive services in the most integrated setting appropriate, but that Defendants have failed to provide sufficient integrated community-based services necessary to avoid their institutionalization in large ICFs. Plaintiffs seek declaratory and injunctive relief compelling Defendants to modify Ohio's service system for persons with intellectual and developmental disabilities by providing reasonable access to integrated community-based services.
Plaintiffs filed this Motion for Class Certification on August 22, 2016, which Defendants have not opposed. (Plaintiffs' Motion for Class Certification ("Pl. Mot."), ECF No. 42.)
II. STANDARD Certification of class actions is controlled by Federal Rule of Civil Procedure 23. The party seeking class certification bears the burden of proof. In reAm. Med. Sys., Inc., 75 F.3d
2

Case: 2:16-cv-00282-EAS-EPD Doc #: 91 Filed: 03/27/17 Page: 3 of 13 PAGEID #: 2120
1069, 1079 (6th Cir. 1996). Although Rule 23(a) requirements are procedural, not jurisdictional, in nature, a party must satisfy the requisite criteria before class certification can be granted. See D.D. v. Washington Cty., No. 2:10-CV-1097, 2011 WL 830761, at *1 (S.D. Ohio Mar. 3, 2011). In order for class certification to be granted, the Court must analyze any request to certify a class in light of the four factors outlined in Rule 23. See, e.g., Equal Opp. Comm. v. Whirlpool, 80 F.R.D. 10, 14 (N.D. Ind. 1978) ("The Rule 23 prerequisites are mandatory."). Put simply, parties cannot consent to Rule 23 certification. Washington Cty., 2011 WL 830761, at *1. Rather, the Court may certify the proposed class only if it concludes, based on the record before the Court, that the four factors stated in Rule 23 are satisfied. Rule 23(a) states:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. These four requirements are known as numerosity, commonality, typicality, and adequacy of representation. A district court is required to conduct a "rigorous analysis" into whether the prerequisites of Rule 23 are satisfied before certifying a class. General Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982). While a district court has broad discretion on whether to certify a class, that determination must be made within the confines of Rule 23. See Gulf Oil Co. v. Bernard, 452 U.S. 89, 100 (1981) (district court bound by Federal Rules). A class is not maintainable as a class action merely because it is designated as such in the pleadings. Am. Med. Sys., 75 F.3d at 1079. As the Court ofAppeals has stated: Mere repetition of the language of Rule 23(a) is not sufficient. There must be an adequate statement of the basic facts to indicate that each requirement of the rule is fulfilled. Maintainability may be determined by the court on the basis of the
3

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pleadings, if sufficient facts are set forth, but ordinarily the determination should be predicated on more information than the pleadings will provide. Weathers v. Peters Realty Corp., 499 F.2d 1197, 1200 (6th Cir. 1974) (citation omitted). Supreme Court and Sixth Circuit law, however, do not allow the Court to inquire into the merits at the class certification stage. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974) ("We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits ofa suit in order to determine whether it may be maintained as a class action. Indeed, such a procedure contravenes the Rule."). Accordingly, the Court's rigorous analysis must be limited to the substance and structure of Plaintiff's claims, rather than an inquiry into the merits. As the Sixth Circuit has stated, "[m]erits questions may be considered to the extent-but only to the extent-that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied." Rilws v. Procter & Gamble Co., 799 F.3d 497, 505 (6th Cir. 2015) (quoting Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 133 S. Ct. 1184, 1194-95 (2013)).
DI. DISCUSSION Plaintiffs seek to certify a class consisting of:
All Medicaid-eligible adults with intellectual and developmental disabilities residing in the state of Ohio who, on or after March 31, 2016, are institutionalized, or at serious risk of institutionalization, in an Intermediate Care Facility with eight or more beds, and who have not documented their opposition to receiving integrated, community-based services. (Pl. Mot. at 3-4.) According to Plaintiffs, individuals at serious risk of institutionalization in a large ICF include people with intellectual and developmental disabilities "who now, or in the future: (1) apply for or are referred for admission to an ICF; or (2) are placed on waiting lists for Medicaid home and community-based services and have an aging caregiver or intensive needs as defined by Ohio Admin. Code 5123:2-1-08(D)(IO)(c)." (!d. at 4.) Plaintiffs also seek the
4

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appointment of Disability Rights Ohio, Sidley Austin, LLP, Attorney Samuel Bagen&'tos, and the Center fur Public Representation as co-class cowtSel.
The Court will first discuss whether the four requirements of Rule 23(a)-nwnerosity,
commonality, typicality, and adequacy of representation-have been satisfied, and will then
discuss the requiren1ents of Rule 23(b)(2) and the appointment of class counsel. A. Requirements of Rule 23(a)
I. Numerosity Rule 23(a)(l) requires that the class be "so numerous that joinder of all members is
impracticable." Fed. R. Civ. P. 23(a)(l). There is no bright line numerical test by which the
district court can determine when the numerosity requirement is satisfied. Senter v. Gen. Motors
Corp., 532 F.2d 511, 523 n.24 (6th Cir. 1976) ("hnpracticability of joinder is not determined
according to a strict numerical test but upon the circumstances surrounding the case.") (citing Cash v. Swifton Land Corp., 434 F.2d 569, 571 (6th Cir. 1970)). W'hen class size reaches substantial proportions, the numerosity requirement is usually satisfied by the numbers alone.
Am. Med. Sys., 15 F.3d at 1079. Plaintiffs state that the proposed class consists of at least 2,500 persons who have
expressed a preference to receive integrated, community-based services and who currently reside in ICFs. (Pl. Mot. at 22-23.) Additionally, according to statements made by Defendants, at least 8,000 people who live in the community but rely on aging caregivers and 1,000 who are
e>:pected to lose the support of their primary caregiver within a twelve-month period are at
serious risk of institutionalization. (Governor's Office of Health Transformation, Enhance Comrmmity Developmentaf Disabilities Services at 6, Ex. 10 to Pl. Mot., ECF No. 42-10.) Given
5

Case: 2:16-cv-00282-EAS-EPD Doc #: 91 Filed: 03/27/17 Page: 6 of 13 PAGEID #: 2123
the size and fluid nature of the proposed classt the Court is satisfied that joinder of all members is impracticable and that the numerosity requirement is met.
2. Commonality Rule 23(a)(2) requires the existence of "questions of law or fact common to the class."
Fed. R. Civ. P. 23(a)(2). "Commonality requires the plaintiff to demonstrate that the class members have suffered the same injury." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338t 349 (2011). Howevert at the certification stage plaintiffs need not show that all class members have been injured in precisely the same way or were in fact injured at all. Rilws, 799 F.3d at 505 ("The Supreme Court in Dukes did not hold that named class plaintiffs must prove at the classcertification stage that all or most class members were in fact injured to meet this requirement.").
Instead, "the commonality requirement will be satisfied as long as the members of the class have allegedly been affected by a general policy of the Defendant and the general policy is the focus of the litigation." Bovee v. Coopers & Lybrand, 216 F.R.D. 596, 608 (S.D. Ohio 2003) (citing Putnam v. Davies, 169 F.R.D. 89, 93 (S.D. Ohio 1996)); Mayo v. Sears, Roebuck & Co.t 148 F.R.D. 576, 580 (S.D. Ohio 1993)). Although Rule 23(a)(2) speaks of "questions" in the plural, there need be only one question common to the class. Boveet 216 F.R.D. at 608 (citing Sprague v. Gen. Motors Corp.t 133 F.3d 388t 397 (6th Cir. 1998)). A common question must be one that is "capable of classwide resolution-which means detennination of its truth or falsity will resolve an issue that is central to the validity of each one ofthe claims in one stroke." Dukes, 564 U.S. at 350.
Plaintiffs assert that this case presents multiple common questions of fact and law, that if answered would resolve the legal claims of the class as a whole. Specificallyt common questions of fact include whether: Plaintiffs are denied services in the most integrated setting because
6

Case: 2:16-cv-00282-EAS-EPD Doc #: 91 Filed: 03/27/17 Page: 7 of 13 PAGEID #: 2124
Defendants unnecessarily fund a large number of ICFs; fail to provide sufficient access to integrate and community-based residential, employment, and day services; maintain a funding structure in a way that incentivizes institutionalization; and, fails to provide adequate and timely information regarding alternatives to institutional care to people in ICFs. (Pl. Mot. at 26-27.) Plaintiffs additionally assert that questions of law common to the class include whether these actions or inactions by Defendants amount to violations under the ADA, Section 504 of the Rehabilitation Act, or§ 1396n(c)(2)(B) & (C) of the Social Security Act.
These questions closely mirror those identified in other cases in which courts have found the commonality requirement satisfied. See e.g., Kenneth R. ex rel. Tri-County CAP, Inc./GS v. Hassan, 293 F.R.D. 254, 267 (D. N.H. 2013) ("[W]hether there is a systemic deficiency in the availability of community-based services, and whether that deficiency follows from the State's policies and practices, are questions central to plaintiffs' theory of the case."); Lane v. Kitzhaber, 283 F.R.D. 587, 598 (D. Or. 2012) (finding a common question of '~hether defendants have failed to plan, administer, operate and fund a system that provides employment services that allow persons with disabilities to work in the most integrated setting''); Steward v. Janek, 315 F.R.D. 472, 493 (W.D. Tex. 2016) (certifying a class of "All Medicaid-eligible persons over twenty-one years of age with intellectual or developmental disabilities or a related condition in Texas who currently or will in the future reside in nursing facilities, or who are being, will be, or should be screened for admission to nursing facilities ....").
Because all proposed class members are allegedly subjected or at risk of experiencing the same alleged unnecessary segregation, the Court concludes that there are questions of fact and law common to all members of the proposed class. These common issues identified by Plaintiffs may also be resolved on a classwide basis in a single stroke. As Plaintiffs maintain, "a single
7

Case: 2:16-cv-00282-EAS-EPD Doc #: 91 Filed: 03/27/17 Page: 8 of 13 PAGEID #: 2125
injunction which requires the expansion of integrated, community-based services" would ''redress Plaintiffs' injuries, and benefit the class as a whole." (!d. at 28- 29.) The commonality requirement is therefore satisfied.
3. Typicality Rule 23(a)(3) requires that the "claims or defenses of the representative parties [be]
typical of the claims or defenses of the class." Fed. R. Civ. P. 23(a)(3). A plaintiff's claim is typical "if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory.'' Am. Med. Sys., 75 F.3d at 1082 (citing 1 Newberg on Class Actions § 3-13, at 3-76). Typicality requires that the "representative's interests [are] aligned with those ofthe represented group, and in pursuing his own claims, the named plaintiff will also advance the interests of the class members." Id. Stated differently, as the Sixth Circuit has summarized, "as goes the claim of the named plaintiff, so go the claims of the class." Sprague, 133 F.3d at 399; Stout v. J.D. Byrider, 228 F.3d 709, 717 (6th Cir. 2000). The commonality and typicality requirements are closely related because they both help determine whether the claim of the named plaintiff and those of the class are so interrelated that the interests of the absent class members will be protected. !d.
Like the commonality requirement, the named plaintiff's claims do not have to be identical to the claims and defenses of the other members of the putative class, and need not always involve the same facts or law, provided there is a common element offact or law. Beattie v. CenturyTel, Inc., 511 F.3d 554 561 (6th Cir. 2007) (citing Senter, 532 F.2d at 525 n.31); Putnam, 169 F.R.D. at 94.
Plaintiff asserts that ''the Individual Plaintiffs and the Plaintiff class are aggrieved by the same actions and inactions of the Defendants." (Pl. Mot. at 37.) Typical to all plaintiffs include
8

Case: 2:16-cv-00282-EAS-EPD Doc #: 91 Filed: 03/27/17 Page: 9 of 13 PAGEID #: 2126
"Defendants' administration, operation, planning, and funding of the system for people with intellectual and developmental"; facing "the same limitations in accessing integrated residential, employment, and day services"; and, "a common interest in expanding community-based alternatives and avoiding unnecessary institutionalization." The legal claims plaintiffs assert also arise from the same legal theory. The typicality requirement is therefore met.
4. Adequacy ofRc:mresentation Rule 23(a)(4) permits certification if''the representative parties will fairly and adequately
protect the interests of the class." This requirement is essential to due process because a final judgment in a class action is binding on all class members. Am. Med. Sys., 75 F.3d at 1083 (citing Hansberry v. Lee, 311 U.S. 32 (1940)). "A class representative must be part of the class and possess the same interest and suffer the same injury as the class members." Beattie, 511 F.3d at 562 (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625-26 (1997)). The Sixth Circuit has articulated two criteria for determining the adequacy of representation: (a) "[t]he representative must have common interests with unnamed members ofthe class" and (b) "it must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel." Senter, 532 F.2d at 525.
(a) Common Interests ofNamed Representatives The first requirement overlaps with the commonality and typicality requirements and requires that the representatives and ''the class members have interests that are not antagonistic to one another." In re Dry Max Pampers Litig., 724 F.3d 713, 721 (6th Cir. 2013) (citing Vassalle v. Midland Funding LLC, 708 F.3d 747, 757 (6th Cir. 2013)); see also Shreve v. Franklin Cty., No. 2:10-cv-644, 2010 WL 5173162, at *15 (S.D. Ohio Dec. 14, 2010) ("A plaintiff may not be an adequate representative if that plaintiffis subject to unique defenses that place him or her in a position that is antagonistic to the interests of the class."). Thus, ''the linchpin of the adequacy
9

Case: 2:16-cv-00282-EAS-EPD Doc #: 91 Filed: 03/27/17 Page: 10 of 13 PAGEID #: 2127
requirement is the alignment of interests and incentives between the representative plaintiffs and the rest ofthe class." Dry Max, 724 F.3d at 721.
Plaintiff asserts that ''the individual Plaintiffs and the Plaintiff class have suffered a common injury and share a common interest-avoiding unnecessary institutionalization and having reasonable access to alternative, community-based services." (Pl. Mot. at 38.) By excluding from the class those who oppose receiving integrated care and instead prefer to reside in an ICF, those remaining in the class share a common interest with the Individual Plaintiffs in having the choice of community-based services as an alternative to institutionalization. Thus, the named representatives adequately represent the interests of the other class members.
(b) Vigorous Prosecution by Class Counsel To satisfy the second requirement of the adequacy of representation requirement, it must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel. Senter, 532 F.2d at 525 (citing Gonzales v. Cassidy, 474 F.2d 67, 73 (5th Cir. 1973)). Plaintiffs therefore must have sufficient financial and personal involvement to encourage it to prosecute the action vigorously, and adequate resources and legal representation to meet the demands of maintaining the action. Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1767 (1986)). Further, class counsel must be qualified, experienced, and generally able to conduct the litigation. Stout, 228 F.3d at 717. Here, Plaintiffs seek to appoint Disability Rights Ohio, Sidley Austin, LLP, the Center for Public Representation, and Samuel Bagenstos as co-class counsel. According to Plaintiffs, Disability Rights Ohio is the federally-designated protection and advocacy organization for the state of Ohio and brings decades of litigation experience on behalf of individuals with disabilities, both individually and in class action cases. (Pl. Mot. at 40.) Sidley Austin, LLP is a national law firm with broad expertise in complex litigation and trial skills and brings extensive
10

Case: 2:16-cv-00282-EAS-EPD Doc #: 91 Filed: 03/27/17 Page: 11 of 13 PAGEID #: 2128
litigation support capabilities to the case. (!d.) The Center for Public Representation also has forty years ofexperience in representing institutionalized persons with disabilities and has served as lead counsel in numerous class actions around the country. (/d.) Samuel Bagenstos is a civil rights litigator specializing in the area of disability law with more than twenty years of experience. (/d. at 46.) He previously served as the Deputy Assistant Attorney General for Civil Rights in the Civil Rights Division for the United States Department of Justice. Finally, Plaintiffs assert that the "Individual Plaintiffs' resources are adequate to represent the class competently" and "have no other professional commitments which are antagonistic to, or which would detract from, their efforts to seek a favorable decision for the class in this case." (/d.)
Based on these statements, the Court concludes that Plaintiffs are adequate class representatives and have vigorously prosecuted the interests of the class through qualified and experienced counsel and will likely continue to do so.
B. Requirements of Rule 23(b)(2) In addition to satisfying the prerequisites of Rule 23(a), Plaintiff must demonstrate that the action falls within one of the subcategories of Rule 23(b). Here, Plaintiffs seek class certification under Rule 23(b)(2), which states, in relevant part:
A class action may be maintained if Rule 23(a) is satisfied and if: . . . the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. Fed. R. Civ. P. 23(b)(2). " The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted-the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none ofthem." Dukes, 564 U.S. at 360. A class action under Rule 23(b)(2) is referred to as a "mandatory" class action because class members do not have an automatic right to notice or a right to opt out of the class. The defining
11

Case: 2:16-cv-00282-EAS-EPD Doc #: 91 Filed: 03/27/17 Page: 12 of 13 PAGEID #: 2129
characteristic of a mandatory class is "the homogeneity of the interests of the members of the class." Romherio v. Unump1'0vident Corp., 385 F. App'x 423, 432 (6th Cir. 2009) (quoting Reeb v. Ohio Dep't ofRehab. and Corr., 435 F.3d 639,649 (6th Cir. 2006)}.
To the extent Plaintiffs allege systemic civil rights violations and solely seek declaratory and injtmctive reliefdesigned to benefit the class as a whole, and do not seek monetary damages, the Court concludes that Rule 23(b)(2) certification is appropriate. Plaintiffs allege that "Defendants administer, operate, fund, and plan their system of services for people with intellectual and developmental disabilities in a discriminatory manner by failing to provide the
cotnmwtity-based services required by the Plaintiff class to avoid their unnecessary
institutionalization." (Pl. Mot. at 43.) To that end, "Defendants' decision to license, fund, and maintain an excessive number of segregated ICF placements, when coupled with their inadequate funding for and provision of home and community-based services," amollllts to a systemic policy and practice that harms the putative class as a whole. (!d.) These are allegations that apply generally to the proposed class.
C. Appointment ofClass Counsel Pursuant to Rule 23(g), Plaintiffs ask the Court to appoint Disability Rights Ohio, Sidley Austin, LLP, the Center for Public Representation, and Samuel Bagenstos as co-class counsel for Plaintiffs in this matter. As already stated in Section nr.A.4.b., supra, counsel for Plaintiffs have thus far shown competence and vigor in representing the interests of the proposed class and collectively have significant experience in complex litigation and class action litigation. Plaintiffs affirm that there is no conflict among counsel. Finally, the Court finds that counsel for Plaintiffs have effectively investigated potential claims in this action, and have demonstrated that they will commit the necessary resources to representing the class.
12

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IV. CONCLUSION
For the reasons stated above, the Court GRANTS Plaintiffs' Motion for Class
Certification. (ECF No. 42). The Court hereby certifies a class under Rule 23(b)(2), which
consists of the following:
All Medicaid-eligible adults with intellectual and developmental disabilities residing in the state of Ohio who, on or after March 31, 2016, are institutionalized, or at serious risk of institutionalization, in an Intermediate Care Facility with eight or more beds, and who have not documented their opposite to receiving integrate, community-based services.
The Court further designates Disability Rights Ohio, Sidley Austin, LLP~ Samuel Bagenstos, and
the Center for Public Representation as co-class counsel.
IT IS SO ORDERED.

DATE

ED~ARGUS, JR. . .
CHIEF UNITED STATES DISTRICT JUDGE

13

 
 Case: 2:16-cv-00282-EAS-EPD Doc #: 303 Filed: 03/30/18 Page: 1 of 25 PAGEID #: 5279

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OIDO
EASTERN DIVISION

PHYLLIS BALL, et al., Plaintiffs,
v.
JOHN KASICH, et al., Defendants.

Case No. 2:16-cv-282 CHIEF JUDGE EDMUND A. SARGUS, JR. Magistrate Judge Elizabeth Preston Deavers

OPINION AND ORDER Tiris matter is before the Court on Plaintiffs' Motion for Class Certification, which is, for the reasons that follow, GRANTED IN PART AND DENIED IN PART. (ECF No. 42.)
I. OVERVIEW Tiris case was filed by Disability Rights Ohio and the Center for Public Representation on behalf of Plaintiffs Phyllis Ball, Antonio Butler, Caryl Mason, Richard Walters, Ross Hamilton, Nathan Narowitz, and the Ability Center ofGreater Toledo ("Plaintiffs"). Plaintiffs contend that the State of Ohio unnecessarily institutionalizes people with intellectual and developmental disabilities in violation of federal law. Plaintiffs filed this action on behalf ofthemselves and other similarly situated individuals with intellectual and developmental disabilities (1) who currently reside in Intermediate Care Facilities ("ICFs") with eight or more beds ("Large ICFs") throughout Ohio, but who are willing and able to live in the community, and those (2) who are in community-based care, but who are at serious risk of placement in a Large ICF

Case: 2:16-cv-00282-EAS-EPD Doc #: 303 Filed: 03/30/18 Page: 2 of 25 PAGEID #: 5280
Plaintiffs seek declaratory and injunctive reliefunder Title II ofthe Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12132 et seq., Section 504 ofthe Rehabilitation Act of 1973,29 U.S.C. §§ 794 et seq., and the Social Security Act, 42 U.S.C. §§ 1396n(c)(2)(B) and (C), and are asking for "a single injunctive order requiring Defendants to remedy systemic deficiencies that deny class members their rights under federal law." (Pis.' Mot. for Class Cert. at 3, ECF No. 42.)
In particular, the Individual Plaintifts seek the opportunity to leave segregated ICFs, or to avoid unnecessary and unwanted admission to these facilities, through the provision of integrated residential, employment, and day services. A single injunction requiring the Defendants to develop and deliver these services in a manner sufficient to avoid class members' unnecessary institutionalization would resolve the alleged legal violations and create alternatives that benefit the class as a whole. /d. Plaintiffs name as Defendants in this lawsuit Ohio Governor John Kasich, Director of Opportunities for Ohioans with Disabilities Kevin Miller, Director of the Ohio Department of Medicaid John McCarthy, and Director ofthe Ohio Department of Developmental Disabilities John Martin ("Ohio Defendants"). After full briefing by all interested groups or parties (ECF No. 68, 73, 79; 130, 131, 163), the Court pennitted intervention by the Ohio Association of County Boards ofDevelopmental Disabilities ("DD Boards") and by a group ofguardians of individuals with developmental and intellectual disabilities who currently reside in Large ICFs in Ohio ("Guardians") (ECF No. 261). Early in the life of this action, Plaintiffs filed their Motion for Class Certification (ECF No. 42), which this Comt granted as unopposed (ECF No. 91). The Ohio Defendants moved for expedited reconsideration ofthat decision (ECF No. 92), which this Comt granted (ECF No. 98).
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The parties then engaged in mediation, which was ultimately unsuccessful in settling the entire case, but focused various issues. TI1e parties also engaged in significant discovery.
The Court set a briefing schedule on Plaintiffs' Motionfor Class CertificaJion, and Memoranda in Oppo:sition were filed by the Ohio Defendants (ECF No. 273), the DD Boards (ECF No. 275), and the Guardians (ECF No. 278). Based on the mediation, the additional parties added to the case, and the discovery obtained, Plaintiffs modified their definition of the requested class in their Reply in Suppon oftheir Motion for Class Certification. (ECF No. 283.} With the Court's permission (ECF No. 288), the ARC of the United States, the ARC ofOhio, and the Judge David L. Bazelon Center for Mental Health Law("ARC") filed a briefas amicus curiae in support ofPlaint{ffs' Motion for Class Certification (ECF No. 289).
The Ohio Defendants, the DD Boards, and the Guardians all filed Supplememal Memoranda in Opposition to Plaintiffs' Motionfor Class Ce11ification to address the modified class definition proposed in Plaintiffo' Reply. (ECF Nos. 291, 293, 296, respectively.) With the Court's permission (ECF No. 261), the Voice of the Retarded ("VOR") filed a briefas amicus curiae in opposition to Plaintiff.r' Motion for Class Cerlification (ECF No. 294).
Plaintiffs then filed their Final Reply in Support or Their Motion for· Class Cer·tificat:Wn. (ECF No. 300.)
H. PARTIES' POSITIONS A. Plaintiffs
Plaintiffs contend that the Ohio Defendants discriminate against them and a group of similarly situated individuals in violation of the integl'ation regulations of the ADA and the Rehabilitation Act. In Olmstead v. L.C. ex rei. Zimring, 527 U.S. 581 (1999), the United States
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Supreme Court addressed what actions constitute discrimination in violation ofthe integration
regulations. The Ol-mstead Court framed the issue as follows:
In the [ADA], Congress described the isolation and segregation of individuals with disabilities as a serious and pervasive form of discrimination. 42 U.S.C. §§ 12101(a)(2), (5)). Title II of the ADA, which proscribes discrimination in the provision of public services, specifies, inter alia, that no qualified individual with a disability shall, "by reason of such disability," be excluded from participation in, or be denied the benefits of, a public entity's services, programs, or activities. § 12132. Congress instructed the Attorney General to issue regulations implementing Title IT's discrimination proscription. See § 12134(a). One such regulation, known as the "integration regulation," requires a ''public entity [to] administer ... programs ... in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 CFR § 35.130(d). A further prescription, here called the ''reasonable-modifications regulation," requires public entities to "make reasonable modifications" to avoid "discrimination on the basis of disability," but does not require measures that would "fundamentally alter" the nature ofthe entity's programs. § 35.130(b)(7).
/d. at 581, syllabus.
The Olmstead Court held that, under Title II of the ADA, States are required to provide
community-based treatment services for persons with disabilities when
(1) the State's treatment professionals have determined that community placement is appropriate,
(2) the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and
(3) "the placement can be reasonably accommodated, taking into account the resources available to the State and the needs ofothers with mental disabilities."
See id. at 607.
Several Plaintiffs allege that they reside in Large ICFs, are appropriately qualified to
receive community-based treatment, and "seek the opportunity to leave segregated ICFs." (Pis.'
Mot. for Class Cert. at 3, ECF No. 42.) One Plaintiff, whose aging parents care for him in their
home, alleges that he is at serious risk ofICF placement when his parents can no longer care for
him. Plaintiffs provide a large amount of evidence, which, they contend, shows that "Ohio's
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service system for people with intellectual and developmental disabilities leaves thousands of
Ohioans who prefer to live in the community unnecessarily institutionalized in Large ICFs, or at
serious risk ofunnecessary institutionalization in these facilities, in violation offederal law."
(Pis.' Reply at 1, ECF No. 283.)
Plaintiffs contend that, as a result of Defendants' administrative, planning, policy, and funding decisions, Ohio has failed to provide the home and community-based services necessary to avoid class members' unnecessary segregation. The State has not paid for or implemented a sufficient number ofwaiverse] within its home and community-based service system to meet class members' demonstrated need. It has employed a funding and rate structure that incentivizes unnecessary institutionalization. It has adopted counseling processes that do not provide a real choice between institutionalization and home and community-based services. Defendants continue to license, maintain, and fund a system of large, segregated ICFs providing restrictive facility-based residential, employment, and day services. The size of Ohio's ICF system makes it a national outlier. These discrete actions and inactions by the State harm a large group of people with intellectual and developmental disabilities and subject them to unnecessary segregation.
!d. Plaintiffs conclude that "hundreds, if not thousands, ofpeople with intellectual and
developmental disabilities in Ohio remain segregated in Large ICFs, even though they qualify for
community-based services and have chosen or expressed interest in learning more about such
alternatives to institutional care." !d. at 5. Plaintiffs offer, inter alia, the following evidence to
support their position:
Thousands of adults live in large ICFs across Ohio. In total, Defendants' own figures show that there are 6,169 public and private ICF beds, and 5,901 residents of these facilities, across Ohio. Doc. 273 at 14, 17; see also Doc. 42 at 11. Although Ohio has gradually reduced the size of its state-operated ICFs
1 Medicaid-eligible adults are individuals with intellectual and developmental disabilities who have been determined eligible for ICF services. Once these individuals are determined to be eligible for ICF services, they can then seek to "waive" from an ICF placement into a "community" placement; hence the phrase, "waiver services." Waiver recipients are, by definition, waiving from their ICF entitlement. When waiver is granted, these individuals move into a more independent living arrangement, with Medicaid and DD Board funds used to pay the associated costs.
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("developmental centers"), Detendants continue to license, fund, and sustain a substantial network of private ICF beds. For at least twenty years, the number of individuals in private ICFs has remained relatively stagnant: The total number in SFY [State Fiscal Year] 1995 was 5,788; by SFY 2015, the number had actually increased to 5,877. Email from Clayton Weidner, Ohio Dep't of Developmental Disabilities, to Joshua Anderson, Ohio Dep't of Developmental Disabilities at 1-2 (July 23, 2014), attached as Exhibit 1.
/d.
B. ARC
ARC, which filed an amicus brief in support ofPlaintiffs' Motion for Class Certification,
explains that "[t]he need to maximize the availability ofthese community-based services for the
benefit ofpeople with [intellectual and developmental disabilities] strongly counsels in favor of
granting Plaintiffs' Motionfor Class Certification." (ARC Br. in Support ofClass Cert. at 5,
ECF No. 289.) ARC clarifies its position:
While the Court need not explore the merits in depth at this stage of the case, it is important in connection with the motion for class certification that the Court fully understand the relief Plaintiffs seek on behalf of Ohioans with disabilities who are currently unnecessarily institutionalized or at risk of such institutionalization. The research supporting community-based services and supports for people with disabilities as well as evidence from other states that have made this transition successfully clearly demonstrates that people with significant disabilities who require regular, intensive supports greatly benefit from living in community settings.
Experience shows that states can effectively shift their focus and funding priorities from institutional to community-based services without causing undue disruption to the residents who transition from institutions. Indeed, the lesson from those experiences is that residents and families are more satisfied with integrated community alternatives -even families that had initially opposed the changes. As a recent report from the American Association on Intellectual and Developmental Disabilities (AAIDD) and the Association of University Centers on Disability (AUCD) noted:
Over the past half-century we have learned that large institutions do not promote positive outcomes for people with [intellectual and developmental disabilities] and limit community interaction and involvement for some of our most vulnerable citizens. These
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settings have negative outcomes tor their health, well-being, quality oflife, independence, and overall happiness. As a society we have moved from providing residential supports for people with intellectual and other developmental disabilities in the large, segregated, isolated institutions of the first half of the 20th century ... to smaller group homes, shared apartments, and individuallyowned or rented houses or apartments.
Community Living and Participation for People with Intellectual and Developmental Disabilities: What the Research Tells Us (July 24, 2015) (hereafter AAIDDIAUCD Report), at 2, available at http://www.aucd.org/docs/publications/20 15_ 0723_ aucd_ aaidd_ c o m m u n i t y_livin g3 .pdf.
/d. at4-5.
C. Defendants
The Ohio Defendants and the DD Boards agree that "community-based services are a
good thing," referring to this as "common ground" with Plaintiffs and ARC. (Ohio Defs.• Supp.
Mem. in Opp. at 6, ECF No. 291.) The Ohio Defendants, however, contend that the statistical
evidence does not support Plaintiffs' position that Ohio has failed to provide an ever increasing
number ofcommunity-based services to individuals with intellectual and developmental
disabilities. Rather, the Ohio Defendants provide statistics they contend show the increase in
community care and decrease in ICF services as follows:
Plaintiffs overstate the current role ICFs play in Ohio's system. Describing ICF numbers as "relatively stagnant," Pis.' Supp. 5, is a half-truth at best. By looking solely at Ohio's raw ICF numbers, Plaintiffs ignore the expansion of Ohio's system since Olmstead. In 1999, when Olmstead was decided, Ohio had less than 14,000 people with developmental disabilities receiving Medicaid funding. See Weidner Aff. Exs. A-B, Doc. 273-4. And 59% of those people were living in ICFs. ld. By 2016, the service population had more than tripled, with over 42,000 Ohioans receiving Medicaid funding. See id. But waiver participants made up the strong majority: 85%. /d. And this trend projects forward. Over the past three years, Ohio has averaged 205 new waiver participants to only 32 new ICF participants each month. McGonigle Aff. ~ 3-4, Doc. 273-9. Thus, given the overall growth of Ohio's service population, any "stagnation" in raw ICF numbers, is, in reality, a dramatic proportional decrease.
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!d. at 7 (noting that "even looking only at raw figures, the number ofpeople in Ohio ICFs has
gone down since Olmstead'' because ofthe interplay between private and public ICFs).
Further, the Ohio Defendants explain that "Ohio has encouraged ICF downsizing,"
asserting that:
Ohio has provided rate incentives to lCFs that have committed to either (1) converting ICF beds to waivers or (2) transitioning people from ICFs with 16 or more beds to smaller ICFs. Ohio Resp. 13-14; Ohio Rev. Code§ 5124.67(A)(l). These efforts have led to many ICF beds being voluntarily converted or downsized. So far, over 450 ICF beds have been converted to waivers and over 260 beds have shifted to smaller ICFs. Horvath Supp. Aff. ~ 17 (attached Ex. 1).
Id. at 7-8.
Finally, the Ohio Defendants contend that it is not "accurate to imply, as Plaintiffs do,
that ICFs are an inherently bad thing." !d. at 8. They continue:
Many ICFs make extensive efforts to integrate their residents into the community, while also caring for their needs. See generally Lee Aff., Doc. 27325; Slight Aff., Doc. 273-26; Gall Aff., Doc. 273-27. For these and other reasons, thousands prefer ICFs for their, or their loved ones', care. See Ohio Resp. 22, 27-29. And while Plaintiffs feel that Ohio's ICF-reduction efforts have not gone far enough, others feel they have gone too far. See Guardians' Ex. 5, Doc. 278-5.
Ohio's difficult task is to balance competing preferences in an area where people understandably have passionate views. Ohio seeks to serve a wide variety of interests. The goal is not to "phase out" ICFs, but to administer services with an "even hand." See Olmstead, 527 U.S. at 604-05.
!d.
D. The Guardians
The Guardians take the position that Plaintiffs seek to push a social policy of requiring all
individuals with intellectual and developmental disabilities into community-based treatment-
whether they want it or not. (Guardians' Supp. Mem. in Opp. at 2, ECF No. 296) (stating that "it
is social policy masquerading as a lawsuit"); (see also Guardians' Mot. to Intervene at 10, 14,
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Case: 2:16-cv-00282-EAS-EPD Doc #: 303 Filed: 03/30/18 Page: 9 of 25 PAGEID #: 5287
ECF No. 107) (explaining that while Plaintiffs frame the community based services as
"integrated," these community based services work to segregate the Guardians' charges from
their peers, their caregivers, their families, and their homes (the ICF) at which many have lived
all or most of their lives). The Guardians note that, as the Ohio Defendants assert, "Ohio has
encouraged ICF downsizing." (Guardians' Mem. in Opp. at 5, ECF No. 278.) The Guardians
conclude:
The irony is that Ohio has actually done such a good job of encouraging ICF downsizing, that what is threatened today in Ohio - and may require class protection- is not the waiver choice, but instead the ICF choice.
!d.
The Guardians expound on their conclusion:
If once upon a time [developmentally disabled] individuals were unnecessarily forced into "institutions," this case is necessary because Plaintiffs - with the state's and county boards' help- now may be unnecessarily forcing individuals from institutions. This is exactly what Justice Kennedy cautioned against in Olmstead:
"It would be unreasonable, it would be a tragic event, then, were the Americans with Disabilities Act of 1990 (ADA) to be interpreted so that States had some incentive, for fear of litigation, to drive those in need of medical care and treatment out of appropriate care and into settings with too little assistance and supervision." 527 U.S. at 610.
Id. at 4. The Guardians further posit:
The irony is that this case is necessary, but not because - as Plaintiffs allege - the state is forcing people into "segregated" "institutions." It is necessary, but not because - as Plaintiffs allege - the state fails to provide waiver placements. In fact, all agree, that in less than 20 years, the state's waiver population has increased 556% while its ICF population has decreased 22%. See Dkt. 273-4.
In 1999, 59% of Ohioans receiving services received them in ICFs, while 41% received waiver services. ld. Fast forward to today and 85% receive waiver services while only 15% -like Guardians' loved ones- receive ICF services. Id. That is almost a 6:1 ratio in favor of waiver services, not "institutional" services,
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meaning the system is already overwhelmingly "balanced" toward community settings. The irony is the state - and county boards - have now been doing for decades exactly what Plaintiffs demand in this lawsuit: to shift more care and dollars to ''waiver" services in the "community."
Id. at 3, 4.
E. VOR
VOR, who filed an amicus briefin support of the opposition memoranda of Defendants
and the Guardians, contend that Plaintiffs' requests cannot help but have a negative impact on
disabled Ohioans. VOR offers the following:
To be clear, VOR believes that Plaintiffs' representatives are wellintentioned and motivated by their sincere belief about what is the most appropriate care for the class members. Neither the ADA nor the Rehabilitation Act, however, gives them the right to impose those beliefs on others, no matter how well-meaning they may be. VOR agrees with both Plaintiffs and Defendant Martin that "[t]he more choices we take away from people[,] the more we dehumanize them." (Pis.' Moving Br. at 6) (citation omitted). That said, the way to honor that belief is to actually allow options and individualized determination, not to substitute one forced choice for another.
(VOR' s Amicus Briefat 2, ECF No. 294.)
III. LAW
A. Standard
A district court has broad discretion to decide whether to certify a class. In reAm. Med.
Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996). When determining whether to certify a class, the
Court "must begin [its] analysis with a recognition that the 'class action is 'an exception to the
usual rule that litigation is conducted by and on behalfofthe individual named parties only."' In
re Whirlpool Corp. Front-Loading Washer Products Liab. Litig., 722 F.3d 838, 850 (6th Cir.
2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 ,388 (2011)).
To obtain class certification, the plaintiffs must show that "(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of
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law or fact common to the class; (3) the claims or detenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a). These four requirements-numerosity, commonality, typicality, and adequate representation-serve to limit class claims to those that are fairly encompassed within the claims of the named plaintiffs because class representatives must share the same interests and injury as the class members. Dukes, 131 S.Ct. at 2550.
!d.
In addition to fulfilling the four prerequisites ofRule 23(a), the proposed class must also
meet at least one ofthe three requirements listed in Rule 23(b). Dukes, 564 U.S. at 345; Young v.
Nationwide Mut. Ins. Co., 693 F.3d 532, 537 (6th Cir. 2012). In re Whirlpool Corp., 722 F.3d at
850-55. Federal Rule of Civil Procedure 23(b) authorizes three types of class action suits. See
Fed. R. Civ. P. 23(b)(I), (2), (3). Here, Plaintiffs request certification under Rule 23(b)(2),
which provides for declaratory and injunctive relief
B. Consideration of the Merits at the Class Certification Stage
A main argument Plaintiffs make throughout their class certification briefing is that
Defendants inappropriately engage in merits inquiries at the certification stage. In this regard,
the Sixth Circuit explains:
Class certification is appropriate if the court finds, after conducting a "rigorous analysis," that the requirements of Rule 23 have been met. Dukes, [564 U.S. at 351]; Young, 693 F.3d at 537; Daffin v. Ford Motor Co., 458 F.3d 549, 552 (6th Cir. 2006). Ordinarily, this means that the class determination should be predicated on evidence presented by the parties concerning the maintainability of the class action. In reAm. Med. Sys., Inc., 75 F.3d at 1079. On occasion "it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question," Gen. Tele. Co. ofSouthwest v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982), and "rigorous analysis" may involve some overlap between the proof necessary for class certification and the proof required to establish the merits of the plaintiffs' underlying claims. Dukes, [564 U.S. at 351]. There is nothing unusual about ''touching aspects of the merits in order to resolve preliminary matters ... [because doing so is] a familiar feature of
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Case: 2:16-cv-00282-EAS-EPD Doc #: 303 Filed: 03/30/18 Page: 12 of 25 PAGEID #: 5290
litigation." Id. at 351-52. But permissible inquiry into the merits of the plaintiffs' claims at the class certification stage is limited:
Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage. Merits questions may be considered to the extent-but only to the extent-that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.
Amgen Inc. v. Conn. Retirement Plans & Trust Funds, 568 U.S. 455, 466, 133 S.Ct. 1184, 185 L.Ed.2d 308 (2013) (citing Dukes, 131 S.Ct. at2552 n.6 (quoting Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140,40 L.Ed.2d 732 (1974))).
In re Whirlpool Corp., 722 F.3d at 851.
The In re Whirlpool court continued, stating that "[t]he Supreme Court's recent opinions
in Amgen and Dukes now clarify that some inquiry into the merits may be necessary to decide if
the Ru1e 23 prerequisites are met." Id. (citingAmgen, 568 U.S. at 464; Dukes, 564 U.S. at 349-
350).
Amgen, however, admonishes district courts to consider at the class certification stage only those matters relevant to deciding if the prerequisites of Rule 23 are satisfied. See Amgen, [568 U.S. at 460]. In other words, district courts may not ''turn the class certification proceedings into a dress rehearsal for the trial on the merits." Messner v. Northshore Univ. HealthSys., 669 F.3d 802, 811 (7th Cir. 2012).
Id. at 851-52.
The Court herein has considered only those matters relevant to deciding ifthe
prerequisites of Rule 23 are satisfied.
N. ANALYSIS
Plaintiffs move to certify an injunctive and declaratory relief class defined as follows:
All Medicaid-eligible adu1ts with intellectual and developmental disabilities residing in the state of Ohio who, on or after March 31, 2016, are qualified for home and community-based services, but (a) are institutionalized in an Intermediate Care Facility with eight or more beds, and, after receiving options
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counseling, express that they are interested in, or may be interested in, integrated community-based services; or (b) are at serious risk of institutionalization in an Intermediate Care Facility with eight or more beds and have, by placing themselves on a waiting list for community·based services, expressed an interest in receiving integrated services while continuing to live in the community.
(Pl. Reply at 2, ECF No. 283.) Plaintiffs explain:
Class members at serious risk of institutionalization in large ICFs include people with intellectual and developmental disabilities who are qualified for home and community-based services and who now, or in the future: (1) apply for or are referred for admission to an ICF; (2) are on waiting lists for Medicaid home and community-based services and have either an aging caregiver, intensive needs, or an emergency, as defmed by Ohio's current or future waiting list rule, or (3) have another immediate need which creates a substantial risk of harm, as determined by Ohio's current or future waiting list rule.
Id. at2-3.
A. Rule 23(b)(2)- Injunctive and Declaratory Relief Classes
In Rule 23(b)(2) classes, the movant must show ''that the party opposing the class has
affected the class in a way generally applicable to the class as a whole so that final injunctive or
declaratory reliefwith respect to the entire class is appropriate." Reeb v. Ohio Dept. ofRehab.
and Correction, 435 F.3d 639, 645--46 (6th Cir. 2006) (citing Fed. R. Civ. P. 23(b)(2)). Further,
the subdivision "requirements are designed to permit only classes with homogenous interests"
because it provides for mandatory, non-opt-out classes. Coleman v. Gen. Motors Acceptance
Corp., 296 F.3d 443, 447 (6th Cir. 2002). The Sixth Circuit explains:
Rule 23(b) can be divided into two general categories of class actions based on the procedural requirements that they entail. Rule 23(b)(1) and (2) are
referred to as "mandatory" classes due to the fact that they do not require that a
court provide individual members of the class with notice and the opportunity to "opt out" of the class action. These procedural protections are considered unnecessary for a Rule 23(b)(2) class because its requirements are designed to permit only classes with homogenous interests. See Holmes v. Cont'l Can Co., 706 F.2d 1144, 1155-56 (11th Cir.1983) ("The relief provisions of the rule reflect the need for homogeneity in the rights and interests of the class .. . .") (internal quotation marks omitted); Wetzel v. Liberty Mut. Insurance Co., 508 F.2d 239,
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256 (3d Cir.1975) (1975) ("The very nature of a (b)(2) class is that it is homogeneous without any conflicting interests between the members of the class.").
ld. at 447-48.
In their Motion for Class Certification, Plaintiffs highlight that Rule 23(b)(2) has long
been recognized as "an appropriate and important vehicle for civil rights actions." (Pis.' Mot. for
Class Cert. at 41) (citing Dukes, 564 U.S. at 361). Plaintiffs argue that
Rule 23(b)(2) is satisfied here because Plaintiffs allege systemic civil rights violations (discriminatory segregation) and seek declaratory and injunctive relief (the provision of integrated, community-based alternatives) designed to benefit the class as a whole. The modifications that Plaintiffs seek to the State's service system can be achieved through a single injunction. [Dukes], 564 U.S. at 365. Class injuries can be redressed by the expansion of community-based services as feasible alternatives to institutionalization.
Id. at 41. Plaintiffs explain:
Defendants administer, operate, fund, and plan their system of services for people with intellectual and developmental disabilities in a discriminatory manner by failing to provide the community-based services required by the Plaintiff class to avoid their unnecessary institutionalization. Class members' experience of discriminatory segregation is a product of these structural deficiencies in Defendants' service system. Defendants' decision to license, fund, and maintain an excessive number of segregated ICF placements, when coupled with their inadequate funding for and provision of home and community-based services, results in a continuing pattern of unnecessary and avoidable ICF admissions. This systemic policy and practice harms the Plaintiff class by depriving them of integrated, community-based service alternatives and causing their discriminatory segregation. As a result, Defendants are acting or refusing to act in a manner that is generally applicable to the class as a whole.
Id. at 43.
In sum, the systemic policies and practices about which Plaintiffs complain are Ohio's
licensing, funding, and maintenance of an excessive number of ICFs and inadequate funding of
home and community-based services required by the Plaintiff class to prevent ''their
discriminatory segregation." Plaintiffs maintain that Ohio ''provid[es] fewer community service
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slots than are necessary to meet the demonstrated need." (Pls.' Reply at 37, ECF No. 283.)
Plaintiffs assert that these class injuries can be addressed by declaratory and injunctive reliefthat
would require the Ohio Defendants to expand community-based services.
The Ohio Defendants respond that Plaintiffs cannot meet their burden to show an
appropriate 23(b)(2) class because their proposed class is not cohesive with homogenous
interests. Specifically, they argue:
A Rule 23(bX2) class "share[s] the most traditional justification[] for class treatment" in that ''the relief sought must perforce affect the entire class at once[.]" Dukes, 564 U.S. at 361-62. Thus, a Rule 23(bX2) class envisions a "single injunction." Id. at 360. The "defining characteristic" of such a class is "'the homogeneity of the interests of the members of the class.'" Romberio[ v. UNUMProvident Corp., 385 F. App'x 423, 432 (6th Cir. 2009)] (quoting Reeb[, 435 F.3d at 649).] The class "by its very nature" must have few if any "conflicting interests among its members.'' Allison v. Citgo Petroleum Corp., 151 F.3d 402, 413 (5th Cir. 1998).
!d. at 32, 33 ("If a court is going to give the same answer for everyone, it needs to be confident
everyone wants the same thing.").
The Ohio Defendants posit that Plaintiffs' modified class definition did not remedy its
previous lack of cohesiveness and homogeneity ofinterests, specifying that the definition implicates three groups2 of individuals with differing interests: (1) individuals who reside in a
Large ICF, and after receiving options counseling, express that they are interested in integrated
community-based services, (2) individuals who reside in a Large ICF, and after receiving options
counseling, express that they may be interested in integrated community-based services, and (3)
2 The Ohio Defendants add "residents ofeight-bed ICFs" as a fourth category. (Ohio Deft.' Supp. Opp. at 28, ECF No. 291.) However, the Ohio Defendants admit that they are "uncertain whether, and to what extent, these people are in or out of this proposed class" because, while Plaintiffs "repeatedly suggests they seek to represent such people" the definition of the class requires an ICF resident to have '"receiv[ed] options counseling' and then expressed at least some interest in waivers." (Id. at 32.) The Court does not interpret Plaintiffs' request to encompass all residents of Large ICFs. Thus, the Court will not address the Ohio Defendants' arguments related to this category.
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individuals who are at serious risk ofinstitutionalization by placing themselves on a waiting list
for community-based services, expressed an interest in receiving integrated services while
continuing to live in the community. (Ohio Defs.' Supp. Opp at 28, ECF No. 291.)
In Plaintiffs' Final Reply, they assert that the Sixth Circuit does not require every
member "ofthe class be identically situated or that all must have a claim for relief," stating:
Under the various headings of cohesiveness, commonality, typicality, adequacy of representation, and the propriety of the class definition, Defendants make essentially the same argument. They contend that the members of the proposed class are not identically situated to one another-and may not all have a claim for relief. But the Sixth Circuit has specifically rejected any requirement that the members of the class be identically situated or that all must have a claim for relief. "'All of the class members need not be aggrieved by . . . [the] defendant's conduct in order for some of them to seek relief under Rule 23(b)(2).., Gooch v. Life lnv'rs Ins. Co. of Am., 672 F.3d 402, 428 (6th Cir. 2012) (quoting 7A Charles A. Wright, et al., Federal Practice & Procedure § 1775). Rather, "'[w]hat matters to class certification ... [is] the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation."' Id. at 427 (quoting [Dukes], 564 U.S. at 350) (alterations in Gooch). See also, Rikos v. Procter & Gamble Co., 799 F.3d 497, 505 (6th Cir. 2015) ("The Supreme Court in Dukes did not hold that named class plaintiffs must prove at the class-certification stage that all or most class members were in fact injured to meet [the commonality] requirement.").
Rather, the Sixth Circuit has held that the relevant question for class certification is whether the plaintiffs challenge "a pattern or practice that is generally applicable to the class as a whole"- <me that can be enjoined at once for the entire class. Gooch, 672 F.3d at 428 (internal quotation marks omitted). Each ofthe systemic statewide practices that we challenge can be enjoined for the class as a whole. For example, if this Court orders the State to increase the number of community-based services slots it funds, to change its financing structure to eliminate the incentive to unnecessarily institutionalize, or to provide a certain set of diversionary and counseling services at an earlier time than is the present practice, that order will apply to the entire class. Even if not all of the class members can ultimately show that the challenged practices violated their rightsthe question on the merits-these statewide practices can be challenged in a class proceeding. See, id. (class certification appropriate "[e]ven if some class members have not been injured by the challenged practice") (internal quotation marks and citation omitted).
Thus, contrary to Defendants' suggestion (Doc. 291 at 46), this case is in exactly the same position as was Gooch. Here, as in Gooch, we seek an order
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that would resolve key issues classwide: there, an order directing a particular interpretation of an insurance contract that applied to the plaintiff class; here, an order barring or requiring specific statewide policies that apply to the plaintiff class. Even if, as Defendants argue, some members of the proposed class here will not be able to prove that they were injured by the statewide policies we target, the same was true in Gooch. See, Doc. 291 at 46 (acknowledging that "[n]ot all class members were injured by the provision at stake"). (Pis.' Final Reply at 7-9, ECF No. 300.) In short, Plaintiffs rely on Gooch for the proposition that any policy that will have an impact on the members ofthe proposed class is adequate to show cohesiveness and homogeneity ofinterests sufficient to support the requirements of Rule 23(b)(2), even when some members of the proposed class ''will not be able to prove that they were injured by the statewide policies [Plaintiffs] target." However, the uniform potential harm to which the class was subject in Gooch renders the case inapposite. By way of explanation, in Gooch, the defendant insurer reduced benefits available under a supplemental cancer-only insurance policy with its May 2006 policy clarification, which interpreted the phrase "actual damages" in the insurance contract. All members ofthe class had purchased this supplemental cancer-only policy, and presumably desired greater benefits. The Gooch class contained individuals who were aggrieved by the defendant's interpretation ofthe contractual phrase "actual damages" when they submitted a claim and received reduced benefits. The class also contained individuals who had not submitted a claim, so they were not aggrieved by the defendant's interpretation ofthe phrase ''actual damages." Thus, when the Gooch court stated that "[a]ll of the class members need not be aggrieved by . . . [the] defendant's conduct in order for some ofthem to seek relief under Rule 23(b)(2)," it did not mean that a group ofplaintiffs could target a policy that would not potentially cause uniform harm. The Gooch class members were not then aggrieved by the defendant's
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interpretation ofthe contract simply because they had not made a claim under that provision of the policy, not because ofsome fundamental inability to prove uniform injury (such as not having purchased the cancer-only insurance policy). Yet, if in the future, these non-aggrieved class members made a claim under the policy, they would have received reduced benefits and therefore would have been injured in the same way as the other class members by the defendant' s interpretation ofthe contractual language in the cancer-only policy. Their coverage, in other words, was affected even ifno claim had yet been made. Thus, the relief was indivisible in nature as to the entire class, whether each individual class member had made a claim or not, and the court's ruling on the defendant's interpretation ofthe contract would "generate common answers" apt to drive the resolution of the litigation. Dukes, 564 U.S. at 350. Indeed, the harm would be effectively redressed by final injunctive or declaratory relief with respect to the entire class.
The policies or practices targeted by a proposed plaintiff class must at a minimum have the potential to uniformly harm the class so that the entire class has an interest in modifying those policies. In the case subjudice, individuals who are currently residing in Large ICFs and who have requested community-based services are potentially harmed by the policies targeted by Plaintiffs, i.e., providing fewer community services slots than are necessary to meet this need.
However, some of the class members who after counseling indicate that they "may be" interested in community-based services will not be harmed by this targeted conduct. Some ofthe class members who indicated that they "may be" interested in community-based services will decide that they prefer to stay in a Large ICF. These class members, therefore, will not be harmed by the Ohio Defendants' failure to fund community-based services. Indeed, the opposite.
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The class members who decide that they prefer to stay in a Large ICF may actually be harmed by Plaintiffs' proposed modification of Ohio's funding policies, which would divert funding away from these class members' preferred service option (Large ICFs) to communitybased service. Indeed, this concern is not merely hypothetical. The Guardians in this case make this precise contention. Thus, some ofthe class members will not "complain ofa pattern or practice [failure to sufficiently fund community-based services] that is generally applicable to the class as a whole." Id. (quoting Gooch, 672 F.3d at 428). The class members who do not want community-based services do not complain that there are insufficient community-based services available for them.
The potentially aggrieved class members in the instant action are those individuals with intellectual and developmental disabilities who have indicated that they want community-based services. If Ohio does not have enough "community-based services required by the Plaintiff class," this group is harmed - a harm that may be "redressed by the expansion ofcommunity based services." (Pls.' Mot. for Class Cert. at 41, ECF No. 42) (articulating requested relief)
The same issues ofcohesiveness and homogeneity ofinterests exist with Plaintiffs' proposed "at-risk" class (individuals who "are at serious risk ofinstitutionalization in an Intermediate Care Facility with eight or more beds and have, by placing themselves on a waiting list for community-based services, expressed an interest in receiving integrated services while continuing to live in the community"). The DD Boards provide evidence that placement on a waiting list and assignment to a priority category is not necessarily reflective ofneed or desire for community-based services.
Specifically, the DD Boards provide affidavits from two individuals who oversee the
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implementation ofthe waiting lists for Cuyahoga and Franklin Counties, the two most populated counties in Ohio.3 (DD Boards' Supp. Mem. in Opp. at 3, ECF No. 293; Aff. of Amber Gibbs~
2, ECF No. 293-1; Aff. ofKarin Crabbe 1M[ 1, 2, ECF No. 293-2.) These affiants indicate the
parents and guardians ofindividuals with intellectual and developmental disabilities are encouraged by DD Board staffand other advocates to place their eligible family members on the
mr waiting lists as early as possible, even ifthey do not need services. ld. 5, 6, id.1M[3, 4
Further, the affiants state that placement in a priority category is determined by whether or not the person meets the priority criteria and does not reflect a need for services in the near future. Id., id.
The DD Boards also provide affidavits that demonstrate that placement in priority does not mean that people are at serious risk ofinstitutionalization in an ICF of any size, or that they will accept community-based services when offered. The DD Boards provide the example of Rebecca Huelskamp, the mother and guardian ofher daughter Patricia who lives at home and is actively engaged in work and community activities. (Aff. of Rebecca Huelskamp ~ 5-10, ECF No. 293-3.) Patricia has been engaged in competitive employment since 2005, using the sheltered workshop at times when not on her regular job. She has had steady employment at a local private company since 2011 at a rate above minimum wage. When not working, Patricia has a wide range ofinterests and activities. Patricia has been on the waiver waiting list for at least 15 years and was placed in the Aging Caregiver priority category. Patricia's mother attests in her affidavit that she did not place Patricia on the waiting list because ofan immediate need for a waiver from ICF placement; rather she wanted to be on the list ifa need arose in the future.
3 The average county population in Ohio is 131,096. Both Franklin and Cuyahoga Counties have over 1.2 million residents. WIKIPEDIA, the Free Encyclopedia, List ofCounties in Ohio, at https://en.wikipedia.org/wiki/List_of_counties_in_Ohio (last visited March 29, 2018).
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The DD Boards show that the experience ofthe Huelskamp family is not unique. A significant percentage of persons who are offered waivers from ICF placement decline the offer while remaining on the wait list. With respect to Level One waivers in Cuyahoga County, Amber Gibbs stated in her affidavit:
Since August (2017], the DD Board contacted 77 people on the waiting list who met priority criteria under Ohio Admin. Code§ 5123:2-1-08(D)(10) to offer them Level One waivers. Ofthese 77: a. 42 (54.5%) elected to accept the waiver and are being enrolled; b. 27 (35%) declined the waiver but requested that they be left the Waiting List; c. 8 (1 0.5%) did not respond to letters sent to their home offering them a waiver. {Aff. of Amber Gibbs~ 4, ECF No. 293-1.) Plaintiffs reply that this inquiry is a "merits question" that is not proper at the class certification juncture. (Pis.' Final Reply at 2-3, ECF No. 300.) This Court disagrees. The Court does not review the evidence to determine whether the individuals who have placed themselves on a wait list are unnecessarily institutionalized, i.e., whether Ohio provides sufficient community-based services to comply with the ADA. Instead, the Court reviews the evidence as part of its "rigorous analysis" required under Rule 23 to determine whether the proposed class members have homogenous interests so that the relief sought would benefit them. Senter v. Gen. Motors Corp., 532 F.2d 511, 525-26 (6th Cir. 1976) (stating that the rigorous analysis "[o]rdinarily, this means that the class detennination should be predicated on evidence presented by the parties concerning the maintainability of the class action") (citing In reAm. Med. Sys., Inc., 75 F.3d at 1079). The Court concludes that the proposed "at risk" class members do not have homogenous interests for the same reasons the proposed class members above did not. That is, the class
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members who may want community-based services do not have homogenous interests with those class members who do want community-based services. Likewise, some class members who are on the wait list want community-based services and some want services provided in Large ICFs. In a situation where there is limited funding, this not only reflects lack ofhomogenous interests, it indicates competing interests, which could actually harm certain members ofa broad Rule 23(b) class because ofthe lack of notice and opportunity for class members to opt out. Therefore, because the proposed class does not suffer a uniform harm that can be remedied with the same relief, certifying a broad class is inappropriate. See Reeb, 435 F.3d at 645-46 (the plaintiffs must show "that the party opposing the class has affected the class in a way generally applicable to the class as a whole so that final injunctive or declaratory reliefwith respect to the entire class is appropriate.") (citing Fed. R. Civ. P. 23(b)(2)).
This Court has "broad discretion to modify class defmitions," and a district court's sua sponte amendment "show[s] that the court took seriously its obligation to make appropriate adjustments to the class definition as the litigation progressed." Powers v. Hamilton County Pub. Def Commn., 501 F.3d 592, 619 (6th Cir. 2007) (citing as examples Schorsch v. HewlettPackard Co., 417 F.3d 748, 750 (7th Cir. 2005) (noting that "[l]itigants and judges regularly modify class defmitions"); In re Monumental Life Ins. Co., 365 F.3d 408,414 (5th Cir. 2004) ("District courts are pennitted to limit or modify class definitions to provide the necessary precision.")). Based on the foregoing, the Court finds that the following revision of the class definition will ensure that a Rule 23(b)(2) class is properly constituted:
All Medicaid-eligible adults with intellectual and developmental disabilities residing in the state of Ohio who, on or after March 31, 2016, are qualified for home and community-based services, and, after receiving options COWlseling, express that they are interested in community-based services.
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This definition includes all individuals with intellectual and developmental disabilities who want to utilize the community-based services, whether they are currently in an ICF or in the community and wish to move to another setting in the community.
This modified class definition is similar in scope to the one certified in Lane v. Kitzhaber. 283 F.R.D. 587, 594 (D. Or. 2012), one ofthe main Olmstead class cases upon which Plaintiffs' rely. The Lane court certified a Rule 23(b)(2) class defined as:
Individuals with intellectual or developmental disabilities who are in, or who have been referred to, sheltered workshops and who are qualified for supported employment services. ld. at 594. The Lane court highlighted the homogeneity ofinterests among the class members: [A]ll plaintiffs are qualified for, but not receiving the full benefit of, supported employment services; all lack regular contact with non-disabled peers (other than paid staff); and all want to work, but are not working, in an integrated setting. As a result, they and all similarly situated persons suffer the same injury of unnecessary segregation in the employment setting Id. at 598 (emphasis added).
Thus, unlike the proposed class in the case subjudice, all members ofthe Lane class wanted the same relief- expanded community work opportunities. Consequently, final injunctive or declaratory reliefrequiring the state to plan, administer, operate and fund a system that provide employment services that allow the class members to work in the most integrated setting would remedy the uniform potential harm ofthe entire class. B. Plaintiffs' Proof on the Rule 23(a) Prerequisites
The class definition as modified by the Court also meets all ofthe criteria in Rule 23(a). The Ohio Defendants contend that Plaintiffs cannot meet their burden under Rule 23(a) to show commonality, typicality, and adequacy. The Court notes, however, that the Ohio Defendants' arguments, obviously, are not directed at the modified class definition the Court has set forth supra.
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"Commonality requires the plaintiffto demonstrate that the class members have suffered the same injury." Dukes, 564 U.S. at 349-50 (quotations omitted). A:; discussed at length above, the modified class definition oontains individuals who have suffered the same injury. The class members wish to receive care in the conununity and contend that Ohio "provid[es] fewer
slots than are necessary to meet the demonstrated need." (Pis.' Reply at 37, ECF No. 283.)
In tum, typicality exists where "by pursuing their own interests, the class representatives also advocate the interests of the class members." In re Whirlpool Corp., 722 F.3d 852-53 (6th Cir. 2013). "A necessary consequence ofthe typicality requirement is that the representative's interests will be aligned with those ofthe represented group, and in pursuing his own claims, the named plaintiffwill also advance the interests ofthe class members." In reAm. Med. 5)>s., 75 F.3d at 1082 (quotations omitted). Here, Plaintiffs' interest in utilizing community-based services is aligned with the class who also seek an expansion of waiver services.
Last, the standard for adequacy of representation overlaps significantly with the commonality and typicality requirements. See Prater v. Ohio Educ. Ass'tl, C2041 077, 2008 WL 2566364, at •7 (S.D. Ohio June 26, 2008} (citing Dalesandro v.Jnternationaf Paper Co., 214 P.R.D. 473, 483 (S.D. Ohio 2003) and Amchem Prods., Inc. 52! U.S. at 626 n. 20). Class representatives are adequate when it appears that they will vigorously prosecute the interests of the class, which usually will be the case if the representatives are part of the class, possess the same interest, and suffer the same injury as the class members. Here, Plaintiffs have vigorously prosecuted the interests of the class and possess the same interest and same injury of the class members, i.e., insufficient community-based services resulting in unnecessary institutionalization.
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m.
For the reasons set forth above, the Court GRANTS IN PART AND DENIES IN PART Plaintiffs' Motion/or Class Certification. (ECF No. 42.)
IT IS SO ORDERED.

DATE

. SARGUS, JR. --TED STATES DISTRICT JUDGE

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 Case: 2:16-cv-00282-EAS-EPD Doc #: 326 Filed: 09/14/18 Page: 1 of 85 PAGEID #: 5421

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

PHYLLIS BALL, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

JOHN KASICH, et al.,

:

:

Defendants,

:

:

and

:

:

OHIO ASSOCIATION OF

:

COUNTY BOARDS

:

:

Defendant-Intervenor,

:

and

:

:

GUARDIANS OF HENRY LAHRMANN, :

et al.,

:

:

Defendants-Intervenors and

:

Third-Party Plaintiffs,

:

v.

:

:

OHIO DISABILITY RIGHTS LAW

:

AND POLICY CENTER, INC. d/b/a

:

DISABILITY RIGHTS OHIO,

:

:

Third-Party Defendant.

:

Case No. 2:16-cv-282 Chief Judge Edmund A. Sargus, Jr. Magistrate Judge Elizabeth P. Deavers

CROSSCLAIMS AND THIRD-PARTY COMPLAINT OF INTERVENOR-GUARDIANS

For their Crossclaims against the Defendants – the term “Defendants” is used hereinafter to

collectively include and refer to: (a) John Kasich, Governor of the State of Ohio, John Martin,

Director of the Ohio Department of Developmental Disabilities (“DODD”), and Barbara Sears,

Case: 2:16-cv-00282-EAS-EPD Doc #: 326 Filed: 09/14/18 Page: 2 of 85 PAGEID #: 5422
Director of the Ohio Department of Medicaid (“ODM”), (each being named in their official capacity and collectively referred to hereinafter as the “State Defendants”), and (b) the Ohio Association of County Boards Serving People with Disabilities (“OCB”), on behalf of all 88 of Ohio’s County Boards of Developmental Disabilities (“DD Boards”) – and their Third-Party Complaint against Ohio Disability Rights Law and Policy Center, Inc. d/b/a Disability Rights Ohio (“DRO”), the Intervenor-Guardians (hereinafter referred to as the “Guardians”), allege and state as follows:
I. INTRODUCTION 1. Plaintiffs filed this lawsuit citing, and premised upon, the Supreme Court’s landmark decision – Olmstead v. L.C., 527 U.S. 581 (1999) – which interpreted the Americans with Disabilities Act (“ADA”), 42 U.S.C. 12132 et seq. (Complaint at ¶ 1; ECF. No. 1). 2. But in Olmstead, Justice Ginsburg wrote: “We emphasize that nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings. . . . Nor is there any federal requirement that community-based treatment be imposed on patients who do not desire it.” Id. at 601-02; see also Youngberg v. Romeo, 457 U.S. 307, 327 (1982) (Blackmun, J., concurring) (“For many mentally retarded people, the difference between the capacity to do things for themselves within an institution and total dependence on the institution for all their needs is as much liberty as they ever will know.”). 3. Similarly, in his concurrence, Justice Kennedy warned that: It would be unreasonable, it would be a tragic event, then, were the Americans with Disabilities Act of 1990 (ADA) to be interpreted so that States had some incentive, for fear of litigation, to drive those in need of medical care and treatment out of appropriate care and into settings with too little assistance and supervision. . . . In light of these concerns, if the principle of liability announced by the Court is not applied with caution and circumspection, States may be pressured into attempting compliance on the cheap, placing marginal patients into integrated settings devoid of the services and attention necessary for their condition.
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Id. at 610; see also 28 C.F.R. pt. 35, App. A, p. 450 (1998) (“Persons with disabilities must be provided the option of declining to accept a particular accommodation.”).
4. Fast forward 20 years and the tragedy Justice Kennedy foretold is unfolding in Ohio. Today it is the so-called “institutional” living choice – not the “community” choice – that is systematically denied by the Defendants’ administration, management, and funding of Ohio’s service system for people with intellectual and developmental disabilities (“DD”).
5. But as this Court has noted, it is the institutional choice – meaning Intermediate Care Facilities for Individuals with Intellectual Disabilities (“ICFs”) – that is the “entitlement” for Medicaid eligible DD residents. Opinion and Order, March 30, 2018, fn. 1 at 5 (ECF No. 303).
6. By law, the “community” alternative to the ICF entitlement – called a “waiver” – is dependent on a state offering the ICF services. 42 U.S.C. § 1915(c). Waiver services are not an entitlement, meaning states are not required to offer waiver services. Id. As such, a state can provide ICF services without offering waiver services, but it cannot offer waiver services without offering ICF services. Id.
7. The Centers for Medicare and Medicaid Services (“CMS”), which is an agency of the United States Department of Health and Human Services (“HHS”), states on its website that:
States may not limit access to ICF/ID service, or make it subject to waiting lists, as they may for Home and Community Based Services (HCBS). Therefore, in some cases ICF/ID services may be more immediately available than other long-term care options. Many individuals who require this level of service have already established disability status and Medicaid eligibility. https://www.medicaid.gov/medicaid/ltss/institutional/icfid/index.html (last visited September 4, 2018). 8. CMS continues by stating: “ICF/ID is the most comprehensive benefit in Medicaid” and concludes by stating: “There are few resources like an ICF/ID under any payment source.” Id.
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9. But in Ohio, even though the ICF option is an entitlement, most Medicaid eligible DD residents (and their guardians) only learn of the ICF option – if they ever do – when they are selected for home and community based waiver services (“HCBS”), which are not an entitlement. This is because Defendants – working in conjunction with Disability Rights Ohio (“DRO”), Ohio’s “Protection & Advocacy” agency paid millions of taxpayer dollars to advocate for all disabled residents – actually thwart (and in some cases deny) the ICF choice.
10. As such, thousands of Medicaid eligible Ohioans are entitled to a service for years – the ICF setting – before they are informed of it. They are effectively denied “the most comprehensive benefit in Medicaid.” Id.
11. In fact, the main entity that interacts with eligible DD participants – DD Boards – claim they are not required to discuss or offer the ICF entitlement, and therefore routinely do not discuss or share the ICF entitlement option with eligible families.
12. OCB does not reference ICFs on its website, and few, if any, of the 88 DD Boards reference ICFs on their websites.
13. Likewise, although the Ohio Department of Medicaid (“ODM”) has much information on its website about waivers, it has no information about ICFs on its website. http://medicaid.ohio.gov/ (visited Sept. 14, 2018).
14. The Guardians, like thousands of others, have placed their loved ones in ICFs – which are “homes” not “institutions” – not because the Defendants or DRO provided them necessary information about ICFs, but all too often in spite of them failing to do so.
15. As a result, today hundreds, perhaps thousands, of Medicaid eligible DD Ohioans would choose an ICF home, if only they were given – not kept ignorant of – the option.
16. Existing ICF residents are most threatened by Defendants’ unlawful practices and
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policies because when ICF vacancies go unfilled, ICF providers are forced to close, thereby effectively denying the ICF entitlement to both prospective ICF residents and existing ICF residents, who often are forced to then find alternative (non-ICF) settings.
17. For those in ICFs, since at least 2012, Defendants – at the urging and threats of DRO – have engaged in an open and hostile campaign to limit and close ICFs, as detailed below.
18. The ICF “entitlement” is thus thwarted and threatened because the State of Ohio violates not just federal law, but also its own laws and regulations, in failing to properly and adequately communicate, administer, and fund the ICF “entitlement” – as Justice Kennedy presciently cautioned.
19. The irony is that Plaintiffs brought this case premised on the fiction that Defendants have an “overreliance on large ICFs” which they use to engage in “unnecessary institutionalization and segregation.” Complaint at ¶ 9. The truth is the opposite: Defendants fail to administer and adequately fund the ICF entitlement. As detailed below, Defendants and DRO are engaged in an active campaign to severely restrict, if not eliminate, the ICF entitlement.
20. The Guardians bring these claims for a simple reason: to ensure that the ICF right remains a right in practice, not theory. To do so, Defendants must actually offer it, properly administer it, and adequately fund it.
II. JURISDICTION AND VENUE 21. This action is brought pursuant to: (i) Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132 et seq., (ii) Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, (iii) the Social Security Act, 42 U.S.C. § 1396n, (iv) the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (“DD Act”), 42 U.S.C. § 15041 et seq., (v) the Fourteenth Amendment to the United States Constitution, and (vi) Ohio Revised Code (“O.R.C.”)
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Chapters 5123, 5124, 5126, 5162-66. 22. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and to the extent
necessary, 28 U.S.C. § 1367(a). 23. The Guardians’ claims for declaratory and injunctive relief are authorized by 28
U.S.C. §§ 2201(a) and 2202, 42 U.S.C. § 12133, 29 U.S.C. § 794a, and 42 U.S.C. § 1983, and by Rules 57 and 65 of the Federal Rules of Civil Procedure.
24. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the acts and omissions giving rise to the claims occurred in the Southern District of Ohio.
III. PARTIES A. Guardians1 25. The Guardians – mostly mothers, fathers, brothers, and sisters – are the guardians of their loved ones (i.e., “wards”), each of whom is a Medicaid eligible DD resident receiving, or entitled to receive, ICF services in Ohio. Collectively, the Guardians (and their loved ones) are diverse individuals scattered throughout all parts of Ohio, who – as their stories below detail –
1 The “Guardians” are the guardians for ten DD residents. The Court granted their intervention on July 25, 2017. See Opinion and Order (ECF No. 261). In so doing, the Court also granted 99 other guardians’ (the “Additional Guardians”) motion to join in the Guardians’ motion to intervene, stating: “The Court finds well taken the Additional Guardians’ request to join the Guardians’ Motion to Intervene. The Additional Guardians’ interests align with the Guardians’ interests and their ability to intervene rises or falls with the Court’s ruling on the Guardians’ Motion to Intervene. Accordingly, the Court grants the Additional Guardians’ Motions to Join the Guardians’ Motion to Intervene.” Id. at 8. As such, the Guardians effectively represent a class of DD Medicaid-eligible individuals who: (a) already live in an ICF and want to remain there, or (b) lack sufficient information about their ICF entitlement, including its availability, to make an informed choice about it. Guardians reserve their right to seek class certification for their claims if necessary. Cf. Cole v. City of Memphis, 839 F.3d 530, 541-42 (6th Cir. 2016), cert denied, 137 S. Ct. 2220 (2017) (discussing how in Rule 23(b)(2) injunctive class actions, “a remedy obtained by one member will naturally affect the others”).
6

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share a common characteristic: they desire the continued provision of ICF services for their loved ones, which entitlement has been systematically delayed, denied, or impeded by Defendants and DRO. Insofar as they have received ICF services, it is largely in spite of – not because of – the efforts and services provided by Defendants and DRO.
Henry & Elizabeth Lahrmann 26. Caroline and Bill Lahrmann are parents of Henry and Elizabeth Lahrmann, 18 year old twins who have been residents of a large ICF in Columbus, Ohio since August 2000. Caroline and Bill also have a 21 year-old non-disabled son, who is a college student. 27. Henry and Elizabeth were both born with a like condition consisting of profound mental retardation, quadriplegia, and intractable seizure conditions. 28. Henry functions at the level of a four to seven month old infant. Elizabeth functions at the level of a four month old infant. Henry and Elizabeth are non-verbal and receive all nutrition and medication through gastro-intestinal tubes and require various orthotic equipment to reduce deformity. They require total care in all aspects of daily living. 29. Henry and Elizabeth have thrived in their ICF, faring far better and achieving more than medical doctors had ever projected for them. This is attributed to the superior care they receive at their ICF, consisting of 24 hour nursing, physical and occupational therapy, and the oversight of a medical director, all whom have direct and significant experience in the care and treatment of individuals with profound intellectual and developmental disabilities. 30. Elizabeth and Henry each have Qualified Intellectual Disabilities Professionals (QIDP) assigned to them as direct service professionals who perform daily care. Each has been followed by behavioral specialists at different points in their lives for behaviors that could cause self-harm.
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31. Despite their profound disabilities, Henry and Elizabeth are happy and welladjusted. Henry enjoys propelling his chair, performing turns, and getting out of self-imposed impossible situations with a seeming desire to receive acclaim from onlookers. He loves “running” through the long halls of his ICF in his gait trainer and pedaling his adaptive tricycle. He relishes weekly swimming at his DD Board school for children with developmental disabilities.
32. Elizabeth enjoys the varied social interactions at her ICF home, hanging out with other residents, and engaging in conversations through her coos and giggles. She will laugh on cue at the punch line of any joke. She also loves her school and its many activities including weekly swimming.
33. Henry shares a four-bed room with three men of similar age. Elizabeth now shares only a three-bed room with two women of similar age, as one roommate recently moved to the 8bed group home the ICF was required to build as a result of state-imposed downsizing efforts.
34. Caroline and Bill prefer their children sharing a room with three residents as opposed to a single room or even a room with only one other resident, as it ensures multiple staff are in the room overnight more frequently attending to residents, maximizing the safety of each resident. Given Henry and Elizabeth’s seizure conditions, need for repositioning, and other personal care needs, frequent staff attention overnight is critical.
35. Henry and Elizabeth are extremely social. They would feel isolated and “segregated” in a room alone or even with just one other resident as they seek and enjoy the company of their fellow residents and staff. Given their developmental age, Henry and Elizabeth have no concerns regarding privacy.
36. Caroline and Bill were given the option by the ICF to move Henry and Elizabeth into one of two new 8-bed ICF homes built near to the current facility. Henry and Elizabeth would
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have had private bedrooms in this new home. Caroline and Bill declined this option due to the reasons noted above: namely, their quality of life would get worse in a smaller setting.
37. Though Caroline and Bill have no interest in Henry and Elizabeth receiving services in a waiver (or small ICF) setting, they remain on the Franklin County Board of Developmental Disabilities (FCBDD) "waiting list" for "waiver services,” which list they have been on for 18 years.
38. In 2000, Henry and Elizabeth were placed on the FCBDD waiting list by Caroline and Bill signing a document for each infant at the urging of a FCBDD caseworker, who said there was “no downside to doing so.” At the time, Caroline made clear that she did not want a small “community” group home placement for Henry and Elizabeth, but the caseworker indicated that she might need it when Henry and Elizabeth turned 18. Understanding that her infants’ complex medical needs would be lifelong, Caroline knew a “community” group home placement would not provide the responsible on-site, 24-hour supervision, and expertise to safely care for her twins.
39. Caroline and Bill were not told of the ICF option when meeting with the FCBDD caseworker in 2000 when the family was seeking services – even though the ICF home was ten miles from Caroline and Bill’s home and specialized in the care of children and adults with profound intellectual and developmental disabilities and medical needs.
40. Instead, Caroline and Bill only learned of the ICF from their phone book, not from any information provided by any of the Defendants.
41. At no time in over 18 years of interacting with FCBDD and in the four years of interacting with the State of Ohio has anyone advised or explained to Caroline or Bill that ICFs are a choice, let alone an entitlement. To the contrary, Caroline and Bill have received repeated messages from FCBDD, the State of Ohio, and DRO that the ICF option is being phased-out in
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favor of community settings. 42. Even if Henry and Elizabeth can continue to reside in their current ICF home,
Caroline & Bill are deeply concerned whether Henry and Elizabeth will maintain the same quality of life and supports that they currently receive and that have been in place at their ICF home for decades.
43. Because of laws and regulations passed since 2014, Henry and Elizabeth’s ICF has been forced to downsize a portion of the setting to small 8 bed facilities. Future downsizing will require smaller ICF settings to be built in neighborhoods throughout Columbus away from the resources of the main campus. Even if Caroline and Bill can avoid Henry and Elizabeth’s placement in an 8 bed, “isolated” setting, Henry and Elizabeth’s care will suffer as the supports that they currently enjoy will be spread across multiple facilities throughout Columbus. Such a model threatens the ability of their ICF home to remain in business as costs increase dramatically. As a result, their ICF is forced to engage in private fundraising to support the ICF residents.
44. Specifically, the ICF provider spent more than $2 million to build the two eight bed ICF facilities, money that could have been spent on updating the two 104 bed facilities for the benefit of 208 residents. One of the eight bed facilities was delayed in opening because the ICF could not maintain sufficient staff to open it. Such a circumstance causes great worry for Caroline and Bill because it threatens the sustainability of the economic model the State of Ohio is imposing on their children’s ICF home.
45. The smaller ICF model – or a waiver setting – threatens the health, safety, quality of life, and social opportunities for Henry and Elizabeth. It would be impossible to duplicate the services Henry and Elizabeth receive in a small setting.
46. Alternatively, if the services Henry and Elizabeth receive in their current ICF could
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be duplicated in a smaller setting, it would cost significantly more to do so because of the loss of economies of scale.
47. For Henry and Elizabeth, a so-called community (i.e., waiver) setting would be the most restrictive and segregated setting for them – as their quality of life would deteriorate – while an ICF is their least restrictive environment.
48. A large ICF is Bill and Caroline’s choice for their children. Elizabeth Colombo 49. Robert and Susana Colombo are the parents and guardians of Elizabeth Colombo, a 26 year old woman with intellectual disabilities and behavioral concerns causing her to become physically aggressive at times. Since the age of 15, Elizbeth has resided in a 34-bed ICF in northern Ohio where she receives the supports necessary to manage her behaviors in an environment in which she could form relationships. 50. Prior to admission to the ICF, Robert and Susana cared for Elizabeth in their home. In Elizabeth’s early years, Susana provided care for her during the day. When Elizabeth became a teenager, the family reached out to the Medina County DD Board for assistance as Elizabeth’s aggressive behaviors were becoming increasingly difficult for the family to manage. 51. Elizabeth received a waiver for respite services so that caregivers could come in the family home 16 hours per week. Robert and Susana were not told of the ICF choice even though their daughter received a waiver. 52. Robert and Susana expressed concern to the DD Board caseworker regarding the reliability of caregivers. Rather than inform them of their ICF entitlement, the DD Board noted that if Robert and Susana did not live together, they would receive more hours. 53. Reaching out to Elizabeth’s neurologist’s office, a nurse informed Robert and
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Susana about a facility that may be of assistance to them. Robert and Susana reached out to the facility to learn about its services, not understanding (or caring) that it was an ICF. After contacting and touring the ICF, Robert and Susana eventually sought admission for Elizabeth.
54. In the decade since her admission to the ICF, Elizabeth has learned to form relationships, which she was unable to do while living in her parent’s “community” home.
55. For Elizabeth, a so-called community (i.e., waiver) setting would be the most restrictive setting for her – as her quality of life would deteriorate – while an ICF is her least restrictive environment.
56. A large ICF is Robert and Susana’s choice for Elizabeth. Tim Collett 57. Deborah Bixler is the guardian for Tim Collett, a 54 year-old-man with profound intellectual and developmental disabilities. Since 1980 Tim has lived at Brookside, a large ICF in Mason, Ohio. He shares a bedroom with three other men. Tim became a ward of the state after his aging mother was no longer able to care for him. 58. Until 2009, Tim was a ward of Advocacy and Protective Services, Inc. (APSI), the designated state agency that serves as guardian – the guardian of last resort – when someone lacks a family or friend guardian. 59. Deborah worked at Brookside caring for Tim – and many others – as a direct service professional (DSP) from approximately 1992 to 1995. She became motivated to be Tim’s guardian because his medical problems worried her. She saw that he needed a caring person to support him during visits to the hospital, in the recovery process, and in making medical decisions, which APSI did not provide. 60. So in 2009, Deborah sought – and obtained – guardianship for Tim.
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61. Tim is extremely happy and well cared for at Brookside. He is an active participant in holiday events and social outings. Deborah jokes that his social calendar is more active than hers.
62. In late 2015, Tim’s ICF provider was planning to purchase property to build small ICFs away from the main campus. Residents from Tim’s ICF were to be moved to these small settings. Deborah was opposed to the downsizing plans. She prefers Tim to have three roommates. Deborah also prefers the large setting with its long halls, wide doorways, and big activity room. Tim benefits from the increased socialization in this facility as well as the medical specialists and therapy supports.
63. Other guardians from Tim’s ICFs shared Deborah’s concerns. Deborah organized a meeting with guardians and invited Director John Martin of DODD to speak at the meeting and hear guardian concerns about the downsizing plans. Director Martin questioned why the facility was downsizing if the families were opposed to it.
64. Director Martin did not inform families that if the ICF provider did not downsize, the ICF would face financial penalties. Additionally, DODD can suspend new ICF admissions if the provider does not submit an approved downsizing plan and fulfill it in a manner satisfactory to DODD. O.R.C. §5124.70(F).
65. For Tim, a so-called community (i.e., waiver) setting would be the most restrictive setting for him – as his quality of life would deteriorate – while an ICF is the least restrictive environment.
66. A large ICF is Deborah’s choice for Tim. Shawna Klein 67. Richard Klein is the father and guardian of Shawna Klein, a 46 year old woman
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with profound intellectual and developmental disabilities that lives at a 98 bed ICF in Dayton, Ohio operated by the Montgomery County Board of Developmental Disabilities.
68. Shawna resides in a 12-bed home with a roommate on the ICF’s campus. 69. Shawna requires assistance in all aspects of daily living and is non-verbal. 70. Richard and Shawna’s mother cared for her in their home until she was nine years old, accessing treatment with doctors and private local services for physical therapy and schooling/training. 71. When Shawna was six years old, Richard and Shawna’s mother sought assistance with Shawna’s schooling at the Greene County Board of DD. Shawna accessed various school programs with Green County and elsewhere until the age of nine but was unable to make significant strides. 72. In 1980, Richard and Shawna’s mother looked for alternative placement for Shawna. Teachers at a private Dayton-area special needs school told them about the Springview Developmental Center. Shawna was admitted to Springview in 1981. Within two years of admission to Springview and the benefit of its active treatment, Shawna began to walk when assisted to a standing position and learned to feed herself with assistive prompts. 73. In 2003, the State of Ohio closed Springview. Shawna then moved to Montgomery Developmental Center for five years, and then to her present ICF residence. 74. At no time did Richard learn about the ICF option through interactions with his local DD Board, DRO, DODD, or ODM, none of which ever provided him information about this option that has served Shawna so well. 75. For Shawna, a so-called community (i.e., waiver) setting would be the most restrictive setting for her – as her quality of life would deteriorate – while an ICF is the least
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restrictive environment. 76. A large ICF is Richard’s choice for Shawna. Barbara Jean Meola and Mary Anne Meola 77. Linda Wittman is one of three Meola sisters. Linda is the guardian for her sisters,
Barbara Jean Meola and Mary Anne Meola, who have intellectual and developmental disabilities. Barbara is 67 years old and functions at the approximate level of a three-year old. Mary Anne is 61 years old and functions at the level of a nine month infant.
78. Barbara and Mary were cared for in their family home by their parents until they moved to Hartville Meadows (HM), a 32-bed ICF in Hartville, Ohio about 30 years ago. HM was created by a couple who had a daughter with developmental disabilities. Growing up, the sisters received school services, then sheltered workshop and transportation services, from their local DD Board.
79. Linda – who is a registered nurse – and her aging parents increasingly felt they needed to find care for Barbara and Mary outside of the family home. They knew that a group home placement would not safely address the separate, complex needs of Barbara and Mary. After years of searching for a home, Linda was fortuitously informed about HM from a patient of hers who was a volunteer at HM. Upon touring HM, the family was confident the setting was appropriate and placed their daughters on the waiting list for HM: Barbara for 6 years until an opening was available, and Mary for 13 years. When placed at HM, their father was 71 and had been living with Parkinson’s disease for six years. Their mother was 68.
80. Barbara and Mary continued to attend the DD Board workshop after moving to HM. Approximately 10 years ago, the DD Board approached ICF providers that had residents who attended its workshop. The DD Board informed ICF providers that it was increasing the per
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diem charge for ICF residents who attended its workshops. The charge was increased from approximately $42 per day to approximately $107 per day. The DD Board asserted that it was costlier for the county to provide services to ICF residents because of their intensive needs. The ICF residents of HM were forced to withdraw from the DD Board’s sheltered workshop programs.
81. Medicaid regulations, however, require ICFs to provide a continuous plan of active treatment for each resident. Day habilitation provided by sheltered workshops is a major component of the active treatment regimen for many ICF residents.
82. HM’s parent company opened a sheltered workshop to fill the void left by the DD Board’s actions. Its workshop was open to ICF residents and waiver recipients. Barbara and Mary are clients of the new workshop and enjoy the opportunities it provides. The local community benefits from the work and creativity of the workshop employees. Community members frequent its gift shop, cafe, thrift store, and event center. Workshop clients help to operate these enterprises and supply them with their hand-made products.
83. For Barbara and Mary, a so-called community (i.e., waiver) setting would be the most restrictive setting for them – as their quality of life would deteriorate – while an ICF is the least restrictive environment.
84. A large ICF is Linda’s choice for Barbara and Mary. Garry Wojciak 85. Kathy Wojciak is the sister and guardian of Garry Wojciak, a 62 year old man with severe intellectual and developmental disabilities associated with Fragile X syndrome. He functions at about a two year old level. 86. Garry has lived at Mount Aloysius, a 78 bed ICF in Perry County, for 43 years. 87. Prior to living in the ICF, Garry was cared for by his parents and sister in their
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family home. During this early period, services of any kind were very sparse. 88. Garry’s parents were instrumental in founding the DD Boards in Ohio, and even
started their own school program before DD Boards were operational. Garry received school services from DD Boards when they first came into existence until approximately 1973.
89. Kathy and Garry’s mother continued to care for Garry in their home upon the death of Garry’s father in 1973. It became increasingly difficult to care for Garry in this way, at which time Kathy and Garry’s mother began contemplating an alternative placement for Garry.
90. Kathy and her parents learned about Mount Aloysius from the Catholic Diocese in Cleveland, Ohio.
91. When Garry was admitted to Mount Aloysius it was a privately run facility funded with private donations. Since that time, Mt. Aloysius applied for ICF designation and Medicaid funding.
92. In addition to serving as her brother’s guardian for more than 20 years, Kathy worked at the Cuyahoga County Board of Developmental Disabilities for more than 35 years, serving as the Manager of the Early Childhood Department, where she supervised approximately 30 intervention specialists. During her career with the DD Board, Kathy also supervised two center-based programs for young children with DD, a home-based autism program, and “Part C” assessment teams for IDEA. Since retiring from the DD Board, Kathy has taught at a university preparing future special educators.
93. In Kathy’s experience with DD Boards, families of eligible individuals are not told that their family member is entitled to an ICF placement or that a waiver “waives” this entitlement.
94. Garry likes to walk, which helps control his anxiety associated with fragile X syndrome. To do so, he needs a controlled, supervised environment, which Mt. Aloysius is great
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for, as it has expansive grounds. For Garry, a so-called community (i.e., waiver) setting would be the most restrictive setting for him – as his quality of life would deteriorate – while an ICF is the least restrictive environment.
95. A large ICF is Kathy’s choice for Garry. Kelly Jones 96. Dan Jones is the father and guardian of Kelly Jones, a 33 year old woman with Cornelia de Lange syndrome who since 1997 has lived in a 34 bed ICF in northern Ohio. 97. The syndrome with which Kelly was born severely limits her intellectual functioning. Kelly is non-verbal and unable to live independently, nor can she be employed to perform simple tasks. 98. Kelly lives in a 6 bed-home with five other women on the ICF campus. 99. Dan and Kelly’s step mother, Sherry, cared for Kelly in their home until she was 13 years old. Before that, for several years, Kelly received a waiver from the Cuyahoga County Board of DD that provided caregivers inside their home approximately 25-30 hours per week. 100. When Kelly was 12 years old, Dan and Kelly’s mother looked for permanent placement for Kelly outside of the home. 101. When consulting with the Cuyahoga County DD Board, the case manager first only told Dan and Kelly’s mother of “waiver” options. Kelly now enjoys the best, fullest life possible with maximum services provided at her ICF. 102. For Kelly, a so-called community (i.e., waiver) setting would be the most restrictive setting for her – as her quality of life would deteriorate – while an ICF is the least restrictive environment. 103. A large ICF is Dan’s choice for Kelly.
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Glenn Baxter 104. Lee Ann Mielke is the sister and guardian of Glenn Baxter, a 54 year old man with autism and severe obsessive compulsive disorder. Glenn functions intellectually approximately at the age of a 5-year old. Since 2010, Glenn has resided in a 23-bed ICF in Minster, Ohio. 105. As a child, Glenn was cared for in his family home until his mother’s death in 2001. 106. Upon the death of their mother, Lee Ann assumed guardianship and Glenn was cared for by Lee Ann and her husband in their home. After 10 years of caring for Glenn, Lee Ann chose to place him at his present ICF when an opening became available. Lee Ann was surprised and pleased how well Glenn adapted to the new setting. 107. For Glenn, a so-called community (i.e., waiver) setting would be the most restrictive setting for him – as his quality of life would deteriorate – while an ICF is the least restrictive environment. 108. A large ICF is Lee Ann’s choice for Glenn. Noah Goldberg2 109. Shari and Michael Goldberg are the parents of Noah Goldberg, a 21 year old man with autism, who reads at the fourth grade level and needs supports to help with daily living skills. Shari is his guardian and reports that he can never live alone. Shari and Michael also have another son, who recently graduated college, and now lives in New York City, his choice. They live with Noah in Pepper Pike, Cuyahoga County, Ohio. 110. Noah has received waiver services from the Cuyahoga County DD Board since he was four years old. Noah attended the local public schools through graduation and currently
2 The Guardians have moved to join the Goldbergs and the Edlers as additional parties pursuant to the Motion filed contemporaneously with these Crossclaims and Third-Party Complaint.
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receives vocational training services, which includes him working at a food bank, working at Goodwill, and working at MedWish, a charity that sends unused medical supplies around the world – all non-paid.
111. Despite interacting with the DD Board for almost two decades, Shari has never been told about – let alone offered – the ICF option. Whether she would select it or not, she would like to know of all her (and Noah’s) options.
112. Shari does not care how bureaucrats classify or score options. She does not care about acronyms. She simply wants options for Noah, including perhaps an "intentional (waiver) community," where Noah could live – if allowed – with the (disabled) friends he grew up with and attended school. She believes this will be his least restricted environment and the one that will allow him to flourish. But her experience is that DRO opposes intentional communities as being "segregated." She wants Noah to have the same choices as his brother, who recently lived "segregated" with only other college students, and now lives "segregated" in a large, impersonal apartment building.
Zoe & Maya Edler 113. Lisa and Jeff Edler are the parents of two children, Zoe, age 14 and Maya, age 11. The family lives in Mentor, Ohio. Zoe attends Mentor High School and Maya attends Sterling Morton School. 114. Zoe has a cognitive disorder due to a medical condition that affects her memory and has caused memory and language deficits. Maya has Down Syndrome. Both young ladies are active participants in their schools and communities. 115. In June 2014, after Lisa received a letter from the DD Board to determine whether their children were eligible for services, she was asked to schedule an appointment.
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116. When Lisa was interviewed by the DD Board, they discussed different services and types of waivers available. The representative encouraged Lisa to immediately "get on the waiver list.” At no time was an ICF mentioned in the discussion – either as an option or alternative. Additionally, it was never explained that a waiver meant "waiving our rights" to an alternative option. Both children have been placed on the DD Board waiting list for approximately four years running.
117. Zoe and Maya do not presently receive any services from the DD Board. 118. The DD Board representative has visited the Edler home several times. Lisa has also been in contact with the SSA numerous times over the years regarding waiting list placement, support services, waiver options, and the re-evaluation process. 119. Even if Lisa will never choose an ICF for her children, Lisa feels strongly that DD Board representatives should be explicit in articulating to all families what they are actually waiving from and that all options should be presented in a balanced way. Robert Hotze (ECF No. 258) 3 120. Linda Williams, a retired registered nurse, is the sister and guardian of Robert “Bobby” Hotze, a 64 year old mostly non-verbal man with intellectual and developmental disabilities who has resided at Mt. Aloysius, a large ICF in New Lexington, Ohio, since 1971. Linda is 70 years old and resides in Florida. 121. Linda only became guardian for Bobby on September 26, 2017 when his ICF placement became threatened. Linda had not sought guardianship previously as she lived out of state. 122. Bobby was cared for in his home by his parents and Linda until about 40 years ago.
3 The following is a summary for one of the 99 “Additional Guardians” who filed Joinders.
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By that point, Linda had married and left home, and Bobby’s parents realized they could no longer care for him at home.
123. Bobby’s parents searched for the best placement for Bobby and chose Mt. Aloysius. Bobby’s parents, along with other families, donated thousands of dollars and volunteer hours to build a swimming pool on campus and “Glow” House, an eight bed ICF where Bobby has lived since 2009. Bobby’s parents had hoped that by moving Bobby into “Glow” House, Bobby’s future at Mt. Aloysius would be secured. In her joinder, Linda wrote that Bobby’s mother, who served as an ARC chapter president and ran a summer camp for DD children, knew “he would be safe and happy living there (at Glow House) for the rest of his life.” ECF 258. Linda writes: “Glow House is Bobby’s ideal community placement because Glow House IS Bobby’s community.” Id. Regarding life at Mt. Aloysius. Linda writes: “Many, like Bobby, reach and maintain their highest potential.” Id.
124. Bobby’s mother and father left a large portion of their estate to the Mr. Aloysius Foundation. Their memorial services were held at the Mt. Aloysius chapel and their ashes were scattered on the grounds.
125. In mid-2017, Linda was contacted by Mt. Aloysius to inform her that Bobby had undergone “options counseling” by his guardian, Advocacy & Protective Services, Inc. (APSI), which became Bobby’s guardian in 2009. Mt. Aloysius told Linda that the APSI guardian purportedly asked Bobby if he wanted to move to the community. Bobby purportedly replied, “Yes.” Though Bobby had lived at Mt. Aloysius more than 40 years, APSI requested an “exit” waiver for Bobby without even contacting Linda.
126. Bobby functions intellectually at the level of a small child. Though he can answer simple questions, such as “Do you want vanilla or chocolate,” he cannot manage complex
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decision-making, as he cannot understand the ramifications of his response. Linda explained that if you ask Bobby a question with a smile, he will reply, “Yes,” as he wishes to please.
127. The Ohio Administrative Code states that APSI should consider the input of family members and providers when making placement decisions. Ohio Administrative Code § 5123:115-01(c)(1)(h) (hereinafter “O.A.C.”). Linda was not consulted by APSI about the options counseling, nor was she notified by the APSI guardian that she had requested an exit waiver for Bobby.
128. Upon learning that Bobby had been slated for an exit waiver, Linda left Florida and drove to Ohio to meet with the APSI guardian. The APSI guardian informed her that APSI is contracted by DODD to provide guardianship services. The APSI guardian explained that APSI had been ordered by DODD to meet with each of their wards and offer them an exit waiver to encourage them to move to the community.
129. Linda was disturbed that DODD had APSI approach Bobby about an exit waiver and that it was willing to rely upon his one second response to forever change his life, a life he had lived, and enjoyed, for 50 years at Mt. Aloysius.
130. Linda expressed to the APSI guardian her desire for Bobby to remain at Mt. Aloysius.
131. As Linda was not confident her wishes would be followed, she petitioned the probate court for guardianship of Bobby and was granted guardianship.
Kevin Fox *4 132. Barbara Fox is the mother and guardian of Kevin Fox, a 17-year-old teenager with
4 The individuals with asterisks (*) are some of the individuals who have contacted Guardians since this action was filed, whose stories are briefly shared.
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severe autism, mental retardation, and an intractable seizure disorder. Kevin is non-verbal and functions at approximately the age of a 1 year old toddler.
133. Barbara and Kevin’s father cared for Kevin in their home as a young child. They were recommended to seek waiver services by their attorney. Kevin was enrolled in the Ohio Home Care waiver when he was a toddler to receive home nursing care. Kevin also attended a DD Board preschool.
134. Barbara and Kevin’s father were not informed when they applied for the Ohio Home Care waiver that they were waiving from Kevin’s entitlement to care in an ICF. ICF placement would have provided Kevin with on-site 24 hour nursing and supervision, therapy services, psychological, and nutritional services, and active treatment, among other benefits.
135. As Kevin approached teenage years, it became increasingly difficult for Barbara and Kevin’s father to care for him in his home. He would not remain in bed at night causing worry for his parents as to his safety. Kevin was unaware of hazards, therefore his parents were concerned that he may hurt himself if they should not awaken when he did.
136. Barbara began to search for placement outside of the home on her own. Because of its high reputation, Barbara learned of Hattie Larlham (HL), a large ICF that specializes in the treatment of children with profound needs. Barbara was not aware of the term ICF at the time.
137. Barbara contacted HL to inquire about its services. HL did not accept children who were ambulatory, but told Barbara of another facility that could care for Kevin called Rose-Mary Center (RM), a 42-bed ICF in northeast Ohio.
138. After contacting and visiting RM, Barbara and Kevin’s father placed him on the waiting list for admission to the facility. Kevin was admitted in 2013 (age 12) as the family was becoming increasingly desperate for assistance. Barbara describes the time as looking for “any
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port in the storm.” 139. Kevin benefitted from a medical director, 24-hour nursing care, on-site dental care,
on site nutritionist, and a professional cook that prepares meals. A mobile X-ray unit would come to the facility, which was very important for Kevin whose service seizure disorder placed him at higher risk for broken bones. RM owned an entire fleet of cars, vans and buses, including those adapted for wheelchairs giving Kevin much flexibility for community outings.
140. Barbara saw that Kevin benefitted from many social and recreational aspects of RM’s campus setting. Kevin enjoyed the many volunteer groups that would come to RM to host holiday parties, concerts, crafts, petting zoos, and visits from a therapy dog. RM’s facilities offered recreation in a safe environment, on many acres, and with trained staff. The campus had a heated therapy pool. Swimming became a preferred activity for Kevin as did riding his tricycle through the long, wide halls of his living facility, both activities important to a growing boy. RM also had a large fenced-in playground with a rubberized surface. The fencing was important to a child unaware of hazards who was prone to run-off. The rubberized surface served as protection from head trauma, especially important given Kevin’s serious seizure disorder.
141. In October 2016, Kevin was forced out of RM Center after an agreement was negotiated with DODD in response to a report filed by DRO. As a result, RM agreed to transition residents to new 4 and 6-bed ICFs homes supposedly “integrated” in neighborhoods throughout Cuyahoga County.
142. Though Kevin’s 6-bed ICF home has a more intimate, family-style living environment and includes many amenities such as stainless steel appliances, Barbara is concerned that the 6-bed ICF home is not the most integrated setting appropriate for Kevin’s complex needs.
143. Nursing responsibility has been delegated to a direct care professionals (DSP) who
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administers Kevin’s complex mix of medications. The mobile X-ray unit is no longer available, an important support given Kevin’s susceptibility for broken bones related to seizures. His meals are no longer overseen by a nutritionist and a trained cook, but prepared by DSPs. DSPs must grocery shop, cook, take out trash, shovel and salt the driveway, do laundry, etc., taking them away from more important core duties such as personal care and assistance with Kevin’s active treatment plan.
144. Kevin no longer engages in his preferred activities of swimming and riding a bike. DSPs are not able to take him swimming as they are not trained in water safety. Riding a bike outdoors is too hazardous for a fast-moving teenager with no understanding of hazards. Likewise, the small yard of the 6-bed home is not an appropriate play area for Kevin given the yard’s proximity to moving traffic. There is a small fenced in area, but with concrete flooring, it is not safe for Kevin.
145. Kevin no longer benefits from the social life of a 42 bed home with many and varied professionals and volunteer groups. The small number of residents in a 6-bed home make it impractical for volunteers to host the parties and activities to which Kevin was previously accustomed. Kevin’s neighbors do not visit him, nor invite Kevin to their homes for social gatherings.
146. Kevin’s overall quality of life has suffered relative to his previous life at the large Rose-Mary campus.
Amy Axmacher* 147. Karen and Mark Axmacher are the parents and guardians of Amy Axmacher, a 37 year old woman with profound intellectual and developmental disabilities, who since November 2016 has resided at Brookside Extended Care, a large ICF in Mason, Ohio.
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148. Amy was ambulatory until the age of approximately 16. 149. Until Amy’s admission to Brookside, Karen and Mark cared for Amy in their home. When Amy was 12 years old she began having seizures. That prompted Mark to contact the State of Ohio to apply for waiver services to receive home care and nursing services. But Karen and Mark were turned down for waiver services. 150. Karen and Mark continued to rely upon private insurance to cover Amy’s care needs. Amy also attended special education classes in the Middletown Public Schools. 151. When Amy turned 18, Amy received the Ohio Home Care Waiver and was told to apply for SSI. Amy was given full time nursing care, split between nursing, home health aide hours, and respite hours. 152. Even though Amy had profound intellectual and developmental disabilities, Karen and Mark were never informed that Amy was entitled to ICF services that would have provided facility-based 24 hour nursing care, therapy services, personal care, and the oversight of a medical director, among other supports, for someone with Amy’s complexity of need. 153. Karen states that neither she nor Mark understood the term “ICF.” In a May 26, 2016 email reply Karen wrote to her Medicaid case manager, she specifically asked what the case manager meant by “ICF/MR.” Karen did not receive a response. 154. In 2016, when she was 35, Amy’s neurologist recommended Brookside. Mark toured it and met with staff and was confident Brookside could meet Amy’s care needs. 155. Amy has adapted well to Brookside where she is receiving excellent care and Karen and Mark can visit frequently. Amy also enjoys attending the sheltered workshop. She has a bunch of friends now and is very happy. Karen and Mark lament Amy could have flourished much earlier at Brookside, if only anyone had told them an ICF was an option.
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156. For Amy, a so-called community (i.e., waiver) setting would be the most restrictive setting for her – as her quality of life would deteriorate – while an ICF is the least restrictive environment.
157. A large ICF is Mark and Karen’s choice for Amy. Samantha Miller* 158. Linda Jeanne Marker-Miller is the mother and guardian of Samantha Erin Miller, a 25 year old woman with Rett’s Syndrome. Samantha is profoundly mentally retarded and has a seizure disorder. Samantha’s story reflects that many of the tens of thousands receiving waiver services in Ohio have no idea of their ICF option. 159. Linda and her husband have cared for Samantha in their home throughout Samantha’s life. Since the age of 4, Samantha has received services through the Hamilton County DD Board. Services included early intervention, school services and ESY (extended school year) at the Margaret Rost School, a DD Board School. Samantha graduated from Margaret Rost in May 2015. 160. When Samantha was 10, it was discovered that the DD Board had failed to place her on the waiting list when the family first sought services. Upon being placed on the waiting list, the DD Board did not provide Linda with any information about alternative services. Linda was not informed at this time about the immediate availability of ICF services as an alternative to waiver services. 161. In 2014, Linda began researching day habilitation options for Samantha in anticipation of her graduation from the DD Board school. Linda learned that because of DRO’s activities, the local sheltered workshop and facility-based day programs were threatened. Without the DD Board programs and without a waiver, Linda was unable to find a day program that would
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accept Samantha. 162. Linda began meeting monthly with a DD Board Service Support Administrator
(SSA). The SSA suggested alternatives to Linda that were not acceptable, referring her to grant opportunities for home modifications or assistive technology. An ICF was not discussed as an alternative.
163. Linda related to yet another DD Board official that she was so desperate she was considering yielding custody of her daughter to the state. The SSA told Linda that she did not want to do that because if the state took custody of Samantha, she might be placed out of state.
164. At wits-end, Linda also wrote letters to Governor Kasich, her three County Commissioners, and the ARC of Ohio appealing for assistance.
165. Gary Tonks of the ARC of Ohio called Linda. He told Linda that she was not alone and that ARC and others were working hard to fix the system. He told Linda about public meetings held by DRO. Tonks told her many things, but he did not tell Linda about ICF services during the phone call.
166. Linda received a response from one of the County Commissioners who offered his assistance. The Commissioner reached out to the DD Board on Linda’s behalf. Through the Commissioner’s assistance, Samantha received DD Board funding for placement in a day habilitation program, the Frank Center. This placement allowed Linda to retain her job. This program has since been privatized and is called Active Day Frank Center.
167. Since that time, Samantha received the SELF waiver in 2015 and the IO waiver in 2017. All along Linda was never informed of Samantha’s entitlement to an ICF when Samantha was enrolled in various waivers. Linda was not informed of the ICF entitlement at any of the yearly ISP meetings she attended when Samantha’s waivers were renewed.
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168. Linda only learned about the ICF entitlement from Caroline Lahrmann on September 9, 2018. Linda wishes she had known about the ICF option all along, as she – like all guardians – wants options for her DD child. She would have liked to tour an ICF facility to understand what it provides. Doing so would have helped in their long-term planning for Samantha.
Sean Dickinson* 169. Tracy and Mark Dickinson are the parents and guardians of Sean Dickinson, a 20 year old social young man with multiple disabilities including autism, developmental delay, and epilepsy. Sean requires supports for daily living, working, and safety. Sean has a younger sister Megan who is 18. The family lives together in their home in Pepper Pike, Ohio. 170. Sean is a student of the Orange Public School System where he attends a vocational training program and through it works at Goodwill Industries. 171. Tracy and Mark are grateful for the beneficial services they have received through their school system. 172. The Dickinsons moved to Ohio from Wisconsin in 2006, at which time they contacted the Cuyahoga County Board of DD to inquire about services for Sean. Through bureaucratic delay, Sean was not placed on the waiver waiting list for Cuyahoga County until 2008 after intervention and advocacy from Tracy. Sean remains on the waiting list and currently does not receive services from the DD Board. 173. When Tracy asked the DD Board representative what services were available, she was told, "we do not have a menu. You need to tell us what you want." Tracy has contacted the DD Board approximately three times per year over the past four years inquiring about services, but was never told about the ICF choice. She was not aware of what an ICF was until the filing of
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this statement. 174. Tracy indicates that the lack of discussion with respect to options makes it
impossible for Mark and her to plan for life after Sean reaches the age of 22 and graduates from school. Tracy does not know what her options are, which takes away the ability of her family to plan for Sean.
B. The State Defendants John Kasich, Governor of the State of Ohio 175. Defendant John Kasich is the Governor of the State of Ohio, a position he has held since January 2011. 176. Under Article III, Section 6 of the Ohio Constitution, he is charged with seeing that the laws of the State of Ohio are faithfully executed. 177. Defendant Kasich appoints the directors of the Ohio Department of Developmental Disabilities (“DODD”), the Ohio Department of Medicaid (“ODM”), and Opportunities for Ohioans with Disabilities (“OOD”) in accordance with Article III, Section 21 of the Ohio Constitution. He is responsible for directing, supervising, controlling, and setting policy for the executive departments of state government. 178. Defendant Kasich is responsible for developing and submitting an executive budget to the legislature each fiscal biennium, and for approving a final budget and budget modifications that include funding for DODD, ODM, and OOD. 179. Defendant Kasich is responsible for the Governor’s Office of Health Transformation, which he created through Executive Order 2011-02K “in order to carry out the immediate need to address Medicaid spending issues, plan for the long-term efficient administration of Ohio’s Medicaid program, and act to improve overall health system performance
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in Ohio.” Since its creation, the Governor’s Office for Health Transformation has coordinated and implemented planning and budget activities for the State of Ohio’s compliance with the U.S. Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 581 (1999). Defendant Kasich has authority to issue proclamations and executive orders regarding disability services for people with intellectual and developmental disabilities and has issued such executive orders. He is responsible for ensuring that state agencies fully implement his policies concerning services for people with intellectual and developmental disabilities.
180. The Guardians bring these claims against Defendant Kasich in his official capacity. John Martin, Director of the Ohio Department of Developmental Disabilities 181. Defendant John Martin is the Director and executive head of DODD. He was first appointed Director in January 2007 (of the Ohio Department of Mental Retardation and Developmental Disabilities, which was renamed DODD in 2009), and was reappointed by Governor Kasich in January 2011. 182. DODD is legally responsible for the operation of Ohio’s statewide comprehensive programs and services for people with intellectual and developmental disabilities and their families, including public education, prevention, diagnosis, treatment, training, and care, pursuant to O.R.C. § 5123.02. 183. Defendant Martin has oversight and control over all of DODD’s programs and operations. Through interagency agreements with the ODM, Defendant Martin also exercises certain powers and duties with regard to the administration, licensing, and operations of privatelyoperated ICFs in Ohio. Defendant Martin is required to “provide monitoring of county boards of developmental disabilities.” O.R.C. § 5123.04(F). 184. Defendant Martin is responsible for the administration of Ohio’s four Medicaid
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funded home and community-based waiver programs for people with intellectual and developmental disabilities.
185. Defendant Martin’s duties include, but are not limited to, entering into contracts and other agreements on behalf of DODD, monitoring county boards of developmental disabilities, and adopting, amending, or rescinding agency rules, including rules for administration and licensing of ICFs in Ohio and those which regulate the certification of home and community-based services waiver providers.
186. Defendant Martin has responsibility for ensuring that DODD’s programs and services operate in compliance with federal law.
187. The Guardians bring these claims against Defendant Martin in his official capacity. Barbara Sears, Director of the Ohio Department of Medicaid 188. Defendant Barbara Sears is the Director and executive head of the Ohio Department of Medicaid (ODM), a position she has held since being appointed by Governor Kasich in November 2016. 189. ODM is Ohio’s single state Medicaid agency, responsible under 42 U.S.C. § 1396a(a)(5) and O.R.C. §5162.03 for the administration of Ohio’s Medicaid program. Under this program, the federal government partially reimburses states for the costs of medical and other services provided to eligible persons, including long term services and supports to people with intellectual and developmental disabilities. 190. Defendant Sears has ultimate responsibility, authority, oversight, and control over all ODM programs, services and operations. ODM has delegated responsibilities for administration of Ohio’s Medicaid waivers programs for people with intellectual and developmental disabilities to DODD. ODM has also delegated to DODD its powers and duties
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regarding Medicaid-funded ICF services, including licensure, level of care determinations for admissions to Medicaid-funded ICFs, and adopting, amending, or rescinding administrative rules regulating the operation of ICFs. ODM also delegates to local DD Boards the determination of eligibility for waiver services.
191. Defendant Sears is directly responsible for the design and structure of the Medicaid program in Ohio and for ensuring that the programs administered by ODM are operated and administered in compliance with federal law.
192. The Guardians bring these claims against Defendant Sears in her official capacity. C. Ohio Association of County Boards Serving People with Developmental Disabilities
193. The Ohio Association of County Boards Serving People with Developmental Disabilities (“OCB”) appears in this case “on behalf of itself and all 88 county boards of developmental disabilities in the State of Ohio.” OCB Motion to Intervene at 1 (ECF No. 68).
194. All DD Boards are members of OCB, and as OCB stated in its motion, “Members of OCB[] would have standing to act as parties in their own right.” Id. at 10.
195. In its motion, OCB stated:  “The DD Boards play an integral and legally mandated role in the implementation and monitoring of community services in Ohio.” Id. at 1.  “OCB[] represents the interests of its membership, which consists of all 88 County Boards of Developmental Disabilities (“DD Boards”) in Ohio.” Id.  Its mission is: “To support County Boards of Developmental Disabilities in providing services and supports to people with developmental disabilities.” Id.  Its “purposes” include “to work for the interests of people with developmental disabilities in the State of Ohio.” Id at 2.
196. DD Boards are political subdivisions governed by O.R.C. Chapter 5126. 197. DD Boards claim to serve approximately 90,000 Ohioans with DD.
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198. DD Boards are required to “plan and set priorities based on available resources for

the provision of facilities, programs, and other services to meet the needs of county residents who

are individuals with developmental disabilities.” O.R.C. § 5126.04(A).

199. DD Boards are required to “assess the facility and service needs of the individuals

with developmental disabilities who are residents of the county.” Id.

200. In performing their duties, DD Boards are required to develop “individual

habilitation or service plans for individuals with developmental disabilities who are being served

or who have been determined eligible for services and are awaiting the provision of services.” Id.

201. DODD “may adopt rules . . . as necessary to implement this section.” O.R.C. §

5126.04 (C). DODD is required to adopt rules “for all programs services offered by a county board

of developmental disabilities,” which rules shall include:

 Standards to be followed by a board in administering, providing, arranging, or operating programs and services;

 Standards for determining the nature and degree of developmental disability; and

 O.R.C. § 5126.08.

Standards and procedures for making eligibility determinations for the programs and services

202. “The responsibility or authority of a county board to provide services under this

chapter does not affect the responsibility of any other entity of state or local government to provide

services to individuals with developmental disabilities.” O.R.C. § 5126.04 (D).

203. O.R.C. §5126.05(A) states in relevant part that each DD Board has the duty to: “(1)

Administer and operate facilities, programs, and services as provided by this chapter … (2)

Coordinate, monitor, and evaluate existing services and facilities available to individuals with

developmental disabilities … (8) Provide service and support administration in accordance with

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section 5126.15 of the Revised Code . . . .” 204. Under O.R.C. §5126.051, a DD Board has a duty to provide residential services
and adult services to the extent that resources are available and in accordance with an individual’s service plan. O.R.C. §5126.051(A), (B).
205. Even so, as detailed in its Motion to Intervene, OCB – and DD Boards – views and performs its role for DD individuals as limited to the administration and provision of waiver (not ICF) services.
206. As stated in its motion, DD Boards’ role as relates to ICF residents is to counsel them to make sure they understand their waiver alternatives: “An ICF serving nine or more residents must give prior notice to the local DD Board if the ICF seeks to admit a new resident.” ECF No. 68) Then, “the DD Board must evaluate the individual and counsel the individual about the nature, extent, and timing of the services that the individual needs and the least restrictive environment in which the individual could receive the needed services.” Id.
207. Through “exit” and “diversion” waivers, DD Boards also counsel (existing and prospective) ICF residents, meaning apprise them of their waiver option and enroll them in same, which is not subject to a waiting list. In such cases: “The DD Board must make the waiver available regardless of the resident’s place on the waiting list established under O.R.C. §5126.042.” Id. at 5.
208. “Ohio law gives DD Boards specific authority to manage HCBS waivers in the county,” including to “[p]erform assessments and evaluations of the individual,” and to “[a]ssist eligible individuals to exercise the individual’s right to choose a qualified and willing provider of services.” Id.
209. DD Boards – not the State – pay the roughly 40% share of the local match for
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waiver services, except for ICF residents enrolling in waiver services through exit or diversion waivers, or through ICF downsizings (together “ICF Waiver Enrollees”), in which instances the state (not DD Board) pays the local share. Id. at 6-7.
210. As such, when it comes to the provision of waiver services, DD Boards have a financial incentive to enroll individuals as ICF Waiver Enrollees because the State, not the DD Boards, then pays the local share of the waiver cost. In contrast, when someone enrolls in the waiver as a non-ICF Waiver Enrollee (i.e., off the traditional “waiting list”), then the DD Board is responsible for the roughly 40% share of the local match.
211. In 2015, DD Boards paid $324 million of the local match obligations – 64.2% of the total local portion – with DODD paying the remaining portion. Id. at 7.
212. Local DD Boards are responsible for managing waiting lists for persons seeking HCBS waivers. Id.
213. DD Boards are the effective gatekeepers for DD individuals seeking services in the DD system in Ohio, meaning DD Boards normally: (a) determine and process eligibility for Medicaid services, (b) once a DD individual is determined eligible for Medicaid services, counsel the individual (or guardian) about available service options, (c) maintain “waiting lists” for those seeking waiver services, and (d) administer and process waiver selections, and once the individual receives waiver services, then at least annually thereafter review the person’s Individual Service Plan (“ISP”).
214. By definition, any resident eligible for waiver services is necessarily also eligible for ICF services.
215. But DD Boards do not routinely provide information about ICF services to eligible individuals.
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216. Few, if any, of the 88 DD Boards provide information about ICF services on their websites (other than on how to leave an ICF or be diverted from an ICF).
217. OCB publishes a detailed guide called “Life Map,” which is a guide for DD services from birth through retirement.” http://www.oacbdd.org/clientuploads/publications/OACBLifeMap-ThirdEdition.pdf (visited Sept. 7, 2018).
218. Though the Life Map references nursing homes, it makes no reference to ICFs. 219. When DD Boards annually send wait-listed individuals letters regarding their status on the waiver wait list, they do not mention that the recipient has the right – the entitlement – to an immediate ICF placement, let alone provide information on the ICF entitlement. 220. If DD Boards are supposed to provide ICF information to eligible residents, they are not doing so. 221. Alternatively, if DD Boards assert that it is not their duty to provide ICF information to eligible residents – despite being the main interface for eligible residents to receive information about DD services – then the vast majority of such eligible residents fail to receive information about their ICF entitlement from any source (i.e., DODD, OCB, ODM, or DRO). That is, the vast majority of DD Medicaid eligible residents receive information about DD services only from, or principally from, their DD Boards, but their DD Boards do not provide them information about ICF services, leaving the vast majority of eligible residents ignorant of their ICF entitlement.
IV. STATUTORY PROVISIONS A. The Americans with Disabilities Act (“ADA”) 222. The ADA was enacted in 1990. 42 U.S.C. § 12101(b)(1). 223. Title II of the ADA applies to public entities, including state or local governments and any departments, agencies, or other instrumentalities of state or local governments. 42 U.S.C.
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§§ 12131, 12132. It provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.
224. “Public entity” incudes “any state or local government” and “any department, agency . . . or other instrumentality of a State or . . . local government.” Id. at § 12131(1).
225. The remedies and rights under the ADA are “provide[d] to any person alleging discrimination on the basis of disability.” Id. at § 12133.
226. The ADA also provides that a “State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter.” Id. at § 12202. The ADA also includes “the power to enforce the fourteenth amendment.” Id. at § 12201(b)(4).
227. The U.S. Department of Justice (“DOJ”) has authority under 42 U.S.C. § 12134 to issue federal regulations implementing and enforcing Title II of the ADA.
228. Title II’s implementing regulations:  prohibit a public entity from “[d]eny[ing] a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service” or “limit[ing] a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.” 28 C.F.R. § 35.130(b)(1)(i), (vii);  state a public entity “shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability.” Id. at § 35.130(b)(7)(i); and  state a public entity “shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” Id. at § 35.130(d).
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B. Section 504 of the Rehabilitation Act of 1973 (“Rehabilitation Act”) 229. The Rehabilitation Act prohibits discrimination against people with disabilities under any program or activity that receives federal financial assistance. 29 U.S.C. § 794(a) (“No otherwise qualified individual with a disability in the United States . . . shall . . . be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance”). 230. “Program or activity” is defined broadly under the Rehabilitation Act to include: “a department, agency, . . . or other instrumentality of a State or of a local government or the entity of such State or local government that distributes such assistance and each such department or agency to which the assistance is extended.” Id. at § 794(b). 231. The Rehabilitation Act’s implementing regulations prohibit recipients of federal financial assistance from “deny[ing] a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or service” or providing “an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result . . . or to reach the same level of achievement as that provided to others.” 45 C.F.R. § 41.51(b)(1)(i), (iii). 232. These implementing regulations also require entities receiving federal financial assistance to “administer programs and activities in the most integrated setting appropriate to the needs of qualified . . . persons [with disabilities].” 28 C.F.R. § 41.51(d); see also, 45 C.F.R. § 84.4(b)(2). 233. States have no immunity against claims brought under the Rehabilitation Act. 42 U.S.C. § 2000d-7 (1986) (“A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973.”).
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C. The Social Security Act 234. The State of Ohio is required to operate its Medicaid program in compliance with the Social Security Act, 42 U.S.C. § 1396, and its implementing regulations. 235. Section 1915(c) of the Social Security Act, 42 U.S.C. § 1396n(c), allows states to submit a request to the U.S. Secretary of Health and Human Services (“Secretary”) to “waive” certain federal Medicaid requirements in order to offer a broad range of home and communitybased services as an alternative to institutional care. 236. The entire waiver statutory and regulatory scheme requires and presupposes that Medicaid eligible individuals will be advised of their ICF entitlement before being advised of any alternative, optional waiver services. 237. Specifically, federal law requires that for a state to offer waiver services, it must first: (a) provide “assurance” that “[a]n evaluation of the need for the level of care provided in an . . . ICF” is conducted, (b) determine “that the beneficiary, but for the provision of waiver services, would otherwise be institutionalized in such a facility,” and (c) provide “assurance” that beneficiaries “will be informed of any feasible alternatives under the waiver, and [g]iven the choice of either institutional or home and community-based services.” 42 C.F.R. § 441.302(c), (d). 238. Plaintiffs cite and acknowledge these requirements in their Complaint at ¶¶ 128-30. 239. The Social Security Act requires states to provide the ICF entitlement to Medicaid eligible residents with “reasonable promptness.” 42 U.S.C. § 1396(a)(8). D. Developmental Disabilities Assistance & Bill of Rights Act of 2000 (“DD Act”) 240. The DD Act “provide[s] for allotments to support a protection and advocacy system in each State to protect the legal and human rights of individuals with developmental disabilities.” 42 U.S.C. § 15041.
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241. Congress allocates funds for each state to administer its “protection and advocacy” system (“P&A”). Id. at § 15042.
242. Amongst other things, each state’s P&A is required to:  “ensure the protection of, and advocacy for, the rights of [DD] individuals . . . who are or who may be eligible for treatment, services, or habilitation.” Id. at § 15043(a)(2)(A)(i).  “provide information on and referral to programs and services addressing the needs of individuals with developmental disabilities.” Id. at (ii).  annually submit to HHS a list of “goals and priorities developed through data driven strategic planning.” Id. at (a)(2)(C).  annually allow the public and individuals with DD an opportunity to comment on the P&A’s goals and priorities. Id. at (a)(2)(D).  “establish a grievance procedure for clients or prospective clients of the system to ensure that individuals with developmental disabilities have full access to services of the system.” Id. at (a)(2)(E).
Collectively the “P&A Duties” 243. In performing its P&A Duties, a P&A must “address[] the needs of [all] individuals
with developmental disabilities,” not just a subset, or favored portion, of individuals with developmental disabilities. Id.
244. The DD Act also requires that a P&A have a governing board “composed of members who broadly represent . . . the needs of individuals served by the system” Id. at § 15044(a). The majority of its members “shall” be “individuals with disabilities (or their guardians) . . . who are eligible for services . . . through the system.” Id.
245. The implementing regulations of the DD Act specify that a P&A “shall not implement a policy or practice restricting the remedies which may be sought on the behalf of individuals with developmental disabilities or compromising the authority of the Protection and Advocacy System (P&A) to pursue such remedies through litigation, legal action or other forms
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of advocacy.” 45 C.F.R. § 1386.21(c). 246. A P&A must, at least annually, “[o]btain formal public input on its Statement of
Objectives and Priorities” and then “[i]ncorporate or address any comments received through public input.” 45 C.F.R. § 1386.21(d)(1), (4).
247. The Ohio statute that implements the DD Act – O.R.C. § 5123.60 – requires the State’s P&A (DRO) to provide “[a]dvocacy services for people with disabilities,” not just certain disabled people. Id. at (B)(1).
248. Finally, when it comes to making decisions about care, the DD Act states that individuals and their guardians “are the primary decision-makers . . . regarding choosing where the individuals live from available options.” 42 U.S.C. 15001(c)(3)(2000) (“Individuals with developmental disabilities and their families are the primary decision-makers regarding the services and supports such individuals and their families receive, including regarding choosing where the individuals live from available options and play decision-making roles in policies and programs that affect the lives of such individuals and their families.”).
V. FACTS COMMON TO ALL CLAIMS A. Medicaid Background & ICF Requirements 249. The federal Medicaid program was established in 1965. 250. Once a state chooses to participate in the federal Medicaid program, its provision of services is mandatory, and it must comply with federal Medicaid law. 42 U.S.C. § 1396a(a)(1). 251. Ohio, like all states, has chosen to participate in the Medicaid program, and it includes as a program requirement the provision of ICF services to Medicaid eligible individuals with intellectual disabilities. 42 C.F.R. 440.150(a). 252. Ohio administers its services for Medicaid eligible DD residents through DODD.
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253. In contrast to the ICF entitlement, “waiver” services – including provision of services in smaller so-called HCBS “community” settings – are entirely optional, meaning states need not provide waiver services to eligible Medicaid DD recipients. 42 U.S.C. 1396n(c).
254. To receive a “waiver,” an individual must first be determined eligible for and require “the level of care in a hospital, nursing facility or intermediate care facility for the mentally retarded.” 42 U.S.C. § 1396n(c)(2)(C). If an individual is not eligible for ICF level of care, she is not eligible for a “waiver.”
255. DODD administers three home and community based waivers: (1) Individual Options (“IO”) waiver; (2) Level One (L1), and Self-Empowerment Life Funding (SELF). http://dodd.ohio.gov/IndividualFamilies/ServiceFunding/Documents/IO%20Approval%20and%2 0Amendment.pdf at 7 (visited Sept. 7, 2018). The IO waiver is the costliest because it provides the most benefits. https://doddportal.dodd.ohio.gov/Documents/summary-individualoption.pdf (visited Sept. 7, 2018).
256. Under Ohio’s current five year Medicaid “State Plan” approved by CMS, the total number of IO waivers is capped at between 19,000 (year 1) and 25,000 (year 5). http://dodd.ohio.gov/IndividualFamilies/ServiceFunding/Documents/IO%20Approval%20and%2 0Amendment.pdf (visited Sept. 7, 2018).
257. As described in the State’s waiver application: “The organizational structure for this waiver includes the Ohio Department of Medicaid (ODM) as the Single State Medicaid Agency, the Ohio Department of Developmental Disabilities (DODD) as the administrator of the waiver, and DD Boards of Developmental Disabilities (County Boards of DD) as the local operating entity. The two state departments operate in accordance with an interagency agreement.” Id. at p. 3.
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258. “Waivers” first became available in 1981 when Congress amended the relevant

section of the Social Security Act to allow states to provide “waivers,” thereby allowing states to

offer Medicaid eligible DD individuals services outside the ICF setting. No state is required to

offer “waiver” services; instead, “waiver” services – the provision of which must be approved by

CMS – are an optional alternative to “institutional services” (i.e., ICF) that a state may, but is not

required to, provide.

259. Before 1981, there were no waiver services, and 100% of Medicaid DD recipients

receiving residential services received ICF services or non-Medicaid certified institutional care.

260. Yet today – in 2018 – more than 40,000 Medicaid eligible Ohioans receive waiver

services while fewer than 5600 individuals receive ICF services. See DODD “Greenbook” at 7-8

(August

2017)

https://www.lsc.ohio.gov/documents/budget/132/MainOperating/greenbook/DDD.PDF (visited

Sept. 14, 2018).

261. Thus, in less than 40 years, Ohio has shifted from having 100% of its DD Medicaid

eligible residents who receive residential services served in ICF settings to less than 15% who

receive services today in ICF settings.

262. Despite this rebalancing, Plaintiffs claim Defendants have a “continued

overreliance on large ICFs,” which Plaintiffs define and disparage as “institutions” that

“segregate” and isolate residents “from their families, friends, and communities.” Complaint at ¶¶

5, 9.5

263. ICFs are not “institutions” that “warehouse” and “segregate” and “isolate.” Id.

5 In their Complaint, Plaintiffs use variants of the words “institution,” “segregation,” “integrated,” and “community” more than 300 times.
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264. ICFs are homes. ICFs are communities. 265. ICFs provide a level of service – including on-site nursing, therapy rooms and pools, nutritional services, and developmental training – that residential waiver services almost universally lack. 266. On average, there is no cost savings to move an ICF resident to a residential waiver setting. 267. If the Guardians’ loved ones who now reside in ICFs were to move to residential waiver settings, it would either: (a) be impossible to maintain the breadth of services they now receive in their ICFs, or (b) if possible to maintain the breadth of services they now receive in their ICFs, it would cost more to provide such services. 268. The ICF choice – an “entitlement” – is what each Guardian wants and requests for their loved one(s). 269. Yet in Ohio, those eligible for ICF services are routinely not informed of their ICF entitlement. Defendants often refrain from formally determining a person’s eligibility for services until the person has been selected for a “waiver,” at which time the state or DD Board first “informs” the person of the ICF entitlement as part of a paperwork formality. In effect, Defendants shield the ICF entitlement from Medicaid eligible participants while promoting and offering the optional “waiver” benefit. As a result, Medicaid eligible residents often sit on waiver waiting lists for years, ignorant of their ICF entitlement. 270. Medicaid law requires that eligible individuals be “informed of the feasible alternatives if available under the waiver.” 42 U.S.C. § 1396n(c)(2)(C). As such, Medicaid law presupposes that all eligible individuals will have been informed of their ICF entitlement before being informed of their (optional) waiver. But in Ohio, this premise – that Medicaid eligible
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individuals are first informed of their ICF entitlement – is false. Because of the State’s laws, rules,

policies, and practices, Medicaid eligible DD individuals are routinely denied information about

their ICF entitlement.

B. ICFs Under Attack

271. Since at least 2011, the Defendants have acted in concert to limit, and eliminate,

the ICF entitlement in Ohio.

272. Governor Kasich took office on January 10, 2011.

273. Three days later, on January 13, 2011, he created The Office of Health

Transformation (“OHT”) “in order to carry out the immediate need to address Medicaid spending

issues.” Executive Order 2011-02K. The Executive Order stated that “Medicaid spending is

growing at an unsustainable rate . . . and now consumes 30 percent of total state spending.” Id. 274. Next, still in 2011, pursuant to H.B. 153 of the 129th General Assembly, DODD

took control of administering the ICF program from ODM.

275. Upon doing so, DODD immediately sought to “rebalance” the DD system in Ohio

by de-emphasizing, phasing out, and defunding the ICF entitlement. Specifically, in 2012, DODD

issued a “white paper” entitled, “The Future of the ICF-IID Program: Values, Vision, Rebalancing

&

Funding”

(the

“White

Paper”).

http://dodd.ohio.gov/Medicaid/Documents/ICF%20White%20Paper.pdf. In the White Paper,

DODD stated:

 “The department is committed to rebalancing in the state of Ohio, through both the downsizing of large facilities and the conversion of ICF-IID funded beds (and smaller homes) to home and community based waiver services.” Id.at 1.
 “It is the department’s view that those individuals currently being assessed as ‘Typical Adaptive’ may not require the bundle of services provided by the ICF-IID program. The department also believes that a portion of the individuals with IAF results in the ‘High Adaptive Needs and/or Chronic

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Case: 2:16-cv-00282-EAS-EPD Doc #: 326 Filed: 09/14/18 Page: 48 of 85 PAGEID #: 5468
Behaviors’ RAC could also be served in community settings.” Id. at 3.  “The department envisions DD Boards of dd taking a more active role in
this process.” Id.  “One of the Governor’s policy priorities is to rebalance long-term care. This
effort includes shifting resources from facility based services to home and community based services.” Id. at 4.  “Conversion of ICF-IID beds to waiver funding will assist with providing services to individuals in the most integrated and least restrictive setting possible.” Id. at 5.  “In addition to converting ICF-IID beds to waiver services, there is a desire to reduce the number of ICF-IID beds located in a single dwelling.” Id. at 6.  “We strongly encourage providers and boards to keep this in mind as part of their strategic planning efforts and understand that the department will be hesitant to approve long-term investments in capital for large settings, as this is not the department’s vision for where individuals will be served in the future.” Id.
276. After issuing its White Paper, DODD, through the passage of new legislation and
its adoption of new rules, did indeed “rebalance” the system and “shift resources from [ICFs] to
home and community based services.” Id.
2013: The “Grand Bargain”
277. In 2013 – with the support of DODD, OCB, DRO, and numerous industry groups
working together – the state passed the so-called “Grand Bargain” as part of the biennial budget
bill (HB 59). O.R.C. Chapters 5123, 5124, 5126, 5164, 5166, 5168.
278. Some of the measures the Grand Bargain enacted include:
 Required DODD “to strive to achieve, not later than July 1, 2018, statewide reduction” of at least 500 ICF/IID beds.”
 Authorized DODD to establish an “Employment First Task Force.”  Required each DD Board to implement an employment first policy that
clearly identifies community employment as the desired outcome for every individual of working age who receives services from the board.  For large ICFs (those with more than 8 beds): (i) cut in half the efficiency incentive payments they receive; (ii) eliminated certain renovation payments they previously received; and (iii) eliminated return on equity payments to all ICFs.  Changed ICF rate reimbursement formulas to generally decrease rates paid to ICFs.
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 Required DODD to “collaborate” with OCB, the Ohio Provider Resource Association (“OPRA”), and other organizations to achieve the ICF bed reductions by, amongst other things: (i) encouraging ICFs to reduce the number of their beds; (ii) creating incentives for the reductions; (iii) developing a mechanism to compensate ICF providers who convert their beds to waiver beds.
 Appropriated 600 new waivers to de-convert ICF beds to waiver beds.  Created economic incentives for ICF providers to convert ICF beds to
waiver beds.  Maintained the “franchise permit fee” ICF providers must pay DODD for
each ICF bed at approximately $18/day/bed.
279. Shortly thereafter, in summer 2013, DODD’s Director, John Martin, summarized
the Grand Bargain in DODD’s Pipeline Quarterly publication:
To expand and improve residential options for Ohioans with developmental disabilities, the 'Grand Bargain,' (part of HB59, 'the budget bill') includes a commitment by stakeholders to convert up to 600 ICF beds to waivers, and to downsize up to 600 large ICF beds to settings no larger than eight-bed homes. Much of the work to accomplish the goal will require new approaches and partnerships to accelerate this desired trend.
http://dodd.ohio.gov/Pipeline/Documents/Pipeline%20Quarterly,%20Summer%202013,%20FIN AL.pdf (visited Sept. 7, 2018).
2014: DRO Threatens Litigation
280. Despite the mandate to eliminate ICF beds and reduce ICF reimbursements, the
Grand Bargain was not grand enough for DRO. So on July 1, 2014, DRO wrote a letter to
Governor Kasich, Director Martin, ODM’s (then) Director McCarthy, and OHT’s director, which
began: “We write on behalf of thousands of individuals with intellectual and developmental
disabilities in Ohio who are needlessly segregated in private intermediate care facilities for
individuals with intellectual disabilities (ICFs/IID) or state-operated developmental centers.”
http://files.ctctcdn.com/141902ea301/348c248b-9c0f-4785-9902-c95cfd0d566a.pdf (visited Sept.
7, 2018).
281. In its letter, DRO stated: “We recognize that the State has publicly committed to
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shifting some aspects of its service delivery system for people with developmental disabilities toward more community integration. But the State's actions are inadequate and, in key respects, the recent actions by the State further entrench the segregation that is endemic to the Ohio developmental disabilities system.” Id. at 3.
282. In its letter, DRO threatened to “resort to litigation” if the State did not “take immediate action to significantly reduce the number of persons residing in developmental centers and ICFs/IID, with a transition to small, integrated, community-based, non-ICF/IID placements.” Id. at 5-6. DRO then proposed the State “initiate” 12 “remedial actions,” including to: (i) “decrease the number of persons in developmental centers, ICFs/IID sheltered workshops, and facility-based day services”; (ii) “[d]evelop a diversion program to ensure that future admissions to private ICFs/IID and developmental centers occur only in exigent circumstances (an emergency or crisis, for example), that admissions be short-term only, and that discharge planning occur immediately upon admission”; and (iii) “[d]evelop an outreach, in-reach, and education program that explains the benefits of home and community-based residential services, supported employment, and community-based day services . . . [which] must encourage individuals in developmental centers and ICFs/IID to seek integrated placements and services.” Id. at 6-8.
283. DRO ended its letter requesting a meeting with DODD, ODM and OHT. Id. at 8. 284. On July 31, 2014, Director Martin responded to DRO’s letter writing, “while we do not agree with many of your findings and conclusions, it is true that we share a similar vision for supporting individuals with disabilities.” Director Martin also agreed to meet with DRO. 285. On August 1, 2014, DRO responded to Director Martin by writing, “the state’s current initiatives will not be enough to forestall legal action. Significant, measurable improvements to the system that reflect the recommendations in our initial letter must occur in a
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timely fashion.” 2015: DRO’s Threats Work – HB 64 Passed Further Limiting the ICF Entitlement 286. DRO’s threats worked. Over the next eight months, the parties – DRO, DODD,
OCB, ODM, and various industry associations – met several times and engaged in on-going dialogue over the 2016 biennium budget.
287. On March 26, 2015, DRO wrote Director Martin stating “the proposed initiatives contained in the FY 2016-17 Executive Budget represent an important first step towards enabling people with developmental disabilities to access opportunities to live, work, and spend their days in integrated settings in their communities. Nevertheless, much work remains to create a system that complies with the Americans with Disabilities Act and the Supreme Court's decision in Olmstead v. L.C., 527 U.S. 581 (1999).”
288. Although the proposed budget – culminating in the passage of HB 64 – would further increase waivers and limit ICFs, DRO nonetheless wrote: “Without the complete package of reforms laid out in the proposed budget, there would be no foundation for a future agreement and no alternative for class members but to pursue their claims in court.” Id. The letter then listed “key items” DRO demanded be included in the budget bill, including:
 “A financial commitment to continue expansion of community-based services, including new state-funded waiver slots, to ensure individuals in ICFs or at risk of institutionalization can be served through integrated services in the community. The state must cement adequate state-funded home and community-based waiver services as a model for the future.”
 “Systemic strategies to divert individuals from unnecessary ICF admissions and reduce reliance on institutional levels of care.”
 “A comprehensive outreach and education effort for individuals and families who are currently utilizing the ICF service model so that they fully understand the benefits and opportunities of integrated community options.”
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289. A week later, on April 3, 2015, Directors Martin (DODD) and Gargan (OCB), along
with the leaders of three industry associations – Ohio Health Care Association, Ohio Provider
Resource Association, and Values and Faith Alliance – wrote a letter to Chairmen Ryan Smith and
Scott Oelslager of the Ohio legislature stating:
We write to convey that agreement, among the undersigned, has been reached regarding amendments to House Bill 64 that will modernize Ohio’s Intermediate Care Facility (ICF) program. The proposed amendments will encourage both the conversion of ICF beds to waivers, and downsize large ICFs (nine or more beds) to smaller community-based ICF homes – this will build on the “Grand Bargain” reached in the last operating budget, House Bill 59. . . . We look forward to meeting with you in the near future to discuss this agreement and the changes made to the As Introduced version of House Bill 64.
290. In June 2015, Governor Kasich signed HB 64, enacting it into law. As relates to
Ohio’s DD system, HB 64 (O.R.C. Chapters 5123-24):
 provided a 6% waiver rate increase for direct support staff;  provided funding for an additional 3,000 waiver slots (2,000 IO waivers and
1,000 SELF waivers);  added nursing to waiver services;  increased funding for APSI, the state guardian who serves DD individuals
lacking guardians;  mandated “pre-admission counseling” for those selecting ICF placement to
be performed by DD Boards;  required DODD to provide intensive “outreach” services and “options
counseling” for existing ICF residents, which DODD contracted to a thirdparty provider to perform called CareStar;  created and funded an additional 1100 waivers to divert individuals who have selected ICF services (“diversion waivers”) and to facilitate the transfer of existing ICF residents to waiver services (“exit waivers”);  required that by 2025, ICFs have no more than two residents per bedroom;  required that ICF providers, when downsizing and building smaller (six bed or less) ICFs, such facilities not be adjacent to any existing ICFs;  instituted a “flat rate” methodology for certain ICF residents, resulting in ICF providers receiving less funding, on average, for such residents than previously received;  requires ICF residents (and guardians) to receive a pamphlet annually informing them of community options;  limits new ICFs in size to no more than six beds, except DODD may approve eight beds if required for provider to be “financially viable”;  authorizes and provides funding for DODD to buy back ICF beds, thereby
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forever eliminating the ICF bed; and  mandated that by June 30, 2017 at least 350 more ICF beds be converted to
waiver beds.

291. In its January 2016 weekly Pipeline publication, DODD wrote: “It's important to

note that the rate increase applies only to staff who provide waiver services, not to staff who

provide

services

in

an

Intermediate

Care

Facility

(ICF).”

http://dodd.ohio.gov/pipelineweekly/default.aspx?Paged=TRUE&p_PublishedDate=20160125%

2016%3A54%3A00&p_ID=73&PageFirstRow=3611&&View=%7B43E7A49F-AC48-4E8C-

AE4B-D85B8F396920%7D (visited Sept. 7, 2018).

292. The non-profit group the Center for Community Solutions, summarized HB 64 as

follows:

The department’s main focus will be reductions or conversions of beds at large ICFs to waiver status. Part of the administration’s urgency to continue downsizing ICFs is due to the threat of a lawsuit from Disability Rights Ohio (DRO) . . . . The budget takes a series of actions to incentivize individuals to move from institutions to the community and to make it more difficult for large ICFs to take new residents. . . . HB 64 creates a new, more stringent procedure to review new ICF admissions . . . . County board case managers will review admissions to these facilities . . . .

Center for Community Solutions, “The Department of Developmental Disabilities FY 2016-2017 Budget: Taking the Road Toward Change,” Volume 11, Number 12 (July 2015).

Recent Budgets: Robbing Peter (ICFs) to Pay Paul (Waivers)

293. The biennium budget passed in June 2017 (HB 49 covering FY 18-19), allocated

and funded 750 new waivers, as DODD announced on July 14, 2017.

http://dodd.ohio.gov/Communications/Lists/Posts/Post.aspx?ID=707 (visited Sept. 7, 2018).

294. As Director Martin said in his budget testimony in March 2017, “The Executive

Budget builds on transformational gains made in the last budget, and makes additional investments

in programs that support individuals who want to live and work in the community.”

http://dodd.ohio.gov/Communications/SiteAssets/DODD%20Testimony%20John%20Martin.pdf

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Case: 2:16-cv-00282-EAS-EPD Doc #: 326 Filed: 09/14/18 Page: 54 of 85 PAGEID #: 5474

(visited Sept. 7, 2018).

295. More recently, in June 2018, though not a budget year, another $24 million was

allocated

to

DODD

for

waiver

housing

needs.

http://dodd.ohio.gov/Communications/Lists/Posts/Post.aspx?ID=996 (visited Sept. 7, 2018).

296. In July 2018, DODD proposed rate increases for respite care reimbursement –

which CMS approved – but the rate increases for waiver respite services are higher than the rate

increases

for

ICF

respite

services.

http://dodd.ohio.gov/Communications/SiteAssets/RateIncreaseCommunityRespite.pdf (visited

Sept. 7, 2018).

297. In August 2018, DODD increased rates – called an “add-on” – paid to direct service

professionals (DSPs), but only for those DSP’s working in waiver settings.

http://dodd.ohio.gov/Communications/SiteAssets/TrainingLongevityAddOnGuide.pdf (visited

Sept. 7, 2018). For DSP’s in ICFs, there is no add-on. Id.

New Waiver Waiting List Rule

298. DODD recently amended its rules relating to the “waiver” waiting list. It did so

because the claimed waiting list of more than 40,000 maintained by DD Boards was grossly

inflated and not reflective of those actually desiring or needing waiver services. For instance,

seven of the ten (original) Guardians are listed on their local DD Board’s waiting lists, even though

they have no immediate need or desire for waiver services. Instead, their choice and need are for

a continued ICF setting. DODD – working with other agencies and groups – did this as part of an

effort called “Fix the List.” http://www.fixthelist.info/ (visited Sept. 7, 2014). Members of the

Fix the List group included OPRA, APSI, and OCB.

299. The culmination of DODD’s efforts is a new rule, titled “Home and Community-

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Case: 2:16-cv-00282-EAS-EPD Doc #: 326 Filed: 09/14/18 Page: 55 of 85 PAGEID #: 5475
Based Services Waivers – Waiting List,” which became effective September 1, 2018. O.A.C. § 5123-9-04 (the “New Rule”).
300. The stated purpose of the New Rule is to set “forth requirements for the waiting list established pursuant to section 5126.042 of the Revised Code when a county board determines that available resources are insufficient to enroll individuals who are assessed to need and who choose home and community-based services in department-administered home and communitybased services waivers.” Id. at § (A).
301. The New Rule establishes two categories, called “Immediate Need” and “Current need,” as determined by an assessment performed by DD Boards. Id. at § (B)(5), (9).
302. Those with an “Immediate Need” are not placed on the waiting list. Id. at § (D)(3)(b). Instead, those with an “Immediate Need” are given the immediate option for a waiver service:
the county board shall take action necessary to ensure the immediate need is met. The county board shall provide the individual or the individual's guardian, as applicable, with the option of having the individual's needs met in an intermediate care facility for individuals with intellectual disabilities or through communitybased alternative services. Once an individual or individual's guardian chooses the setting in which he or she prefers to receive services, the county board shall take action to ensure the individual's immediate need is met, including by enrollment in a home and community-based services waiver, if necessary. Such action may also include assisting the individual or the individual's guardian, as applicable, in identifying and accessing alternative services that are available to meet the individual's needs. Id. 303. The New Rule effectively creates a first-ever waiver entitlement for anyone deemed having an “immediate need,” because anyone having an “immediate need” has the “option” to choose waiver services and then “the county board shall take action to ensure the individual’s immediate need is met, including by enrollment in a home and community-based services waiver.”
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Case: 2:16-cv-00282-EAS-EPD Doc #: 326 Filed: 09/14/18 Page: 56 of 85 PAGEID #: 5476
Id.6 304. The New Rule subjects DD Boards to an unlimited number of waivers they must
provide since they cannot control the number of individuals who will be deemed to have an “immediate need.” But under Ohio’s current five year Medicaid “State Plan” approved by CMS, the total number of permissible waivers is capped at between 19,000 (year 1) and 25,000 (year 5). http://dodd.ohio.gov/IndividualFamilies/ServiceFunding/Documents/IO%20Approval%20and%2 0Amendment.pdf (visited Sept. 7, 2018).
305. Those with “immediate needs” are, on average, those with the highest, most critical, and more expensive needs. The practical result of the New Rule is that those with the highest (and most expensive) needs are often not even advised of their ability to receive immediate ICF care. This is the opposite of DODD’s goal stated in its 2012 White Paper: “we envision a system where individuals with the most severe disabilities and the highest needs . . . would be appropriate to receive the bundle of services that are provided in intermediate care facilities.” White Paper at 3 http://dodd.ohio.gov/Medicaid/Documents/ICF%20White%20Paper.pdf (visited Sept. 7, 2018). But the practical result of the New Rule, if implemented as directed, is that high needs people who select a waiver, despite perhaps best suited for an ICF that can provide a bundle of services cheaper than a waiver setting, will leave fewer dollars for the remaining eligible residents requesting a waiver setting.
306. Only those with a “Current Need” are placed on a DD Board’s waiting list. Id. at § (D)(2)(b).
307. The New Rule includes ICFs in the definition of “Alternative Services.” Id. at (B)(2).
6 Whether such was DODD’s intent is unclear, but such is the literal reading of the New Rule.
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308. The New Rule requires DD Boards to provide those with an “immediate need” or

a “current need” information about “Alternative Services,” which includes ICFs. Id. at § (D)(3)-

(5).

309. But by definition, anyone with an “immediate need” or a “current need” is eligible

for Medicaid DD services.

310. There is nothing “alternative” about the ICF entitlement. It is to be offered upon a

person first being deemed eligible for Medicaid services.

311. But the New Rule directs the DD Boards to offer the ICF entitlement only as an

“alternative” to a waiver selection, which unlike the ICF entitlement, is an optional, alternative

service.

312. For those eligible for Medicaid DD services, waiver services are, by definition,

“alternatives,” to the ICF entitlement. The New Rule, however, inverts this legal reality, requiring

the ICF entitlement only to be discussed in the context of, and as an “alternative to,” someone

choosing or considering waiver services.

313. Moreover, the “old” DODD rule that the New Rule replaced, already required DD

Boards to offer the ICF entitlement as an alternative service to Medicaid eligible residents, but DD

Boards rarely did so. OAC § 5123:2-1-08 (B)(1)(d) (rescinded September 1, 2018)

http://codes.ohio.gov/oac/5123:2-1-08v1 (visited Sept. 7, 2018).

314. In August 2018, the Hamilton County DD Board gave a 40 minute video

presentation

describing

the

“new”

Waiting

List

rule.

https://www.youtube.com/watch?v=lgPrrqnA2s8&feature=youtu.be&utm_source=Reflections+

August+2018&utm_campaign=Reflections+August+2018&utm_medium=email (visited Sept.

11, 2018). Though the speaker, who was on the work group that developed the new rule, mentions

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Case: 2:16-cv-00282-EAS-EPD Doc #: 326 Filed: 09/14/18 Page: 58 of 85 PAGEID #: 5478
“alternatives” to waivers – “community alternatives” – ICF’s are not mentioned once during the entire presentation. Id.
315. A similar presentation was given in Medina County in August 2018. https://www.youtube.com/watch?v=XiC0HU9eYtQ (visited Sept. 11, 2018). During the hourlong presentation, ICFs are not mentioned once, even though “alternatives” to waiver are frequently mentioned. Id.
How the System Really Works 316. Historically, when DD Boards send annual letters to those on their waiting lists informing them of their waiting list number, the DD Boards do not include any information about the ICF entitlement the individual could immediately select that could meet their needs and forestall their placement on a waiting list. Thus, the vast majority of people on DD Boards’ waiting lists do not understand they have an immediate right to an ICF placement, and they have no knowledge about ICF settings with immediate vacancies. 317. Though CareStar (a third party entity contracted by DODD) counsels existing ICF residents and DD Boards counsel new admissions to ICFs about their waiver alternatives, they do not counsel existing waiver recipients of their ICF entitlement, nor does DODD, ODM, or any entity do so. 318. Thus, while ICF residents receive counseling regarding optional waiver services, those receiving waiver services (and those awaiting waiver services) do not receive counseling regarding their ICF entitlement. 319. At most, as part of an annual process while signing a slew of papers, waiver recipients (and those awaiting waiver services) may sign a so-called “Freedom of Choice” form provided by their DD Board listing ICF services as a choice.
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http://dodd.ohio.gov/Forms/Documents/Freedom%20of%20Choice%20Document.pdf (visited Sept. 7, 2018). Inverting things, the form begins: “A person eligible for a Medicaid home and community-based services waiver is also eligible for services in an intermediate care facility.” Id. The form provides scant information about ICFs and regardless, it is normally presented by the DD Board as a formality included with a series of documents signed annually by those already receiving waiver services.
320. So how does the “Freedom of Choice” work in practice? 321. “Nick”7 is an administrator at a DD provider that provides both ICF and waiver services to more than 300 people. Nick has worked in the DD field for more than 20 years. Before joining his provider, Nick was a Service and Support Administrator (“SSA”) at a large DD Board. Because Nick has worked with individuals of varying abilities, he understands that there needs to be a variety of residential options available to individuals. Mike has found that each individual is unique and needs to be treated as such. 322. On Friday, September 7, 2018, Nick attended the annual meeting for a waiver resident (Tim”). Nick has attended more than 100 such annual meetings for waiver residents over the years. In fact, as a former SSA, Nick used to conduct such meetings. This meeting was led by an SSA from the DD Board. Tim is high functioning and his own guardian. 323. At Tim’s annual meeting, the SSA handed Tim a bunch of forms to sign. When it came to the Freedom of Choice form, the SSA did not say the name of the form. Instead, as he handed it to Tim to sign, the SSA said: “This one says you are being offered the waiver again for the new year and that you do not want to live in an ICF.” Tim responded: “What’s that? Is that
7 “Nick” is a real person, who out of fear of reprisal, requested anonymity. The events contained herein are typical and were all documented.
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like a group home?” The SSA responded: "No, it's like a nursing home, but for people with DD and I don't know anyone who would want to live in a nursing home, do you?" The SSA then laughed.
324. Nick reports such use of the Freedom of Choice form is typical, that rarely are residents (or their guardians) given a real explanation of what the ICF is, let alone the benefits ICFs provides or how to find more information about ICFs.
325. No matter the formal rules or requirements, DD Boards – which are agents for DODD and ODM – normally do not inform Medicaid eligible residents of ICF services, either when the person initially inquiries about potential DD services or upon the formal determination of Medicaid eligibility, nor does ODM, DODD, DRO, or any other entity. As such, individuals are often unaware of the ICF entitlement when considering services options. Instead, individuals usually only first sign their Freedom of Choice forms – ostensibly giving them a choice of ICF or waiver service – “when the individual is essentially on the doorstep of the [waiver setting] already,” as Plaintiffs state. Plaintiffs’ Reply and Supplemental Evidence in Support of Motion for Class Certification at 25 (ECF No. 283).
326. Exit and diversion waivers are undersubscribed, meaning – despite outreach and counseling efforts by CareStar and the DD Boards – not all of the roughly 1100 exit and diversion waivers have been utilized.
327. For the exit and diversion waivers that have been utilized by ICF guardians, most are requested by those residents whose guardian is APSI, the state designated “guardian” of last resort. The percentage of ICF residents with APSI as their guardian who express interest in exit and diversion waivers is 49%. In contrast, the percentage of all other ICF residents (meaning those with family or friend guardians) interested such waivers is 15%. Thus, an ICF resident with APSI
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as its guardian is more than three likely to request an exit or diversion waiver than is one who has a father, mother, sibling, or friend as her guardian. Affidavit of Lori Horvath, Deputy Director DODD (ECF Nos. 273-3 & 291-1).
328. Kristen Henry is the Executive Director of APSI. Prior to joining APSI, Ms. Henry worked as an attorney at DRO.
329. Since 2015, as authorized by HB 64, DODD has purchased ICF beds from providers “for the purpose of reducing the number of ICF/IID certified beds in Ohio.” http://dodd.ohio.gov/Initiatives-and-Partnerships/Documents/RFISaleLicensedICFBeds.pdf (visited Sept. 7, 2018). Doing so eliminates the ICF license. DODD incentivizes providers by paying them approximately $7,000 per bed license. DODD also makes it hard for providers to instead sell their ICF beds to another provider, which the providers could normally do for more than $7,000. DODD frustrates the process of private sale by causing the buyer delays in approving their ICF beds, meaning the buyer is immediately paying the roughly $7000 annual franchise fee for the new bed (i.e., “bed tax”), but is unable to immediately use the license. This limits the market for ICF licenses, often causing a provider to instead sell the bed license to DODD, which eliminates it from the system. Doing so eliminates the annual approximate cost of $70,000 for the license (40% paid by DODD and 60% by Medicaid) in perpetuity.
330. The result of all these efforts – converting ICF beds to waivers, downsizing large ICFs, increasing waiver funding, eliminating building new ICFs greater than 8 beds, changing the wait list rule, buying back ICF licenses, options counseling, and decreasing ICF reimbursement through changes in rate methodology – is that in just the past five years, more than 20 private ICFs have closed, eliminating or downsizing more than 600 private ICF beds, with another 600 or more planned for elimination. This effort is separate and apart from State Defendants efforts to close its
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own developmental centers, which over the past decade has resulted in the elimination of hundreds more (public) ICF beds. These ICF beds have been eliminated not from a lack of demand, but instead based on Defendants’ concerted efforts to eliminate them for policy and perceived economic reasons.
331. The cumulative effect of these efforts is: (i) tens of thousands of Medicaid eligible DD residents and their guardians are unaware the ICF entitlement exists, (ii) for those living in ICFs, their homes face closure due to inadequate rates, forced downsizing of ICF beds, and operating limitations that make it financially challenging for ICF providers to continue to offer their residents the necessary services and supports.
DRO’s Lawsuit & Interactions with Defendants 332. Despite the Grand Bargain and HB 64 adding thousands of waiver slots, eliminating more than 1,000 ICF beds, increasing waiver reimbursement rates, and curtailing the admission of new residents to ICFs, DRO – on behalf of Plaintiffs – followed through in its threats and filed the instant lawsuit on March 31, 2016. 333. On May 2, 2016, shortly after this lawsuit was filed, the Ohio Olmstead Task Force (“OOTF”) wrote a letter to DRO “inform[ing] that OOTF has voted to support DRO in the lawsuit you filed on behalf of Ohioans who wish to live and work in their local communities – but are unable to do so. . . . OOTF appreciates and values the work of Disability Rights Ohio and looks forward to assisting you in gaining a positive outcome of the lawsuit.” https://www.disabilityrightsohio.org/assets/documents/ohio_olmstead_task_force_letter_of_supp ort.pdf (visited Sept. 7, 2018). 334. Formed in 2002, OOTF describes itself “as a grassroots coalition of people who have disabilities, family members, and people who support people with disabilities. The purpose
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of OOTF is to ensure that people with disabilities have the right to live and work in their

communities. Id.

335. OOTF is comprised of approximately 30 members, including Opportunities for

Ohioans with Disabilities (“OOD”), which is the designated state agency in Ohio legally

responsible for providing vocational and employment services to DD Ohioans. Complaint at ¶ 94.

336. OOD is a party defendant in this case. Id.

337. Other OOTF members include CareStar, the third party company DODD hired to

provide “outreach” and counseling services to ICF residents for more than $1 million.

338. Thus, a defendant in this case – OOD – is on a task force that “support[s]” the filing

of the lawsuit against the Defendants.

339. Another defendant, ODM, regularly attends OOTF meetings.

https://ohioolmstead.com/participants-2/ (visited Sept. 7, 2018).

340. ODM’s representatives at the OOTF meetings include Linda Wetters and Sue

Willis. Id.

341. Wetters

and

Willis

are

DRO

Board

Members.

http://www.disabilityrightsohio.org/board-directors (visited Sept. 7, 2018).

342. Accordingly, two defendants in this case – OOD and ODM – are members of, or

attend the meetings of, OOTF, a task force that supports the filing of this lawsuit against them.

And the ODM representatives that attend the OOTF meetings are on DRO’s Board, the

organization that filed this lawsuit. Id.

343. On or about September 11, 2018, Governor Kasich appointed Michael Kirkman to

the Opportunities for Ohioans with Disabilities (“OOD”) Council, for a term ending June 1, 2019.

http://www.hannah.com/DesktopDefaultPublic.aspx?type=hns&id=Xics2beb2rw%3d&u=onMq

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%2fJUhvbw%3d (visited Sept. 12, 2018). 344. Governor Kasich and OOD are defendants in this case. 345. Kirkman is the longtime Executive Director of DRO, the organization that
spearheaded this lawsuit and represents the Plaintiffs. VI. CROSSCLAIMS First Claim for Relief
Violation of Title II of the Americans with Disabilities Act (Against the State Defendants)
346. The allegations of paragraphs 1 through 345 are hereby re-alleged as if set forth fully herein and incorporated by reference.
347. Guardians, on behalf of their children/wards, as well as all others who seek, or may seek, to live in an ICF, have disabilities that substantially limit one or more major life activities, such as self-care, learning, working, and brain function. 42 U.S.C. § 12101(1)(A), 12102(2). They are qualified to participate in the State Defendants’ activities and system of programs and services, with or without reasonable modifications to their rules, policies, or practices. 42 U.S.C. § 12131(2).
348. Title II of the ADA applies to public entities, including state or local governments and any departments, agencies, or other instrumentalities of state or local governments. 42 U.S.C. §§ 12131, 12132; 28 C.F.R. § 35.104.
349. The State Defendants – Governor Kasich, Director Martin, and Director Sears – acting in their official capacities are public entities within the meaning of Title II of the ADA.
350. Title II provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42
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U.S.C. § 12132. 351. Guardians, as well as all others who seek, or may seek, to live in an ICF, represent
and are acting on behalf of qualified individuals with a disability who the State Defendants have discriminated against and excluded from full participation in or denied the benefits of the services, programs, or activities that they are required to provide to them, as relates to provision of the ICF entitlement, including their: (i) failure to inform about the ICF entitlement, (ii) failure to adequately fund the ICF entitlement, (iii) failure to administer services, programs, and activities in the most integrated setting appropriate to their needs; and (iv) creation of rules and procedures that endanger or limit the continued provision of the ICF entitlement to those choosing it.
352. The State Defendants not only lack a comprehensive and effectively working plan designed to provide the Guardians, as well as all others who seek, or may seek, to live in an ICF, their ICF entitlement, they instead are implementing a comprehensive plan to deny or limit their ICF entitlement.
353. The remedies and rights under the ADA are “provide[d] to any person alleging discrimination on the basis of disability.” Id. at § 12133.
WHEREFORE, the Guardians respectfully request that the Court: A. Issue Declaratory Judgment finding that the State Defendants are violating the ADA by denying Guardians, as well as all others who seek, or may seek, to live in an ICF, the full participation in, and the benefits of the services, programs, or activities that they are required to provide to them. B. Grant permanent, injunctive relief to remedy the State Defendants’ violations of the ADA, including requiring them to provide Guardians, as well as all others who seek, or may seek, to live in an ICF, full participation in, and the benefits of the services, programs, or activities that
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they are required to provide to them. C. Award the Guardians their reasonable attorneys’ fees and costs pursuant to 42
U.S.C. § 12205, 42 U.S.C. § 1988, and any other applicable provision of law; and D. Grant any other relief which is necessary and proper to protect the rights of the
Guardians, as well as all others who seek, or may seek, to live in an ICF. Second Claim for Relief
Violation of Section 504 of the Rehabilitation Act of 1973 (Against the State Defendants)
354. The allegations of paragraphs 1 through 353 are hereby re-alleged as if set forth fully herein and incorporated by reference.
355. Guardians, on behalf of their children/wards, as well as all others who seek, or may seek, to live in an ICF, have disabilities that substantially limit one or more major life activities, such as self-care, learning, working, and brain function. 29 U.S.C. § 705(20)(B); 42 U.S.C. § 12102. They are qualified to participate in the State Defendants’ system of programs and services, with or without reasonable modifications to their rules, policies, or practices. 29 U.S.C. § 705(20)(B); 42 U.S.C. § 12102.
356. The Rehabilitation Act prohibits discrimination against people with disabilities under any program or activity that receives federal financial assistance. 29 U.S.C. § 794(a) (“No otherwise qualified individual with a disability in the United States . . . shall . . . be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance”).
357. The State Defendants are a program or activity receiving Federal financial assistance within the meaning of the Rehabilitation Act.
358. The State Defendants have and continue to exclude Guardians, as well as all others
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who seek, or may seek, to live in an ICF, from their full participation in, or their denial of the benefits of, the provision and receipt of the ICF entitlement.
359. The State Defendants are violating the Rehabilitation Act and its implementing regulations by administering, funding, and operating their service system for people with intellectual and developmental disabilities in a manner that fails to make the ICF entitlement available, or available in the most integrated setting appropriate to the needs of the Guardians, as well as all others who seek, or may seek, to live in an ICF. 28 C.F.R. § 41.51(d).
360. Providing the Guardians, as well as all others who seek, or may seek, to live in an ICF, the full benefits of the ICF entitlement would not fundamentally alter the State Defendants’ service system for people with intellectual and developmental disabilities.
361. The State Defendants not only lack a comprehensive and effectively working plan designed to provide the Guardians, as well as all others who seek, or may seek, to live in an ICF, their ICF entitlement, they instead are implementing a comprehensive plan to deny or limit their ICF entitlement.
WHEREFORE, the Guardians respectfully request that the Court: A. Issue Declaratory Judgment finding that the State Defendants are violating the Rehabilitation Act by excluding or limiting Guardians, as well as all others who seek, or may seek, to live in an ICF, from their full participation in, or the denial of the benefits of, the ICF entitlement. B. Grant permanent, injunctive relief to remedy the State Defendants’ violations of the Rehabilitation Act, including requiring them not to exclude or limit Guardians, as well as all others who seek, or may seek, to live in an ICF, from their full participation in, and their denial of the benefits of, the ICF entitlement. C. Award the Guardians their reasonable attorneys’ fees and costs pursuant to 29
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U.S.C. § 794a, 42 U.S.C. § 1988, and any other applicable provision of law; and D. Grant any other relief which is necessary and proper to protect the rights of the
Guardians, as well as all others who seek, or may seek, to live in an ICF. Third Claim for Relief
Violation of the Social Security Act (Against the State Defendants)
362. The allegations of paragraphs 1 through 361 are hereby re-alleged as if set forth fully herein and incorporated by reference.
363. The State of Ohio is required to operate its Medicaid program in compliance with the Social Security Act, 42 U.S.C. § 1396 and its implementing regulations governing level of care determinations and freedom of choice.
364. The Social Security Act requires and presupposes that Medicaid eligible individuals will be advised of their ICF entitlement before being advised of any alternative, optional waiver services.
365. Specifically, the Social Security Act requires that before a state offers waiver services, it must: (a) provide “assurance” that “[a]n evaluation of the need for the level of care provided in an . . . ICF” is conducted, (b) determine “that the beneficiary, but for the provision of waiver services, would otherwise be institutionalized in such a facility,” and (c) provide “assurance” that beneficiaries “will be informed of any feasible alternatives under the waiver, and [g]iven the choice of either institutional or home and community-based services.” 42 C.F.R. § 441.302(c), (d).
366. As regards the provision of the ICF entitlement, the Social Security Act also requires states to provide it to Medicaid eligible residents with “reasonable promptness.” 42 U.S.C. § 1396(a)(8).
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367. The State Defendants, however, have failed to meaningfully inform Guardians, as well as all others who seek, or may seek, to live in an ICF, of their ICF entitlement, either when the Guardians were originally assessed as eligible for Medicaid benefits or thereafter, and in so doing the State Defendants failed to provide the ICF benefit with reasonable promptness.
368. As a result of these failures, Guardians, as well as all others who seek, or may seek, to live in an ICF, were denied, and in some cases remain denied, the opportunity to make a timely and informed decision regarding their ICF benefit, and also were not provided their ICF benefit with reasonable promptness.
WHEREFORE, the Guardians respectfully request that the Court: A. Issue Declaratory Judgment finding that the State Defendants are violating the Social Security Act by failing to timely and meaningfully inform Guardians, as well as all others who seek, or may seek, to live in an ICF, of their ICF entitlement, either when the Guardians were originally assessed as eligible for Medicaid benefits or thereafter, and in so doing the State Defendants failed to provide the ICF benefit with reasonable promptness. B. Grant permanent, injunctive relief to remedy the State Defendants’ violations of the Social Security Act, including requiring them to timely and meaningfully inform Guardians, as well as all others who seek, or may seek, to live in an ICF, of their ICF entitlement, both when someone is originally assessed as eligible for Medicaid benefits and thereafter, and to then provide the ICF benefit with reasonable promptness. C. Award the Guardians their reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 and any other applicable provision of law; and D. Grant any other relief which is necessary and proper to protect the rights of the Guardians, as well as all others who seek, or may seek, to live in an ICF.
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Fourth Claim for Relief Violation of Title II of the Americans with Disabilities Act
(Against OCB) 369. The allegations of paragraphs 1 through 368 are hereby re-alleged as if set forth fully herein and incorporated by reference. 370. OCB appears in this case “on behalf of itself and all 88 county boards of developmental disabilities in the State of Ohio.” OACB Motion to Intervene at 1 (ECF No. 68). 371. Title II of the ADA applies to public entities, including state or local governments and any departments, agencies, or other instrumentalities of state or local governments. 42 U.S.C. §§ 12131, 12132; 28 C.F.R. § 35.104. 372. The DD Boards are public entities within the meaning of Title II of the ADA. 373. Title II provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. 374. Guardians, as well as all others who seek, or may seek, to live in an ICF, are qualified individuals with a disability who the DD Boards have discriminated against and excluded from full participation in, or denied the benefits of the services, programs, or activities that the DD Boards are required to provide to them, as relates to provision of the ICF entitlement, including their failure to: (i) timely determination of Medicaid eligibility; (ii) timely information and counsel about the ICF entitlement; and (iii) provide adequate service and support administration to individuals seeking services. 375. The DD Boards lack a comprehensive and effectively working plan designed to provide the Guardians, as well as all others who seek, or may seek, to live in an ICF, information
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concerning their ICF entitlement. 376. The remedies and rights under the ADA are “provide[d] to any person alleging
discrimination on the basis of disability.” Id. at § 12133. WHEREFORE, the Guardians respectfully request that the Court: A. Issue Declaratory Judgment finding that the DD Boards are violating the ADA by
denying Guardians, as well as all others who seek, or may seek, to live in an ICF: (i) timely determination of Medicaid eligibility; (ii) timely information and counsel about the ICF entitlement, and (iii) adequate service and support administration to individuals seeking services.
B. Grant permanent, injunctive relief to remedy the DD Boards’ violations of the ADA, including requiring them to provide Guardians, as well as all others who seek, or may seek, to live in an ICF, the information necessary to make a timely decision about their ICF entitlement.
C. Award the Guardians their reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 12205, 42 U.S.C. § 1988, and any other applicable provision of law; and
D. Grant any other relief which is necessary and proper to protect the rights of the Guardians, as well as all others who seek, or may seek, to live in an ICF.
Fifth Claim for Relief Violation of Section 504 of the Rehabilitation Act of 1973
(Against OCB) 377. The allegations of paragraphs 1 through 376 are hereby re-alleged as if set forth fully herein and incorporated by reference. 378. The Rehabilitation Act prohibits discrimination against people with disabilities under any program or activity that receives federal financial assistance. 29 U.S.C. § 794(a) (“No otherwise qualified individual with a disability in the United States . . . shall . . . be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program
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or activity receiving Federal financial assistance”). 379. The DD Boards are a program or activity receiving Federal financial assistance
within the meaning of the Rehabilitation Act. 380. The DD Boards have and continue to exclude Guardians, as well as all others who
seek, or may seek, to live in an ICF, from their full participation in, or their denial of the benefits of, the provision and receipt of the ICF entitlement.
381. The DD Boards are violating the Rehabilitation Act and its implementing regulations by administering, funding, and operating their service system for people with intellectual and developmental disabilities in a manner that fails to make the ICF entitlement available, or available in the most integrated setting appropriate to the needs of the Guardians, as well as all others who seek, or may seek, to live in an ICF. 28 C.F.R. § 41.51(d).
382. Providing the Guardians, as well as all others who seek, or may seek, to live in an ICF, information necessary to receive the full benefits of the ICF entitlement would not fundamentally alter the DD Boards service system for people with intellectual and developmental disabilities.
383. The DD Boards not only lack a comprehensive and effectively working plan designed to provide the Guardians, as well as all others who seek, or may seek, to live in an ICF, information necessary to obtain their ICF entitlement, they instead are implementing a comprehensive plan to deny or limit their ICF entitlement.
WHEREFORE, the Guardians respectfully request that the Court: A. Issue Declaratory Judgment finding that the DD Boards are violating the Rehabilitation Act by excluding or limiting Guardians, as well as all others who seek, or may seek, to live in an ICF, from the information and administration necessary to provide them the ICF
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entitlement. B. Grant permanent, injunctive relief to remedy the DD Boards’ violations of the
Rehabilitation Act, including requiring them to timely provide the information necessary for Guardians, as well as all others who seek, or may seek, to live in an ICF, to elect the ICF entitlement.
C. Award the Guardians their reasonable attorneys’ fees and costs pursuant to 29 U.S.C. § 794a, 42 U.S.C. § 1988, and any other applicable provision of law; and
D. Grant any other relief which is necessary and proper to protect the rights of the Guardians, as well as all others who seek, or may seek, to live in an ICF.
Sixth Claim for Relief Violation of the Social Security Act
(Against OCB) 384. The allegations of paragraphs 1 through 383 are hereby re-alleged as if set forth fully herein and incorporated by reference. 385. The DD Boards are required to operate the Medicaid program in compliance with the Social Security Act, 42 U.S.C. § 1396 and its implementing regulations governing level of care determinations and freedom of choice. 386. The Social Security Act requires and presupposes that Medicaid eligible individuals will be advised of their ICF entitlement before being advised of any alternative, optional waiver services. 387. Specifically, the Social Security Act requires that before a state offers waiver services, it must first: (a) provide “assurance” that “[a]n evaluation of the need for the level of care provided in an . . . ICF” is conducted, (b) determine “that the beneficiary, but for the provision of waiver services, would otherwise be institutionalized in such a facility,” and (c) provide
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“assurance” that beneficiaries “will be informed of any feasible alternatives under the waiver, and [g]iven the choice of either institutional or home and community-based services.” 42 C.F.R. § 441.302(c), (d).
388. As regards the provision of the ICF entitlement, the Social Security Act also requires states to provide it to Medicaid eligible residents with “reasonable promptness.” 42 U.S.C. § 1396(a)(8).
389. In administering Medicaid benefits as the State’s designated agent, the DD Boards, however, have failed to meaningfully inform Guardians, as well as all others who seek, or may seek, to live in an ICF, of their ICF entitlement, either when the Guardians were (or should have been) originally assessed as eligible for Medicaid benefits or thereafter
390. For those DD Boards that also administer ICFs, they have failed to provide the ICF benefit with reasonable promptness to those who seek, or may seek, it.
391. As a result of these failures, Guardians, as well as all others who seek, or may seek, to live in an ICF, were denied, and in some cases remain denied, the opportunity to make a timely and informed decision regarding their ICF benefit, and also for those DD Boards that administer ICFs, were not provided their ICF benefit with reasonable promptness.
WHEREFORE, the Guardians respectfully request that the Court: A. Issue Declaratory Judgment finding that the DD Boards are violating the Social Security Act by failing to timely and meaningfully inform Guardians, as well as all others who seek, or may seek, to live in an ICF, of their ICF entitlement, either when the Guardians were (or should have been) originally assessed as eligible for Medicaid benefits or thereafter, and for those DD Boards that administer ICFs, in by failing to provide the ICF benefit with reasonable promptness.
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B. Grant permanent, injunctive relief to remedy the DD Boards’ violations of the Social Security Act, including requiring them to timely and meaningfully inform Guardians, as well as all others who seek, or may seek, to live in an ICF, of their ICF entitlement, both when someone is (or should have been) originally assessed as eligible for Medicaid benefits and thereafter, and for those DD Boards that administer the ICF benefit, to then provide the ICF benefit with reasonable promptness.
C. Award the Guardians their reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 and any other applicable provision of law; and
D. Grant any other relief which is necessary and proper to protect the rights of the Guardians, as well as all others who seek, or may seek, to live in an ICF.
THIRD-PARTY COMPLAINT AGAINST OHIO DISABILITY RIGHTS LAW AND POLICY CENTER, INC. d/b/a DISABILITY RIGHTS OHIO (“DRO”)
For their Third-Party Complaint against Ohio Disability Rights Law and Policy Center, Inc. d/b/a Disability Rights Ohio (“DRO”), Third-Party Plaintiffs, Intervenor-Guardians (“Guardians”) allege and state as follows:
1. The allegations of paragraphs 1 through 345 of their Crossclaims are hereby realleged as if set forth fully herein and incorporated by reference.
2. DRO is a non-profit corporation based in Columbus, Ohio. 3. In 2012, Governor Kasich designated DRO to replace Ohio Legal Services as Ohio’s Protection and Advocacy (“P&A”) system pursuant to the DD Act, 42 U.S.C. § 15041 et seq. Executive Order 2012-14K. 4. DRO is “the Ohio agency responsible for administering the system of protection and advocacy required by the Developmental Disabilities Assistance Act.” Id. at 2. 5. As the State’s P&A, DRO has those duties as prescribed by the DD Act, 42 U.S.C.
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§ 15041 et seq., and implementing regulations, 45 C.F.R. § 1325 et seq. 6. As the State’s P&A, DRO annually receives federal financial assistance and further
“agrees that the federal funds it receives pursuant to the Developmental Disabilities Assistance Act and other related provisions of federal law shall be maintained, expended and accounted for in accordance with all applicable federal and State law requirements.” Executive Order 2012-14K.
7. DRO’s website states its Board of Directors consists of “[u]p to 15 members . . . with the majority being people with disabilities or their family members.” http://www.disabilityrightsohio.org/board-directors (visited Sept. 14, 2018).
8. Per DRO’s website, it currently has 13 Board members. Id. 9. None of DRO’s Board members are residents of an ICF or are guardians of someone who lives in an ICF. 10. On information and belief, no member of DRO’s Board has ever been a resident of an ICF or a guardian of someone who lives in an ICF. 11. DRO openly advocates for the closure of ICF facilities. 12. On information and belief, DRO does not provide information on ICFs to Medicaid eligible individuals. 13. On information and belief, DRO rarely, if ever, helps place an individual in a public or private ICF, even when requested to do so. 14. On information and belief, DRO has never instituted any formal action on behalf of someone seeking entry into an ICF, but it has instituted numerous formal actions on behalf of individuals seeking a waiver setting. 15. Some of the Guardians have submitted, or attempted to submit, formal public input to DRO for its required annual “Statement of Objectives and Priorities,” which input DRO has
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ignored or refused to incorporate into its Statement of Objectives and Priorities. 16. In 2014, DRO held public meetings to discuss its goals of downsizing and closing
ICFs and sheltered workshops. Some of the Guardians – along with hundreds of other ICF and sheltered workshop families – showed up at the meetings and expressed their opposition to DRO’s intended platform. The Guardians’ (and others) were ignored. Instead, DRO pressed the State – as reflected in its July 1, 2014 letter to the Defendants and its subsequent actions – to close and limit ICFs and sheltered workshops.
17. Similarly, in 2015, some of the Guardians, and hundreds, perhaps thousands, of other ICF and sheltered workshop families, rallied to oppose H.B. 64. DRO not only ignored and opposed their efforts, but DRO instead lobbied the Defendants to further limit and impede the ICF option.
VENUE AND JURISDICTION 18. This Third-Party Complaint is brought pursuant to: (i) the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (“DD Act”), 42 U.S.C. § 15041 et seq., (ii) Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132 et seq., and (iii) Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, (iv) the Fourteenth Amendment to the United States Constitution, and (v) Ohio Revised Code (“O.R.C.”) Chapters 5123, 5124, 5126, 5162-66. 19. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and to the extent necessary, 28 U.S.C. § 1367(a). 20. The Guardians’ claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201(a) and 2202, 42 U.S.C. § 12133, 29 U.S.C. § 794a, and 42 U.S.C. § 1983, and by Rules 57 and 65 of the Federal Rules of Civil Procedure.
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21. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the acts and omissions giving rise to the claims occurred in the Southern District of Ohio.
CLAIMS FOR RELIEF COUNT ONE
Violation of Developmental Disabilities Assistance & Bill of Rights Act of 2000 22. The preceding allegations of this Third Party Complaint are hereby re-alleged as if set forth fully herein and incorporated by reference. 23. Pursuant to the DD Act, 42 U.S.C. § 15041 et seq., DRO is Ohio’s designated agency “to protect and advocate the right of individuals with developmental disabilities” in Ohio. 24. The Guardians are the guardians of Ohioans who have developmental disabilities. 25. DRO fails to protect and advocate for the Guardians, as well as all others who seek, or may seek, to live in an ICF or participate in sheltered workshops, by failing to do the following, as required by the DD Act:
 “to ensure the protection of, and advocacy for, the rights of [DD] individuals . . . who are or who may be eligible for treatment, services, or habilitation.” Id. at § 15043(a)(2)(A)(i).
 “provide information on and referral to programs and services addressing the needs of individuals with developmental disabilities.” Id. at (ii).
 annually submit to HHS a list of “goals and priorities developed through data driven strategic planning.” Id. at (a)(2)(C).
 annually allow the public and individuals with DD an opportunity to comment on the P&A’s goals and priorities. Id. at (a)(2)(D).
 “establish a grievance procedure for clients or prospective clients of the system to ensure that individuals with developmental disabilities have full access to services of the system.” Id. at (a)(2)(E).
Collectively, along with the “Requirements” listed below, the “P&A Requirements.”
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26. As Ohio’s P&A, DRO is required to “address[] the needs of [all] individuals with developmental disabilities,” not just a subset, or favored portion, of individuals with developmental disabilities. Id. at 15043(a)(2)(A)(ii) (the “Needs Requirement”).
27. By failing to address the needs of those represented in this lawsuit by the Guardians, as well as all others who seek, or may seek, to live in an ICF, DRO violates the Needs Requirement of the DD Act.
28. The DD Act also requires that a P&A have a governing board “composed of members who broadly represent . . . the needs of individuals served by the system.” Id. at § 15044(a). The majority of its members “shall” be “individuals with disabilities (or their guardians) . . . who are eligible for services . . . through the system.” Id. (the “Board Requirement”). Id.
29. By failing to have any members of its Board who are residents of an ICF or are guardians of someone who lives in an ICF, DRO violates the Board Requirement.
30. The DD Act also requires that DRO “not implement a policy or practice restricting the remedies which may be sought on behalf of individuals with developmental disabilities or compromising the authority of the Protection and Advocacy System (P&A) to pursue such remedies through litigation, legal action, or other forms of advocacy.” 45 C.F.R. § 1326.21(c) (the “No Restriction Requirement”).
31. By failing to advocate on behalf of the Guardians, as well as all others who seek, or may seek, to live in an ICF, DRO violates the No Restriction Requirement of the DD Act.
32. The DD Act requires DRO to, at least annually, “[o]btain formal public input on its Statement of Objectives and Priorities” and then “[i]ncorporate or address any comments received through public input.” 45 C.F.R. § 1326.22(d)(1), (4) (the “Public Input Requirement”).
33. By ignoring the input provided by some Guardians, or refusing to incorporate
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Guardians’ input into its “Statement of Objectives and Priorities,” DRO violates the Public Input Requirement of the DD Act.
WHEREFORE, the Guardians respectfully request that the Court: A. Issue Declaratory Judgment finding that DRO is violating the DD Act by failing to provide the Guardians, as well as all others who seek, or may seek, to live in an ICF or participate in sheltered workshops, the P&A Requirements, causing them to be denied the protection and advocacy services to which they are entitled under the DD Act; B. Grant permanent, injunctive relief to remedy DRO’s violations of the DD Act, including requiring DRO to: (i) advocate for, and provide information to, individuals who live in an ICF, or seek to live in an ICF or participate in sheltered workshops; (ii) add individuals who live in an ICF, or seek to live in an ICF, to its Board; and (iii) incorporate the input of individuals who live in an ICF, or seek to live in an ICF or participate in sheltered workshops, into its annual Statement of Objectives and Priorities; C. Award the Guardians their reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 and any other applicable provision of law; and D. Grant any other relief which is necessary and proper to protect the rights of the Guardians, as well as all others who seek, or may seek, to live in an ICF.
COUNT TWO Violation of Title II of the Americans with Disabilities Act 34. The preceding allegations of this Third-Party Complaint are hereby re-alleged as if set forth fully herein and incorporated by reference. 35. Guardians, on behalf of those they represent, as well as all others who seek, or may seek, to live in an ICF or participate in sheltered workshops, have disabilities that substantially limit one or more major life activities, such as self-care, learning, working, and brain function. 42
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U.S.C. § 12101(1)(A), 12102(2). They are qualified to participate in DRO’s activities and system of programs and services, with or without reasonable modifications to DRO’s rules, policies, or practices. 42 U.S.C. § 12131(2).
36. Title II of the ADA applies to public entities, including state or local governments and any departments, agencies, or other instrumentalities of state or local governments. 42 U.S.C. §§ 12131, 12132; 28 C.F.R. § 35.104.
37. As Ohio’s designated agency “to protect and advocate the right of individuals with developmental disabilities,” DRO is a public entity.
38. Title II provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.
39. Guardians, as well as all others who seek, or may seek, to live in an ICF or participate in sheltered workshops, are qualified individuals with a disability who DRO has excluded from participation in, and denied the benefits of the services, programs, or activities that DRO is required to provide to them, including the P&A Requirements.
40. DRO has also subjected the Guardians, as well as all others who seek, or may seek, to live in an ICF or participate in sheltered workshops, to discrimination.
41. Providing the Guardians, as well as all others who seek, or may seek, to live in an ICF or participate in sheltered workshops, with the P&A Requirements would not fundamentally alter DRO’s service system for people with intellectual and developmental disabilities.
42. DRO lacks a comprehensive and effectively working plan designed to provide the Guardians, as well as all others who seek, or may seek, to live in an ICF or participate in sheltered
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workshops, the P&A Requirements. 43. The remedies and rights under the ADA are “provide[d] to any person alleging
discrimination on the basis of disability.” Id. at § 12133. WHEREFORE, the Guardians respectfully request that the Court: A. Issue Declaratory Judgment finding that DRO is violating the ADA by denying
Guardians, as well as all others who seek, or may seek, to live in an ICF or participate in sheltered workshops, participation in, and the benefits of the services, programs, or activities that DRO is required to provide to them.
B. Grant permanent, injunctive relief to remedy DRO’s violations of the ADA, including requiring DRO to provide Guardians, as well as all others who seek, or may seek, to live in an ICF or participate in sheltered workshops, full participation in, and the benefits of the services, programs, or activities that DRO is required to provide to them.
C. Award the Guardians their reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 12205, 42 U.S.C. § 1988, and any other applicable provision of law; and
D. Grant any other relief which is necessary and proper to protect the rights of the Guardians, as well as all others who seek, or may seek, to live in an ICF.
COUNT THREE Violation of Section 504 of the Rehabilitation Act of 1973 44. The preceding allegations of this Third-Party Complaint are hereby re-alleged as if set forth fully herein and incorporated by reference. 45. Guardians, on behalf of those they represent, as well as all others who seek, or may seek, to live in an ICF or participate in sheltered workshops, have disabilities that substantially limit one or more major life activities, such as self-care, learning, working, and brain function. 29 U.S.C. § 705(20)(B); 42 U.S.C. § 12102. They are qualified to participate in DRO’s system of
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programs and services, with or without reasonable modifications to DRO’s rules, policies, or practices. 29 U.S.C. § 705(20)(B); 42 U.S.C. § 12102.
46. The Rehabilitation Act prohibits discrimination against people with disabilities under any program or activity that receives federal financial assistance. 29 U.S.C. § 794(a) (“No otherwise qualified individual with a disability in the United States . . . shall . . . be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance”).
47. DRO is a program or activity receiving Federal financial assistance, and “agrees that the federal funds it receives pursuant to the Developmental Disabilities Assistance Act and other related provisions of federal law shall be maintained, expended and accounted for in accordance with all applicable federal and State law requirements.” Executive Order 2012-14K.
48. DRO has excluded Guardians, as well as all others who seek, or may seek, to live in an ICF or participate in sheltered workshops, from their participation in, and denial of, DRO’s services, including the provision of DRO’s P&A Requirements.
WHEREFORE, the Guardians respectfully request that the Court: A. Issue Declaratory Judgment finding that DRO is violating the Rehabilitation Act by excluding Guardians, as well as all others who seek, or may seek, to live in an ICF or participate in sheltered workshops, from their participation in, and their denial of the benefits of, DRO’s services, including its the provision of DRO’s P&A Requirements. B. Grant permanent, injunctive relief to remedy DRO’s violations of the Rehabilitation Act, including requiring DRO not to exclude Guardians, as well as all others who seek, or may seek, to live in an ICF or participate in sheltered workshops, from their participation in, and their denial of the benefits of, DRO’s services, including its the provision of DRO’s P&A
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Requirements. C. Award the Guardians their reasonable attorneys’ fees and costs pursuant to 29
U.S.C. § 794a, 42 U.S.C. § 1988, and any other applicable provision of law; and D. Grant any other relief which is necessary and proper to protect the rights of the
Guardians, as well as all others who seek, or may seek, to live in an ICF.
Respectfully submitted, /s/ Roger P. Sugarman Roger P. Sugarman (0012007) Robert G. Cohen (0041707) Kegler Brown Hill + Ritter A Legal Professional Association 1800 Capitol Square 65 East State Street Columbus, Ohio 43215 Telephone: (614) 462-5400 Facsimile: (614) 464-2634 Email: rsugarman@keglerbrown.com Email: rcohen@keglerbrown.com William Choslovsky (6224664 IL) Ginsberg Jacobs LLC 300 South Wacker Drive, Suite 2750 Chicago Illinois 60606 Telephone: (312) 660-2202 Facsimile: (312) 660-9612 wchoslovsky@ginsbergjacobs.com Attorneys for Intervenor-Guardians
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Case: 2:16-cv-00282-EAS-EPD Doc #: 326 Filed: 09/14/18 Page: 85 of 85 PAGEID #: 5505 CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing Crossclaims and Third-Party Complaint of Intervenor-Guardians was filed via the Court’s authorized CM/ECF system on this 14th day of September, 2018, which will send notification of such filing to all other parties to this action.
/s/ Roger P. Sugarman Roger P. Sugarman (0012007)
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 Case: 2:16-cv-00282-EAS-EPD Doc #: 332 Filed: 09/25/18 Page: 1 of 3 PAGEID #: 5517

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OmO
EASTERN DIVISION

PHYLLIS BALL, et al., Plaintiffs,
v.
JOHN KASICH, et al., Defendants.

Case No. 2:16-ev-282 CffiEF JUDGE EDMUND A. SARGUS, JR. Magistrate Judge Elizabeth Preston Deavers

ORDER
This matter came before the Court for a settlement conference on June 11 and 12, 2018.
At that conference, the parties first addressed the definition of the class, asking for clarification
from the Court. The class definition has been a disputed topic since the Court issued its decision granting in part the plaintiffs' request to certify a class under Ruie 23 of the Federal Rules of
Civil Procedure. (ECF No. 303.) The Court takes this opportunity to memorialize its
clarification of this issue made at the last conference it held in this case.
By way of background, the parties brought the disagreement as to the class definition to
the Court at a status conference held on May 2, 20 18. The Court memorialized that conference
in an order that clarified the class definition as follows: A. Class Definition In the parties' suggested agenda topics submitted to the Court, it was clear that there is a disagreement as to this Court's definition of the class it certified. In its decision on class certification, the Court narrowed the proposed class definition as follows: All Medicaid-eligible aduits with intellectual and developmental disabilities residing in the state of Ohio who, on or after March 31,

Case: 2:16-cv-00282-EAS-EPD Doc #: 332 Filed: 09/25/18 Page: 2 of 3 PAGEID #: 5518
2016, are qualified for home and community-based services, and, after receiving options counseling, express that they are interested in community-based services. 1. At the status conference, the Court clarified its class definition as
follows: a. "Interested in" means affirmatively state that they
want community-based services. b. "Options counseling" means the counseling that is
currently being utilized. 2. Thus, to be class members, the individuals:
a. Must be Medicaid-eligible adults with intellectual and developmental disabilities residing in the state of Ohio who, on or after March 31, 2016, are qualified for home and community-based services; and
b. Must have received options counseling; and c. Must have affirmatively stated that they want community-
based services, and have not had them provided. (ECF No. 309 at 1-2.)
At the start of the mediation on June 11, 2018, the parties again asked the Court to clarify the class definition. The Court explained that the issue ofthe sufficiency ofthe options counseling ''was not certified for class purposes." (Tr. at 3, ECF No. 323 1.) The class consists of individuals who already received the options counseling as it is provided by the defendants. The Court specified that the plaintiffs' claim that the defendants "failed to meaningfully inform" the plaintiffs "about feasible alternatives to institutional care" brought in the "Free Choice" claim was certainly a live claim, but with regard to
1 The Court notes that it permitted this transcript to be filed under seal because the parties engaged in confidential mediation at this conference. The Court herein does not reference any aspect ofthe conference that was confidential.
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regard to individually-named plaintiffs only. (/d.); (Compl. ~ ~ 219--220) ("Third Claim for Relief: Violation ofthe Social Security Act's "Free Choice" Provision under 42 U.S.C. § 1396n(c)(2)(B)&(C)").
IT IS SO ORDERED.

DATE

N . SARGUS, JR. NITED STATES DISTRICT JUDGE

3

 
 Case: 2:16-cv-00282-EAS-EPD Doc #: 370 Filed: 11/29/18 Page: 1 of 29 PAGEID #: 5823

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OIDO
EASTERN DIVISION

PHYLLIS BALL, et aL, Plaintiffs,
v.

Case No. 2:16-cv-282 ChiefJudge Edmund A. Sargus, Jr. Magistrate Judge Elizabeth P. Deavers

JOHN KASICH, et aL, Defendants.

OPINION AND ORDER This matter is before the Court for consideration ofPlaintiffs' Motion to Compel from Defendant DODD and Memorandum in Support (ECF No. 345) ("Motion to Compel"), Ohio Department of Developmental Disabilities' Memorandum in Opposition to Plaintiffs' Motion to Compel Discovery from Defendant DODD (Doc. 345) (ECF No. 349) ("Opposition"), and Ohio Department ofDevelopmental Disabilities' Supplement to Memorandum in Opposition to Plaintiffs' Motion to Compel Discovery from Defendant DODD (Doc. 345) (ECF No. 356) ("Supplemental Brief'). No reply was permitted. (ECF No. 337.) For the reasons that follow, the Motion to Compel is GRANTED IN PART AND DENIED IN PART.
I. A. Def"mition of the Class and Class Claims1
Plaintiffs Phyllis Ball, Antonio Butler, Caryl Mason, Richard Walters, Ross Hamilton,

1 "Plaintiffs' disputed discovery requests are relevant to the size and scope ofthe Plaintiff class[.]" (ECF No. 345 at 3.)

Case: 2:16-cv-00282-EAS-EPD Doc #: 370 Filed: 11/29/18 Page: 2 of 29 PAGEID #: 5824
and the Ability Center ofGreater Toledo (collectively, "Plaintiffs"f bring this class action on behalfofthemselves and other similarly situated individuals with intellectual and developmental disabilities against Defendants John Kasich (in his official capacity as Governor of Ohio), Kevin Miller (in his official capacity as Director ofOpportunities for Ohioans with Disabilities), John McCarthy (in his official capacity as Director ofthe Ohio Department of Medicaid), John Martin (in his official capacity as Director of the Ohio Department ofDevelopmental Disabilities ("DODD")), and the Ohio Association ofCounty Boards Serving People with Developmental Disabilities (collectively, "Defendants"). (ECF No. 1.) Plaintiffs allege that Ohio's administration, management, and funding ofits service system for people with intellectual and developmental disabilities such as themselves puts them at serious risk ofsegregation and institutionalization in Intermediate Care Facilities ("ICFs") in violation ofTitle II of the Americans with Disabilities Act ("ADA") and Section 504 ofthe Rehabilitation Act as interpreted by the United States Supreme Court's decision in Olmstead v. L.C., 527 U.S. 581 (1999), and the Social Security Act, 42 U.S.C. § 1396n(c)(2)(B) & (C). (!d.)
On March 30, 2018, the Court granted in part and denied in part Plaintiffs' Motion for Class Certification. (ECF No. 303.) Specifically, the Court revised the class definition as follows:
All Medicaid-eligible adults with intellectual and developmental disabilities residing in the state ofOhio who, on or after March 31, 2016, are qualified for home and community-based services, and, after receiving options counseling, express that they are interested in community-based services.
2 PlaintiffNathan Narowitz was originally named as a party in the Complaint hut later withdrew as a Plaintiffwithout prejudice to his rights to recover as a general member ofthe putative class. (ECF No. 81.)
2

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(Jd. at 22 (emphasis added).) In revising this definition, the Court specifically rejected certifying

a broad class to include, inter alias, individuals on waiting lists:
The Court concludes that the proposed "at risk" class members3 do not have homogenous interests for the same reasons the proposed class members above did not. That is. the class members who may want community-based services do not have homogenous interests with those class members who do want communitybased services. Likewise, some class members who are on the wait list want community-based services and some want services provided in Large ICFs. In a situation where there is limited funding, this not only reflects lack ofhomogenous interests, it indicates competing interests, which could actually harm certain members ofa broad Rule 23(b) class because ofthe lack of notice and opportunity for class members to opt out. Therefore, because the proposed class does not suffer a uniform harm that can be remedied with the same relief, certifying a broad class is inappropriate.

(ld. at 21-22 (emphasis added).)

On May 2, 2018, the Court clarified the class definition:

1. At the status conference, the Court clarified its class definition as follows:

a. "Interested in" means affirmatively state that they want community -based services.

b. "Options counseling" means the counseling that is currently being utilized.

2.

Thus, to be class members, the individuals:

a. Must be Medicaid-eligible adults with intellectual and developmental disabilities residing in the state of Ohio who, on or

3 Plaintiffs sought to defme a group of "at risk" class members, whom they identified as people with intellectual and developmental disabilities who are qualified for home and community-based services and who now, or in the future:
(1) apply for or are referred for admission to an ICF; (2) are on waiting lists for Medicaid home and community-based services and have either an aging caregiver, intensive needs, or an emergency, as defined by Ohio's current or future waiting list rule, or (3) have another immediate need which creates a substantial risk of harm, as determined by Ohio's current or future waiting list rule.
(ECF No. 283 at 2-3 (emphasis added).)
3

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after March 31, 2016, are qualified for home and community-based services; and

b. Must have received options counseling; and

c.

Must have affirmatively stated that they want community-based

services, and have not had them provided.

(ECF No. 309 at 1-2 (emphasis added).)

At a mediation beginning on June 11, 2018, the parties again asked the Court to clarify

the class definition. (ECF No. 332 at 2.) The Court later memorialized the clarification ofthe class as follows:

The Court explained that the issue ofthe sufficiency ofthe options counseling ''was not certified for class purposes." (Tr. at 3, ECF No. 323.) [footnote omitted] The class consists of individuals who already received the options counseling as it is
provided by the defendants. The Court specified that the plaintiffs' claim that the defendants "failed to meaningfully inform" the plaintiffs "about feasible alternatives to institutional care" brought in the "Free Choice" claim was certainly a live claim, but with regard to regard to individually-named plaintiffs only. (/d.);
(Compl. W 219-220) ("Third Claim for Relief: Violation of the Social Security
Act's "Free Choice" Provision under 42 U.S.C. § 1396n(c)(2)(B)&(C)").

(/d. at 2-3.)

While Plaintiffs have asked for reconsideration ofthis definition and clarification (ECF

No. 344), their request remains pending. Therefore, the definition and clarification above remain

the controlling class definition at this time.

B. Procedural History of Disputed Discovery Requests

On August 7, 2018, Plaintiffs propounded their Second Request for Production of

Documents ("RFP") (ECF No. 345-1) and Second Set ofInterrogatories ("ROG") (ECF No. 345-

2) directed to DODD. On September 7, 2018, DODD responded to these requests. (ECF Nos.

368-1, 368-2). Thereafter, the parties conferred regarding these requests and responses but

reached impasse on certain requests. (ECF No. 338 at 1.) The Court conducted a conference on

4

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October 2, 2018, and, after listening to the positions ofthese parties, determined that it was unable to resolve these disputes without the benefit ofseeing the formal discovery requests and responses as well as the parties' arguments as they relate to each disputed request. (Id.) The Court therefore ordered Plaintiffs to file a motion to compel, specifically advising that it would not assess fees or sanctions in connection with the filing of this motion. (Id.) In accordance with the Court's Order (id.), Plaintiffs filed their Motion to Compel (ECF No. 345), which DODD opposed (ECF No. 349). While no reply was permitted except upon further Order ofthe Court (ECF No. 338 at 1), DODD filed a supplement to its Opposition on October 29, 2018. (ECF No. 356.) This matter is now ripe for resolution.
II. "District courts have broad discretion over docket control and the discovery process." Pittman v. Experian Info. Sol., Inc., 901 F.3d 619, 642 (6th Cir. 2018) (citations omitted). '"It is
well established that the scope of discovery is within the sound discretion of the trial court."' Id. (quotingLavado v. Keohane, 992 F.2d 601,604 (6th Cir. 1993)). Federal Rule of Civil Procedure 26(b) identifies the acceptable scope ofdiscovery:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense ofthe proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(l); see also Fed. R. Civ. P. 33(a)(2) ("An interrogatory may relate to any matter that maybe inquired into under Rule 26(b)."), 34(a) ("A party may serve on any other party a request within the scope of Rule 26(b)[.]"). In short, "a plaintiffshould have access to information necessary to establish her claim, but [] a plaintiff may not be permitted to 'go fishing'; the trial court retains discretion." Anwar v. Dow Chem. Co., 876 F.3d 841, 854 (6th
5

Case: 2:16-cv-00282-EAS-EPD Doc #: 370 Filed: 11/29/18 Page: 6 of 29 PAGEID #: 5828
Cir. 2017) (citing Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007)); see also Superior Prod. P 'ship v. Gordon Auto Body Parts Co., Ltd., 784 F.3d 311, 320-21 (6th Cir. 2015) ("In sum, '[a]lthough a plaintiffshould not be denied access to information necessary to establish her claim, neither may a plaintiffbe permitted to 'go fishing' and a trial court retains discretion to determine that a discovery request is too broad and oppressive."' (quoting Surles ex rel. Johnson, 474 F.3d at 305)).
"[T]he movant bears the initial burden ofshowing that the information is sought is relevant." Prado v. Thomas, No. 3:16-cv-306, 2017 WL 5151377, at *1 (S.D. Ohio Oct. 19, 2017) (citing Gruenbaum v. Werner, 270 F.R.D. 298, 302 (S.D. Ohio 2010)). If the movant makes this showing, ''then the burden shifts to the non-movant to show that to produce the information would be unduly burdensome." Id. (citing 0 'Malley v. NaphCare, Inc., 311 F.R.D. 461, 463 (S.D. Ohio 2015)); see also Fed. R. Civ. P. 26(b)(1) advisory committee's note to 2015 amendment (stating that a party claiming undue burden or expense "ordinarily has far better information-perhaps the only information-with respect to that part ofthe determination" and that a ''party claiming that a request is important to resolve the issues should be able to explain the ways in which the underlying information bears on the issues as that party understands them").
III. Plaintiffs seek an order compelling DODD to produce discovery responsive to RFPs 1, 2, 3, 18, 20, 22, 28, and 29, as well as ROGs 1, 2, 4, 10, 12, and 13. (ECF No. 345.)4 Except as
4 At the beginning and end oftheir Motion to Compel, Plaintiffs identify ROG 11 as disputed requiring an Order (ECF No. 345 at 2, 15) but the body ofthe Motion does not address this ROG (see generally id.). In addition, although not identified in the beginning and end of their Motion as a request requiring an Order, Plaintiffs argue in the body of their Motion that RFP 28 requires an Order. (Id. at 2, 13, 15; see also Opposition, ECF No. 349 at 32 (addressing
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Case: 2:16-cv-00282-EAS-EPD Doc #: 370 Filed: 11/29/18 Page: 7 of 29 PAGEID #: 5829
otherwise noted, these RFPs and ROGs cover a response period of July 16, 2016 to the present.
(ECF No. 345-1 at 6; ECF No. 345-2 at 6.) The Court now considers in turn each category of
requested information identified in the Motion to Compel.
A. Information related to new waiting list rule (RFPs 1, 2, 3; ROGs 1, 2)
Plaintiffs seek an order compelling DODD to produce information related to a "new" (or
''revised") waiting list rule, including documents related to the assessment performed or to be
performed under this rule and documents related to the development, design, and construction of
this rule and resources allocated to implement it. Specifically, the RFPs related to this category
are as follow:
1. Documents relating to the design, implementation and monitoring of the revised waiting list management process and Ohio Admin. Code 5123-9-04 (Home and Community- Based Services Waivers- Waiting List), including the creation, management and oversight ofthe transitional list ofindividuals waiting for home and community-based services, the pace of assessments, and the new individual waiver allocation process.
2. Documents relating to the County Boards' implementation of Ohio Admin. Code 5123-9-04, including resources made available to complete the waiting list assessment tool for individuals on the transitional list, provide counseling on service options, develop individual service plans, and coordination of waiver enrollment and/or access to alternative, locallyfunded services for those with current or immediate needs.
3. Documents relating to the application ofemergency status as defined under Ohio Admin. Code 5123:2-1-08(B)(5) and (D)(9), from July 1. 2015 to the present, including the number ofpersons found to meet this criteria, the date on which that determination was made, the length oftime individuals waited for waiver slots, the number of individuals who did not receive waiver services, the number of individuals who ultimately enrolled in waiver services, the date when those individuals were enrolled, and the type of waiver they received.
(ECF No. 345-1 at 8 (emphasis added).)
RFP 28).) Based on this record, the Court will address RFP 28 but not ROG 11 in this Opinion and Order.
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The ROGs related to this category are as follow: 1. Describe the new waiting list information technology system, including its
functionality, reporting capacity, and ability to generate data and reports regarding the ongoing assessment ofindividuals on the transitional waiting list and the outcome ofthose assessments. 2. Describe the specific steps being taken to ensure County Boards of Developmental Disability have the training, staffing capacity and resources required to carry out the functions described in Ohio Admin. Code § 51239-04, including completion ofthe waiting list assessment tool, the provision of options counseling, individual service planning, enrollment in waiver services, and access to alternative community services. (ECF No. 345-2 at 8.) Plaintiffs contend that these discovery requests are "directly relevant to the development of factual and expert evidence for Plaintiffs' ADA and 504 claims." (ECF No. 345 at 4.) Specifically, Plaintiffs believe that information regarding implementation ofthe waiting list rule will identify current and future class members. (!d. (explaining further that, inter alia, "individuals found to have immediate needs will receive information about their options to
receive ICF, waiver or locally funded services, as well as assistance in 'identifying and accessing
alternative services."' (citation omitted)).) Plaintiffs argue that this discovery is appropriate because "the Court's class definition is not limited to individuals already in ICFs, but rather includes all individuals with intellectual and developmental disabilities who 'want to utilize community-based services, whether they are currently in an ICF or in the community and wish to move to another setting in the community."' (!d. at 5 (quoting ECF No. 303 at 23).) Plaintiffs go on to argue that they "should be able to compare the outcome of this new assessment process, and specifically the number ofindividuals determined to have immediate needs, with the number ofindividuals previously determined to meet emergency status under the previous waiting list rule." (Id.)
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DODD disagrees, responding that the requested information is outside the scope ofthe Court's certified class, not proportional to the needs ofthe case as required by Federal Rule of Civil Procedure 26(b), and that RFP 3, with its long time-frame, imposes an undue burden. (ECF No. 368-1 at 4; ECF No. 368-2 at 5---{).) DODD specifically argues that the requested information is not relevant to the identification of class members, that Plaintiffs' justifications rely on arguments previously rejected by this Court, and that responding to these requests would require at least 1,778 hours of attorney review at a taxpayer cost in excess of$63,765. (ECF No. 349 at 13-18 (citing, inter alia, Affidavit of Jeffrey D. Roush, ECF No. 349-2, at~ 6, 8 ("Roush Affidavit").)
DODD's arguments are well taken. As set forth above, the Court clarified on May 2, 2018, that class members
a. Must be Medicaid-eligible adults with intellectual and developmental disabilities residing in the state of Ohio who, on or after March 31, 2016, are qualified for home and community-based services; and
b. Must have received options counseling; and c. Must have affirmatively stated that they want community-based
services, and have not had them provided. (ECF No. 309 at 1-2 (emphasis added).) The Court specifically explained on the same date that "options counseling" "means the counseling that is currently being utilized." (/d. at 1 (emphasis added); see also ECF No. 332 at 2 (explaining further that "[t]he class consists of individuals who already received the options counseling as it is provided by the defendants") (emphasis added).) The "new" or "revised" waiting list that is the subject ofthese disputed discovery requests was not "currently being utilized" when the Court clarified the scope of the class on May 2, 2018. (CJ. Ohio Admin. Code§ 5123-9-04; ECF No. 345-1 at 8; ECF No. 345-2 at 5---{), 8.) Accordingly, options counseling "currently being utilized" as ofMay 2018 does not include
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Case: 2:16-cv-00282-EAS-EPD Doc #: 370 Filed: 11/29/18 Page: 10 of 29 PAGEID #: 5832
the "new" or "revised" waiting list assessment. It therefore follows that the requested information is not relevant to the identification ofclass members.
Moreover, as noted earlier and as DODD points out (ECF No. 349 at 15), the Court, when ruling on Plaintiffs' motion for class certification, previously rejected Plaintiffs' argument that a waiting list is the best method of identifying class members. (See BCF No. 303 at 21-22 (reasoning, inter alia, that individuals on the wait list have competing interests because some individuals want community-based services and other individuals want services provided in Large ICFs).) This conclusion therefore undermines Plaintiffs' present contentions that information regarding the "new" or "revised" waiting list is relevant to identifying class members.
Plaintiffs go on to argue that information regarding the application of emergency status (RFP 3) is relevant because Plaintiffs should be able to compare the outcome ofthe new waiting list assessment with "the number of individuals previously determined to meet emergency status under the previous waiting list rule." (ECF No. 345 at 5.) However, having rejected Plaintiffs' relevancy arguments regarding information regarding the ''new'' or "revised" waiting list, the Court finds that Plaintiffs' request for information relating to the application of emergency status (RFP 3) for comparison is similarly unavailing.
Finally, the Roush Declaration establishes that locating and producing the requested information would be unduly burdensome at significant cost to taxpayers. (See Roush Declaration,~~ 6, 8.) Based on this record and considering the relevant factors under Rule 26(b)(l), the likely benefit ofthe requested information does not outweigh the burden and expense in this matter and is not proportional to the needs of the case. Fed. R. Civ. P. 26(b)(l); Anwar, 876 F.3d at 854; Superior Prod P'ship, 784 F.3d at 320--21.
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Case: 2:16-cv-00282-EAS-EPD Doc #: 370 Filed: 11/29/18 Page: 11 of 29 PAGEID #: 5833
For all ofthese reasons, as it relates to RFPs 1, 2, and 3, and ROGs 1 and 2, the Motion to Compel is DENIED. B. Information related to the identity ofindividuals residing in state-operated ICFs
(ROG13)
Plaintiffs seek an order compelling DODD to "[i]dentify individuals who, as ofthe date ofthis request, reside in a Developmental Center [("DC"), which is a state-run ICF], their guardians, as appropriate, and their current length ofstay." (ECF No. 345-2 at 10.) Plaintiffs contend that case authority authorizes discovery of confidential information, including confidential health-protected information, about both putative class members and non-class
members as part of developing evidence for class claims in discrimination classes. (ld. at 8-9
(citations omitted).) In addition, according to Plaintiffs, the protective order entered in this action (ECF No. 72) specifically contemplated this type ofdiscovery. (ECF No. 345 at 9.) Plaintiffs further explain that central to their claims and to this litigation are "the size and scope ofthe Plaintiffclass, the outcome of their individual options counseling process, and the extent to which they may be experiencing unnecessary segregation[.]" (Jd.) Plaintiffs contend that the requested discovery is proportional to the needs ofthe case because the information is otherwise inaccessible to them and there is no undue burden where the individuals reside in facilities administered, overseen, and operated by DODD. (ld. at 9-10.) Finally, Plaintiffs represent that no further disclosure ofconfidential information would be requested ifindividuals choose not to communicate with Plaintiffs, or in doing so, confirm their opposition to community living. (ld. at 10.)
Plaintiffs' arguments are not well taken. As an initial matter, every individual currently residing in a DC is not part of the class as the Court previously clarified. (See, e.g. , ECF No. 332 at 2 (reiterating that to be class members, individuals must be "Medicaid-eligible adults with
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Case: 2:16-cv-00282-EAS-EPD Doc #: 370 Filed: 11/29/18 Page: 12 of 29 PAGEID #: 5834
intellectual and developmental disabilities residing in the state of Ohio who, on or after March 31, 2016, are qualified for home and community-based services" who "received options counsel" and who "affirmatively stated that they want community-based services, and have not had them provided") (emphasis added).) Specifically, while four individuals currently living in DCs have requested a waiver and are transitioning to the community, none of the remaining DC residents (approximately 400 individuals) has expressed an interest in a waiver. (ECF No. 356 at 2;
Supplemental Affidavit of Ginnie Whisman, ECF No. 356-1, 1M[ 2-5 ("Supplemental Whisman Affidavit")5 (averring further that 433 long-term residents lived in DCs as of October 22, 2018;
that since July 2017, fourteen residents have moved to another ICF and eighteen residents have requested and been enrolled on a waiver).) Moreover, DODD has represented that, in response to Plaintiffs' discovery requests, it will identify these individuals who have requested and received a waiver. (ECF No. 356 at 2.) In short, the present record reflects that Plaintiffs will receive (or have already received by this date) the identities of these individuals who fall within the class definition.
While Plaintiffs nevertheless insist that they "are entitled to test" DODD's sworn statements regarding the state-operated ICF residents who have received options counseling and elected to remain in their ICFs (ECF No. 345 at 8), their cited cases do not justify the broad production ofnon-parties' confidential information in this action. DODD correctly distinguishes four of those cases (all outside ofthis circuit) as Title VII cases that authorized discovery about non-parties only in instances distinct from this action where the legal claims required
s Ms. Whisman is the Deputy Director for DODD's Division ofResidential Resources. (Id. at~ 1.) Her duties include management ofthe state-operated DCs. (Id.) DODD filed the Supplemental Whisman Affidavit after it became aware of modest changes to earlier statistics provided to the Court and Plaintiffs in July 2017. (ECF No. 356 at 2.)
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Case: 2:16-cv-00282-EAS-EPD Doc #: 370 Filed: 11/29/18 Page: 13 of 29 PAGEID #: 5835
consideration ofsimilarly-situated individuals (ECF No. 349 at 20-21 ). See Rich v. Martin Marietta Corp., 522 F.2d 333, 342-45 (lOth Cir. 1975) (authorizing discovery regarding plantwide job and promotional policies in Title VII case because "there were no other means of ascertaining whether there was merit in the allegations ofthe plaintiffs" and "it was grossly unjust to allow the defendant company to utilize plant-wide statistics involving large classes of people plus statistics of other employers in this five-county area, while at the same time restricting the plaintiffs to the narrowest possible scope"); Kennicott v. Sandia Corp., No. 17-cv188, 2018 WL 2206880 (D. N.M. May 14, 2018) (authorizing discovery of information about non-parties who had previously filed gender discrimination complaints against defendant because plaintiffs needed to establish a culture ofdiscrimination against similarly-situated individuals as part of their Title VII claim); Lang v. lntrado, Inc., No. 07-cv-00589, 2007 WL 3407366, at *4 (D. Colo. Nov. 13, 2007) (authorizing discovery of information regarding comparitors, including qualifications, compensation, and personnel files (excluding social security numbers, medical information, and tax information) where plaintiff"must first establish how her comparitors were treated before she can establish disparate treatment"); Morgenstern v. Int'/ All. ofTheatrical Stage Emp., Loca/16, No. C 05-03156,2006 WL 2385233 (N.D. Cal. Aug. 17, 2006) (concluding that names, gender, income, and benefits of similarly-situated employees was discoverable and relevant to one of the required elements of the plaintiff's Title VII claim, i.e., whether those individuals were treated more favorably than the plaintiff).
The scope ofthe class and the discovery authorized in the two remaining cases cited by Plaintiffs, class actions against the State oflllinois involving the rights ofindividuals with developmental disabilities, are also distinguishable and do not warrant the broad confidential information sought in the present action. (ECF No. 345 at 9 (citing Ligas v. Maram, No. 05 C
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Case: 2:16-cv-00282-EAS-EPD Doc #: 370 Filed: 11/29/18 Page: 14 of 29 PAGEID #: 5836
4331,2007 WL 4225459 (N.D. ill. Nov. 27, 2007) and Williams v. Blagojevich, No. 05 C 4673, 2008 WL 68680 (N.D. ill. Jan. 2, 2008)).) For example, in Ligas, the court defined the class as individuals with cognitive impairment and/or other developmental disabilities who, among other things, '~ith appropriate supports and services, could live in the community and who would not oppose community placement[.]" Ligas, 2007 WL 4225459, at *I. The Ligas court initially held that the plaintiffs' initial subpoenas seeking the "complete file" of each resident from a randomly selected sample of 100 residents were overly broad and unenforceable and ''were likely to gather much irrelevant information and that their seemingly limitless scope would make compliance unduly burdensome." Id. at *1- 3. After the plaintiffs narrowed the scope oftheir request to categories of documents identified as relevant by an expert, 76 of the 78 ICFs stipulated to producing responsive documents. ld. at *2. The Ligas court later granted plaintiffs' motion to compel the remaining two ICFs to respond to the amended subpoenas because, inter alia, the narrowed scope of requested documents was "sufficiently tailored" to gather relevant information and "may yield highly probative evidence to support or disprove Plaintiffs' claim that there are numerous individuals currently living in large institutions who are willing and able to live in a community setting." ld. at *4 (limiting the scope ofthe amended subpoenas further by reducing the responsive period from three years to five years). The Ligas court therefore authorized discovery directly related to subjective criteria to be used in identifying putative class members. !d. at *2 (describing the five categories of documents, including documents related to each resident's treatment program, treatment schedule, behavioral support plans or intervention programs).
Conversely, in the instant case, the Court has clearly defined the scope of the class through objective criteria and DODD has previously disclosed the identity ofthose individuals
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Case: 2:16-cv-00282-EAS-EPD Doc #: 370 Filed: 11/29/18 Page: 15 of 29 PAGEID #: 5837
(with an updated list ofsuch individuals forthcoming). (ECF No. 332 at 2 (defining class members as individuals who, among other things, "affirmatively stated that they want community-based services, and have not been provided" and clarifying further that Plaintiffs' "Free Choice" claim was live as to only individually-named Plaintiffs); ECF Nos. 273-5, 273-7 (affidavits regarding individuals living in a DC who were offered and interested in waivers); Supplemental Whisman Affidavit (updating such list ofindividuals)).) As previously noted and as discussed in more detail below, every individual currently residing in a DC is not part ofthe class and therefore the confidential information requested by Plaintiffs is not highly probative to
Plaintiffs' class claims. (See id.; ECF No. 345-2 at 8-9) (contending that Plaintiffs need to
obtain the names and addresses of all individuals currently residing in ICFs "as part of developing evidence for class claims").) Moreover, Plaintiffs do not limit the scope oftheir request to a randomly selected sample size or provide any protection for DC residents to refuse to provide their confidential information in the first instance. (See ROG 13; ECF No. 345 at 910 (representing only that "no further disclosure of confidential information is requested'' if DC "individuals choose not to communicate with Plaintiffs, or in so doing confirm their opposition to community living").)
Similarly, in Williams, the court used subjective criteria in certifying a Rule 23(b)(2) class oflllinois residents who "(a) have a mental illness; (b) are institutionalized in a privately owned Institution for Mental Diseases ["IMDs"]; and (c) with appropriate supports and services
* may be able to live in an integrated community setting." Williams, 2008 WL 68680, at 1
(internal quotation marks omitted). The Williams plaintiffs' subpoenas directed to non-party IMDs sought access to residents' records Oater clarified to include only those ''readily available at the IMD") and/or the opportunity to interview randomly selected residents, excluding any
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Case: 2:16-cv-00282-EAS-EPD Doc #: 370 Filed: 11/29/18 Page: 16 of 29 PAGEID #: 5838
resident who has a guardian. Id. at *1-2, 5. The plaintiffs' retained experts could then review these records and/or conduct interviews in order "to make generalized determinations regarding what opportunities for community placement are being provided, whether residents would qualify for such placements, and whether residents would be interested in such placements." Id. at *1. The Williams court recognized that "some or many" ofthese individuals will not be class members "because they will not satisfy the criterion ofbeing able to live in an integrated community setting with appropriate supports and services." Id. However, the court went on to grant in part and deny in part the IMDs' motions to quash, noting the proposed limitations on documents to be produced, that only residents who consent would be interviewed, and that the plaintiffs' three experts have substantial training and vast experience interviewing mentally ill persons and that these experts opined that "their interviews are likely to produce usable material for their intended purpose[,]" id. at *4-6, i.e., for the purpose of making " generalized determinations regarding what opportunities for community placement are being provided, whether residents would qualify for such placements, and whether residents would be interested in such placements." Id. at *1. In short, as with Ligas, Williams presents a distinct class definition, factual posture, and discovery request that does not encompass the discovery of the identities and contact information ofall individuals currently residing in ICFs-which include individuals who have declined waivers and are therefore expressly out of the objectively defined class sought in this action.
Accordingly, as it relates to ROG 13 as presently formulated, the Motion to Compel is DENIED.
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C. Information related to options counseling in state-operated ICFs (RFP 22) Plaintiffs seek an order compelling production information relating to the options
counseling process used in state-operated ICFs: 22. Documents relating to the delivery ofoptions counseling to developmental center residents, including the process for recording individuals' interest in or opposition to community services, how often community services are offered, who provides information and counseling regarding service options, the number ofpeerto-peer or family-to-family supports offered/provided, the number of community provider visits offered/provided, and how DODD/DC [developmental center] staff address concerns expressed by individuals or guardians regarding discharge to community-based services.
(ECF No. 345-1 at 12.) Plaintiffs contend that their class claims and the class definition include individuals
residing in state-operated ICFs and that there are over 650 such individuals. (ECF No. 345 at 6 (citing ECF No. 273 at 17).) According to Plaintiffs, Defendants have acknowledged that they currently provide options counseling in these settings and, on prior occasions, Defendants have represented that none of the 471long-term residents has any interest in community services. (Id. at 6--7 (citations omitted).) Plaintiffs argue that they should be able to discover information regarding this ''unsupported contention, especially given the number ofindividuals served in state-operated ICFs, the potential for those individuals to change their mind, and the importance oftheir expressed preferences to determining current and future class membership." (!d. at 7.) Plaintiffs further argue that this information, which is exclusively in Defendants' possession, is relevant to assessing their claims of unnecessary segregation under the ADA and Section 504 because the size of the class (and the extent to which potential class members would choose integrated services after receiving options counseling) will impact ''the need for scope of classwide relief." (Id.)
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Plaintiffs' arguments are not well taken. As a preliminary matter, the information DODD provided to Plaintiffs regarding DC residents and waivers was in the form ofsworn affidavits. Specifically, DODD's Deputy Director for the Division of Residential Resources has averred under oath statements regarding residents at DCs and their preference for conununity-based services. (ECF No. 273-5 ("First Whisman Affidavit") and Supplemental Whisman Affidavit.) Similarly, DODD's Residential Resource Administrator's sworn affidavit provides additional information ("First Whisman Affidavit") regarding counseling, waivers, and the specific information provided to residents, guardians, and their families. (ECF No. 273-7 ("Lawson Affidavit").)
In addition, after DODD filed its Opposition to the Motion to Compel, it filed a Supplemental Brief, updating its 2017 statistics. (ECF No. 356 and Supplemental Whisman Affidavit,~ 2-5 (averring that 433 long-term residents lived in DCs as of October 22, 2018; that since July 2017, fourteen residents have moved to another ICF and eighteen residents have requested and been enrolled on a waiver; and that four individuals presently are interested in a waiver and planning is underway for transition and enrollment onto a waiver).) The Court finds that this information does not constitute an "unsupported contention[.]" (ECF No. 345 at 7.)
Moreover, to the extent that RFP 22 may be relevant to Plaintiffs' claims, DODD has represented under oath that responding to this request is unduly burdensome. (ECF No. 349 at 24-25; Roush Affidavit,~ 6--8.) Specifically, DODD explains that Plaintiffs' revised search terms produced a report of52,716 documents totaling 34.84 GB, at a cost to taxpayers of at least $36,901 .20, to review these documents. (Id.) After considering this record and the relevant factors under Rule 26(b)(1), the Court is not persuaded that the likely benefit ofthe requested information outweighs the burden and expense in this matter or that it is proportional to the
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needs of the case. Fed. R. Civ. P. 26(b)(l); Anwar, 876 F.3d at 854; Superior Prod P'ship, 784 F.3d at 320-21. As it relates to RFP 22 as presently formulated, the Motion to Compel is therefore DENIED. D. Information related to aggregate assessment data for state-operated ICF residents
(RFP20) Plaintiffs seek an order compelling DODD to respond to RFP 20, which they proposed modifying as follows in their Motion to Compel: "Documents relating to aggregate fimctional assessment results for state-operated developmental center residents, including how those assessment results are used to determine appropriate level of care." (ECF No. 345 at 10 (explaining that they learned during the meet and confer process that "the specific assessment tool referenced in RPD 20 is only used in private ICFs" and that "state ICF residents are administered what is known as a comprehensive functional assessment tool, and which is unrelated to funding"); compare with ECF No. 345-1 at 12 (stating RFP 20 as initially formulated: "Documents relating to aggregate IAF/ODDP assessment results for state-operated developmental center residents, including how those results are used to determine appropriate level ofcare for individuals and fimding for ICF placements.").) Plaintiffs contend that the requested information is relevant to individual residents' "ability to benefit from integrated community services[,]" to Plaintiffs' claims "that individuals at the ICF level of care could also be safely served in the community with appropriate supports[,]" and "to rebutting allegations by the Guardian-Intervenors that individuals in large ICFs have needs that cannot otherwise be met in less restrictive service settings." (ECF No. 345 at 10.) Plaintiffs' arguments are not well taken. As DODD points out (ECF No. 349 at 25), Plaintiffs rationale presupposes that these individuals want community-based services.
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However, with some exceptions previously discussed and as updated by DODD, the individuals currently residing in DCs do not want community-based services (see Supplemental Whisman
Affidavit, W2-5) and therefore fall outside the scope of the defined class. (ECF No. 332.)
Considering this as well as the reasons previously discussed with regard to ROG 13 and RFP 22, the present record does not persuade the Court that the likely benefit ofthe requested information outweighs the burden and expense in this matter or that it is proportional to the needs of the case. Fed. R. Civ. P. 26(b)(l).
Accordingly, as it relates to RFP 20 as originally issued and revised, the Motion to Compel is DENIED. E. Information related to individuals residing in privately-operated ICFs (ROG 10)
Plaintiffs seek an order compelling DODD to "[i]dentify the individuals/guardians who were contacted by, or received options counseling from, CareStar or APSI, and the outcome of these contacts/counseling sessions." (ECF No. 345-2 at 9.) Plaintiffs explain that this interrogatory includes individuals "who originally expressed that they 'may be' interested in community services, but for whom there was little or no follow-up after their initial contact with options counselors" and "individuals whom CareStar was unable to contact in person, such that their preference for community living is unknown." (ECF No. 345 at 11.) Plaintiffs contend that they have a right "to discovery that may identify potential class members and their preferences" and "a right to test Defendants' assertions regarding when and how class membership is determined, based on currently utilized options counseling." (Id.)
For the reasons previously discussed at length herein, the Court disagrees. Briefly, class members "[m]ust have affirmatively stated that they want community-based services, and have not had them provided." (ECF No. 309 at 1-2; ECF No. 332 at 2 (clarifying further that ''the
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Case: 2:16-cv-00282-EAS-EPD Doc #: 370 Filed: 11/29/18 Page: 21 of 29 PAGEID #: 5843
issue of the sufficiency ofthe options counseling 'was not certified for class purposes'" (citing ECF No. 323 at 3).) The Court has explained that this class definition excludes individuals who say ''no" to, or "may be" interested in, community-based services. (ld.; ECF No. 303 at 18-22 (explaining why, inter alia, the Court declined to certify a class including individuals who "may be" interested in a waiver in the future).) Plaintiffs' reasons for insisting on this information unrelated to the defined class is therefore not well taken.
Moreover, DODD requests that it produce only the following information in response to ROG 10:
(1) the identities and contact information for all individuals who have Wldergone options coWlseling and affirmatively requested commWlity-based services; and (2) the APSI and CareStar aggregate counseling summary reports detailing the total number of individuals receiving counseling, the number affirmatively requesting community-based services, the number declining community-based services, the number saying "may be" to commWlity-based services, and the number of people who declined to return phone calls from counselors. (ECF No. 349 at 28 (emphasis added); see also id. at 26.) The Court finds that the proposed production is sufficiently responsive to ROG 10 while consistent with the scope ofthe defined class. Accordingly, to the extent ROG 10 seeks information beyond the above proposed response, the Motion to Compel is DENIED. F. Information related to individuals residing in eight-bed ICFs (ROG 12) Plaintiffs also seek an order compelling DODD to "[i]dentify the individuals who, as of the date of this request, reside in an ICF with 8 beds, their guardians, as appropriate, and their current length of stay." (ECF No. 345-2 at 10.) According to Plaintiffs, there are approximately 1,300 individuals residing in ICFs with eight beds and these individuals receive options counseling as part oftheir annual service planning meeting. (ECF No. 345 at 11-12 (citations omitted).) Plaintiffs contend that they "have no way to determine the number ofpotential class
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Case: 2:16-cv-00282-EAS-EPD Doc #: 370 Filed: 11/29/18 Page: 22 of 29 PAGEID #: 5844
members in eight-bed ICFs" because there is no public reporting of the outcome of these meetings. (!d. at 12.) Plaintiffs argue that contact information for these individuals residing in eight-bed ICFs is relevant to "Plaintiffs' underlying ADA and Section 504 claims, and to their ability gather evidence regarding the extent ofpotentially discriminatory segregation, and unmet demand for community-based services" as well as "relevant to the size and scope ofthe Plaintiff class, and the extent to which systemic injunctive relief is required to remedy class claims." (!d.)
DODD disagrees, arguing that the Court, when ruling on the motion for class certification, recognized that the certified class did not include all individuals in eight-bed ICFs. (ECF No. 349 at 29-30 (citing, inter alia, ECF No. 303 at 15 n.2).) DODD explains that this is because the Court requires that class members receive options counseling and the only eight-bed ICF residents who have received options counseling are those who have the Ohio public guardian's office ("APSI") as a guardian. (Id. at 29 (citing, inter alia, Affidavit of Lori Horvath, ECF No. 273-3, ~ 11 ); see also ECF No. 345 at 12 n.7 (recognizing that individuals in eight-bed ICFs who have APSI as a guardian receive options counseling as part of an agreement with the State of Ohio).) DODD further contends that ROG 12 is flawed because it does not ask for the annual assessment outcome ofindividuals residing in eight-bed ICFs. (ECF No. 349 at 30.) DODD also challenges Plaintiffs' assertion that it needs the information requested in ROG 12 to identify class members, arguing that the Court previously determined that Plaintiffs did not seek class certification for all individuals in eight-bed ICFs and that discovery outside ofthe parameters ofthe Court's objective criteria for class membership is irrelevant. (!d. at 29--30.) DODD goes on to explain that even ifthe information were relevant, the burden ofsearching for and producing the information is unduly burdensome and disproportionate to the needs ofthis case. (ld. at 30-32.)
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DODD's arguments are well taken. In ruling on Plaintiffs' motion for class certification,
the Court specifically stated that it did not interpret Plaintiffs' certification request to include all residents in eight-bed ICFs:
The Ohio Defendants add "residents ofeight-bed ICFs" as a fourth category. (Ohio Deft.' Supp. Opp. at 28, ECF No. 291.) However, the Ohio Defendants admit that they are ''uncertain whether, and to what extent, these people are in or out of this proposed class" because, while Plaintiffs ''repeatedly suggest they seek to represent such people" the definition ofthe class requires an ICF resident to have "'receiv[ed) options counseling' and then expressed at least some interest in waivers." (!d. at 32.) The Court does not interpret Plaintiffs' request to encompass all residents of Large ICFs [defined onp. 1 ofOpinion and Order as ICFs witheightormore beds]. Thus, the Court will not address the Ohio Defendants' arguments related to this category. (ECF No. 303 at 15 n.2 (emphasis added).) Accordingly, ROG 12, in requesting the identity of individuals residing in eight-bed ICFs, their guardians, and their current length of stay, seeks information outside ofthe class defmition that is not relevant to Plaintiffs' claims. Even if it were relevant to Plaintiffs' claims, the Court is not persuaded that the burden of producing this information outweighs its likely benefit. Fed. R. Civ. P. 26(b)(l). There are approximately 160 eight-bed ICFs with about 1,300 residents. (ECF No. 345 at 11-12; ECF No. 349 at 31.) The annual assessment results for each such individual is outside ofDODD's possession. (ECF No. 349 at 31.) Instead, it is stored at each ofthe 160 ICFs, requiring DODD to request that each ICF pull the information and provide it to DODD. (Id.) DODD further represents that the length of stay information is difficult to compile because "ICFs and DODD do not necessarily maintain their data in this manner." (!d.) Moreover, some of these individuals who have APSI as a guardian will have said "no" or "may be" to community-based services, excluding them from the scope ofthe objectively defined class. (ECF No. 303 at 18-22; ECF No. 332 at 2.)
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For these reasons, the Court concludes that DODD's proposed production ofthe following information sufficiently responds to ROG 12 in light ofthe scope of the class and interests ofRule 26(b)(1):
(1) only the identities of the individuals affinnatively requesting community-based services after undergoing APSI counseling; and (2) the aggregate numbers detailing the total number of individuals receiving APSI counseling, the number affirmatively requesting community-based services, the number declining community-based services, and the number saying ''may be" to community-based services. (ECF No. 349 at 32.) Accordingly, to the extent ROG 12 seeks information beyond the above proposed response, the Motion to Compel is DENIED. G. Information related to alleged abuse, neglect, and treatment failures in private ICFs (RFP28) Plaintiffs next seek an order compelling DODD to produce "[d]ocuments relating to alleged regulatory, contractual or licensing violations in private ICFs concerning inadequate conditions or service provision, abuse and neglect, or the failure to provide active treatment, and any resulting investigations, findings, or corrective measures including suspension of admissions, license revocations, or facility closures." (ECF No. 345-1 at 13.) Plaintiffs contend that this information regarding the health and safety ofcurrent and prospective class members residing in private ICFs is relevant because "individuals whose needs are not being met in the ICF, or who are subject to abuse and neglect, are likely to express an interest in community alternatives." (ECF No. 345 at 13.) Plaintiffs argue that the requested information is also relevant to "rebutting Guardian-Intervenors' claims that the ICF system is contracting inappropriately, as opposed to reductions in capacity and facility closures which result from State investigations finding dangerous or inadequate care." (Id.) Plaintiffs go on to argue that this
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Defendants have not said that the number ofviolations, resulting investigations, or corrective actions are so significant as to be wtduly burdensome to produce and any individual information produced is covered by the Protective Order (ECF No. 72). (/d.)
The Court is persuaded that the requested information is relevant to at least rebutting the Guardian-Intervenors' claims. While DODD contends that the Court should deny the Motion to Compel as to this request because RFP 28 seeks information about certification and licensure reviews that is publicly available (ECF No. 349 at 33), the Court wtderstands the request to seek information beyond such reviews that is not publicly available. DODD next argues that even if relevant, ''the request as written is not the most proportionate method to achieve this information." (/d.) However, nothing in DODD's Opposition persuades this Court that responding to RFP 28 would impose an undue burden or is disproportionate to the needs ofthis case. See Fed. R. Civ. P. 26(b)(l).
Accordingly, as it relates to RFP 28, the Motion to Compel is GRANTED as follows: The parties are directed to confer on a proposed timeline for DODD to produce the requested information. The parties are ADVISED that they should be prepared to update the Court as to the status of these discussions and forthcoming production at the next scheduled conference. The parties are REMINDED to exhaust all extra-judicial efforts before asking the Court to address any dispute related to RFP 28. H. Information related to funding ofICF programs and state ICF rate redesigns (RFP
18) Plaintiffs also seek an order compelling DODD to produce the following: 18. Documents relating to the rationale for, and implementation of, ICF reimbursement redesign, including communications related to House Bill 24 ofthe 132 General Assembly (2018), and presentations, data, communications, minutes, recommendations, assessments, and reports authored by or exchanged with the
25

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following entities: PCG Health, the ICF reimbursement workgroup, the ICF work group, and the ICFIMR Medicaid rate group. (ECF No. 345-1 at 11.) Plaintiffs contend that "it is clear" that Defendants "intend to raise affumative defenses to the Plaintiffs' ADA claims, including that Plaintiffs' requested system modifications cannot be achieved without fundamentally altering the existing service system." (ECF No. 345 at 14 (citing Defendants' Brief in Opposition to Plaintiffs' Motion for Class Certification, ECF No. 273, at 7, 44) (referring to public funding).) According to Plaintiffs, funding ofthe ICF system is relevant to rebutting Defendants' claims of fundamental alteration, developing factual and expert evidence regarding Plaintiffs' claims that class members' needs can be reasonably accommodated, and to Plaintiffs' allegations that the State ofOhio has engaged in discriminatory administration, funding, and policy decisions under the ADA and Section 504. (!d.)
DODD argues that even if Plaintiffs' proffered rationales were correct, the final reimbursement rule, not internal discussions leading to the final rule, is what matters and that any
"alteration" to ICF rate structure "would occur within the context ofthe publicly available rule, not draft rules or preliminary discussions." (ECF No. 349 at 34--35.) DODD goes on to explain that the ICF reimbursement rule change process took months to complete and included feedback from various disability service system stakeholders and, therefore, the only way to identify all potentially responsive documents is to perform an ESI search. (!d.) The parties previously agreed-upon ESI search terms resulted in 23,883 items totaling 8.8 GB, at a cost to taxpayers of
at least $16,717.40, to review this information. (!d. at 35 (citing Roush Affidavit, W6, 8).)
DODD goes on to propose that it produce ''the ICF workgroup meeting presentations, which include the presentations provided by PCG Health and the final rule." (!d.)
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DODD's position is well taken. In light of the parameters ofRule 26(b)(1), the Court
finds that DODD's proposed production ofiCF workgroup meeting presentations sufficiently
responds to RFP 18. To the extent RFP 18 seeks information beyond this response, the Motion
to Compel is DENIED.
I. Information related to the DODD warehouse (RFP 29 and ROG 4)
Plaintiffs seek an order compelling DODD to produce information related to the DODD
warehouse. As originally formulated, Plaintiffs sought the following information:
29. Documents relating to the DODD data warehouse and computer platforms, the information collected therein, and the searchability, functionality and capabilities ofthose databases.
(ECFNo. 345-1 at 13.)
4. Describe the searchability, functionality and reporting capabilities of the DODD data warehouse, including its various databases and computer platforms and the information collected therein.
(ECF No. 345-2 at 8.)
Plaintiffs represent that following the parties' meet and confer process, Plaintiffs agreed
to further specify the information sought, revising the requests as follows:
RPD 29: "Documents sufficient to show each of the following as they concern DODD clients, service providers, and service delivery: 1) the nature and scope of data collected in the DODD data warehouse; 2) the title, content and frequency of reports generated from this data in the normal course of business; 3) the purpose and use of those reports; and 4) the searchability, functionality and capabilities of those databases."
Interrogatory 4: "Describe the searchability, functionality and reporting capabilities of the DODD data warehouse as concerns DODD clients, service providers, and service delivery, including descriptions ofits various databases and the information collected therein."
(!d. at 15.) Plaintiffs clarify that they do not currently seek the production of specific databases
but rather seek "descriptions and examples ofthe kind ofinformation held by the Defendants in
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these areas, how that information is routinely used, and the ways in which it can be searched and analyzed." (Id. (stating further that they "hope that a timely response will allow for any future requests to be targeted to the specific data, reports, or databases most relevant to the claims in this case").) Plaintiffs take the position that this information is "is relevant to, and forms the basis for, the Defendants' administrative, funding, and policy decisions." (!d. at 14.)
The Court agrees with DODD that RFP 29 and ROO 4 even in their revised form are vague. As DODD points out, DODD is a state agency responsible for operating a budget ofover $2.6 billion. (ECF No. 349 at 36 (citation omitted).) General requests for information about DODD's "data collected in the DODD data warehouse" and "reports" generated from that data, without any further specification or limitation, are therefore not proportional to the needs ofthis case. See Fed. R. Civ. P. 26(b)(l); see alsoAnwarv. Dow Chem. Co., 876 F.3d 841,854 (6th Cir. 2017) ("[A] plaintiff should have access to information necessary to establish her claim, but [] a plaintiffmay not be permitted to 'go fishing'; the trial court retains discretion."). For these reasons, as it relates to RFP 29 and ROG 4, whether as originally proposed or revised, the Motion to Compel is DENIED.
J. DODD's Request that Plaintiffs Bear the Costs of Production
Finally, DODD argues that even though the producing party typically bears the cost of production, the Court should use its discretion to shift such cost to Plaintiffs ifthe Court compels DODD to respond to the disputed requests. (ECF No. 349 at 37-38 (representing that it has expended over $730,000 producing nearly 300,000 documents totaling 53.7GB).) The Court, however, has directed DODD to produce information responsive to only a few requests, primarily in the revised form suggested by DODD. Under these circumstances, DODD's request
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to shift the cost ofproduction to Plaintiffs (ECF No. 349 at 37-39) is DENIED WITHOUT PREJUDICE.
IV. For these reasons, Plaintiffs' Motion to Compel from Defendant Dodd and Memorandum
in Support (ECF No. 345) is GRANTED IN PART AND DENIED IN PART consistent with the foregoing.
IT IS SO ORDERED.

\\~ ~q -~1~
DATE

CHIEF UNITED STATES DISTRICT JUDGE
E~~
CHIEF UNITED STATES MAGISTRATE JUDGE

29

 
 Case: 2:16-cv-00282-EAS-EPD Doc #: 371 Filed: 12/07/18 Page: 1 of 13 PAGEID #: 5852

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

PHYLLIS BALL, et al., Plaintiffs,
v.

Case No. 2:16-cv-282
CHIEF .HJDGE EDMUND A. SARGUS, JR. Magistrate Judge Elizabeth Preston Deavers

JOHN KASICH, et al., Defendants.

OPINION AND ORDER

Tiris matter is before the Court on Plaintiffs' Motion for Reconsideration of the Court's September 25,2018 Order (ECF No. 344), Defendants' Response in Opposition to Plaintiffs' Motion (ECF No. 357), Intervenor Guardians' Response in Opposition to Plaintiffs' Motion (ECF No. 358), and Plaintiffs' Reply in Support of their Motion (ECF No. 366). For the reasons that follow, the Court DENIES Plaintiffs' Motion.

I.

Plaintiffs move for reconsideration ofthe definition of the class that this Court certified. Defendants contend that this Court should not consider Plaintiffs' motion because they made no effort "to discuss reconsideration standards at all." (Defs' Mem. in Opp. at 8) (citing Monroe v. Houk, No. 2:07-cv-258, 2016 U.S. Dist. LEXIS 136117, at *4 (S.D. Ohio Sept. 30, 2016) (stating that reconsideration of interlocutory decisions "is generally disfavored"); Zobel v. Contech Enters., No.2: 14-cv-2721, 2017 U.S. Dist. LEXIS 40829, at *3 (S.D. Ohio 2017) (highlighting that reconsideration motions "are 'extraordinary in nature and, because they run contrary to notions of finality and repose, should be discouraged."')).
In reply, Plaintiffs contend that, "[i]t is well-settled that '[o]rders concerning class certification are inherently tentative in nature since they may be revisited at any time prior to

Case: 2:16-cv-00282-EAS-EPD Doc #: 371 Filed: 12/07/18 Page: 2 of 13 PAGEID #: 5853
final judgment."' (Pis' Reply at 3, ECF No. 366) (quoiting In re Breast Implant Litig., No. 923420, 1992 WL 739891, at *1 (6th Cir. May 22, 1992)). Plaintiffs maintain that "courts have held that the 'usual reluctance to entertain motions for reconsideration simply does not apply in the class certification context ... because ofthe special procedural role played by a district court in supervising the maintenance of a class action."' /d. (citing Slaven v. BP Am., Inc., 190 F.R.D. 649, 651-52 (C.D. Cal. 2000) and Ballard v. Equifax Check Servs., Inc., 186 F.R.D. 589, 593 n. 6 (E.D. Cal. 1999) ("Because the court has the power to alter or amend the previous class certification order under Rule 23(c)(1), the court need not consider whether 'reconsideration' is also warranted under Fed. R. Civ. P. 60(b) ....")).
Plaintiffs are correct that this Court may alter or amend its class definition at any time prior to final judgment. As is reflected in both ofthe cases relied upon by Plaintiffs, generally when courts alter or amend a class definition it is done as the progression ofthe case brings to light facts that were unknown at the time ofthe class was certified or to address law that had changed since the time the class was certified. For example, in Slaven the parties moved in 2000 to have amended a class definition that was certified in 1994. The Court noted that ''the governing law has changed since 1994, when the Court last entertained a motion pertaining to class certification. The Ninth Circuit now requires a Court to undertake 'rigorous analysis' in reaching class certification decisions." Slaven, 190 F.R.D. at 651-52. Similarly, in Ballard, ''the body oflaw pertaining to debt collection in general as well as the law and facts in th[e] case have evolved" in the two years since the motion for class certification had been filed. In the instant action, Plaintiffs make no argument that the law or facts have evolved since the Court considered, decided, and twice clarified, Plaintiffs' Motion for Class Certification.
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II. This case was filed on March 31, 2016. Plaintiffs seek the following declaratory and injunctive reliefunder these three federal statutes: (1) Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12132 et seq., alleging that "Individual Plaintiffs and the members ofthe Plaintiffclass . . . . are qualified to participate in the Defendants' system ofhome and community~based programs and services" but that Defendants failed to provide them with that access, which is "required to remedy or prevent their unnecessary institutionalization .. .." (Compl. ~ 205-11.) (2) Section 504 ofthe Rehabilitation Act of 1973 (''Rehabilitation Act"), 29 U.S.C. §§ 794 et seq., alleging that "Individual Plaintiffs and the members of the Plaintiff class ... . are qualified to participate in the Defendants' system ofhome and community-based programs and services" but that Defendants failed to provide them with that access, which is "required to
remedy or prevent their unnecessary institutionalization ...." (Compl. mf 212-18.)
(3) The Social Security Act, 42 U.S.C. §§ 1396n(c)(2)(B) and (C), alleging that "Individual Plaintiffs and the members ofthe Plaintiff class . . . who are likely to meet [Intermediate Care Facility ("ICF")] level ofcare criteria, which qualifies them for either ICF or home and community-based waiver services . . . . have [not been] meaningfully inform[ed] of feasible alternatives to institutional placement, including their eligibility for, and the availability of, home and community-based services which could prevent or avoid their continued and unnecessary institutionalization ...." (Compl. ~ 219-23.) Plaintiffs have refer to this claim as the "Free Choice" claim.
Plaintiffs filed a Motion to for Class Certification on August 22, 2016, which consisted of briefing and exhibits that totaled 1,316 pages. (ECF No. 42.) In this motion, Plaintiffs requested certification of the following class:
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All Medicaid-eligible adults with intellectual and developmental disabilities residing in the state of Ohio who, on or after March 31, 2016, are institutionalized, or at serious risk of institutionalization, in an Intermediate Care Facility with eight or more beds, and who have not documented their opposition to receiving integrated, community-based services.
(ECF No. 42 at 3--4.)
After class discovery, Defendants responded in opposition to Plaintiffs' Motion for Class
Certification in a document that consisted of429 pages ofbriefing and exhibits. (ECF No. 273.)
Defendants focused in large part on what they viewed as the proposed class members' different
and conflicting interests. (ECF No. 273.)
On August 22, 2017, the Court held a settlement conference with the parties. While the
conference failed to secure a settlement, there were many issues discussed that prompted
Plaintiffs to file a Motion to Include Supplemental Evidence and a Revised, Proposed Class
Definition. (ECF No. 276.) Defendants opposed this request, noting the significant time and
resources it spent responding to the first class certification motion. (ECF No. 279.) The Court,
however, granted Plaintiffs' request.
In Plaintiffs supplemental brief, which totaled 1,156 pages ofbriefing and exhibits,
Plaintiffs revised their requested class definition to the following:
All Medicaid-eligible adults with intellectual and developmental disabilities residing in the state of Ohio who, on or after March 31, 2016, are qualified for home and community-based services, but (a) are institutionalized in an Intermediate Care Facility with eight or more beds, and. after receiving options counseling, express that they are interested in, or may be interested in, integrated community-based services; or (b) are at serious risk ofinstitutionalization in an Intermediate Care Facility with eight or more beds and have, by placing themselves on a waiting list for community-based services, expressed an interest in receiving integrated services while continuing to live in the community.
(ECF No. 283 at 2) (emphasis added). Plaintiffs explained:
Class members at serious risk ofinstitutionalization in large ICFs include people with intellectual and developmental disabilities who are qualified for home and community-based services and who now, or in the future: (1) apply for or are
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Case: 2:16-cv-00282-EAS-EPD Doc #: 371 Filed: 12/07/18 Page: 5 of 13 PAGEID #: 5856
referred for admission to an ICF; (2) are on waiting lists for Medicaid home and community-based services and have either an aging caregiver, intensive needs, or an emergency, as defmed by Ohio's current or future waiting list rule, or (3) have another immediate need which creates a substantial risk ofhann, as determined by Ohio's current or future waiting list rule. Id. at 2-3.
By the time the class certification issue was ripe for this Court's review, the parties had filed over 3,000 pages ofbriefs and exhibits over a period of nearly two years. (ECF Nos. 42, 94,273,275-76,278-81,283,289,291,293-94,296,300,308.)
On March 30, 2018, this Court issued its decision granting in part and denying in part Plaintiffs' request to litigate all oftheir claims on a class wide basis. The Court utilized some of the requested language offered by Plaintiffs, such as making the receipt of options counseling an element ofthe definition, and certified the following class:
All Medicaid-eligible adults with intellectual and developmental disabilities residing in the state ofOhio who, on or after March 31, 2016, are qualified for home and community-based services, and, after receiving options counseling, express that they are interested in community-based services. (ECF No. 303 at 22) (emphasis added). After certifying the class, the Court held a status conference on May 2, 2018. The parties disagreed as to the meaning of the definition of the class that the Court certified. The Court issued a memorialization ofthat conference that addressed, inter alia, the class definition as follows:
Inthe parties' suggested agenda topics submitted to the Court, it was clear that there is a disagreement as to this Court' s definition ofthe class it certified. In its decision on class certification, the Court narrowed the proposed class definition as follows:
All Medicaid-eligible adults with intellectual and developmental disabilities residing in the state ofOhio who, on or after March 31, 2016, are qualified for home and community-based services, and,
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Case: 2:16-cv-00282-EAS-EPD Doc #: 371 Filed: 12/07/18 Page: 6 of 13 PAGEID #: 5857

after receiving options counseling, express that they are interested in community-based services.

1. At the status conference, the Court clarified its class definition as follows:

a

"Interested in" means affirmatively state that they want

community -based services.

b. "Options counseling" means the counseling that is currently being utilized.

2. Thus, to be class members, the individuals:

a. Must be Medicaid-eligible adults with intellectual and developmental disabilities residing in the state of Ohio who, on or after March 31, 2016, are qualified for home and community-based services; and

b. Must have received options counseling; and

c. Must have affirmatively stated that they want communitybased services, and have not had them provided.
(ECF No. 309 at 1-2.) At the May 2, 2018 conference, the parties also indicated that they
would like to engage in another settlement conference.

On June 11 and 12, 2018, the Court held a two-day mediation. At that conference the issue ofthe class definition was still a point ofcontention between the parties. Plaintiffs took the position that the sufficiency ofthe options counseling was a claim that they could litigate on a class wide basis. This Court disagreed. The Court issued a Second Clarification Order memorializing the clarifications it made at the conference, which stated in relevant part:

The Court explained that the issue ofthe sufficiency ofthe options counseling "was not certified for class purposes." (Tr. at 3, ECF No. 323.) The class consists of individuals who already received the options counseling as it is provided by the defendants. The Court specified that the plaintiffs' claim that the defendants "failed to meaningfully inform" the plaintiffs "about feasible alternatives to institutional care" brought in the "Free Choice" claim was certainly a live claim, but with regard

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to individually-named plaintiffs only. (/d.); (Compl. ~ ~ 219-220) ("Third Claim for Relief: Violation ofthe Social Security Act's "Free Choice" Provision under 42 U.S.C. § 1396n(c)(2)(B)&(C)").
(ECF No. 332 at 2-3.)
III.
In Plaintiffs' Motion for Reconsideration, they seek reconsideration of"four aspects" of the Court's clarification ofthe class defmition in its Second Clarification Order:
(1) the Court's limitation of the class to those who "already received" options counseling; (2) the Court's limitation of the class to those who have received options counseling "as it is provided by the defendants"; (3) the Court's fmding that ''the sufficiency of the options counseling" cannot be challenged by the class; and (4) the Court's exclusion ofthe Plaintiffs' freedom of choice claims from class consideration.
(ECF No 344 at 1.)
Plaintiffs contend that,
Together, these holdings exclude potentially thousands of individuals from the class, by restricting future membership in the class and by permitting State Defendants to unilaterally limit who receives options counseling. The process by which individuals become class members should be fair, adequate, and in compliance with federal law; it cannot be within the exclusive control of State. !d.
Plaintiffs' arguments are not well taken. The Court, however, agrees with Plaintiffs that "the process by which individuals become class members should be fair, adequate, and in compliance with federal law." This Court, however, has met that burden by "conducting a ' rigorous analysis,' that the requirements of Rule 23 have been met." In re Whirlpool Corp., 722 F.3d at 851 (citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011); Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537 (6th Cir. 2012); Daffin v. Ford Motor Co., 458 F.3d 549, 552 (6th Cir. 2006)). In the instant action, Plaintiffs moved for certification of an injunctive and declaratory relief class under Federal Rule of Civil Procedure 23(b)(2). In 23(b)(2)
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Case: 2:16-cv-00282-EAS-EPD Doc #: 371 Filed: 12/07/18 Page: 8 of 13 PAGEID #: 5859
mandatory classes, the movant must show ''that the party opposing the class has affected the class in a way generally applicable to the class as a whole so that final injunctive or declaratory reliefwith respect to the entire class is appropriate." Reeb v. Ohio Dept. ofRehab. and Correction, 435 F.3d 639, 645-46 (6th Cir. 2006) (citing Fed. R. Civ. P. 23(b)(2)). Further, the 23(b)(2) injunctive relief class ''requirements are designed to permit only classes with homogenous interests" because it provides for mandatory, non-opt-out classes. Coleman v. Gen. Motors Acceptance Corp. , 296 F.3d 443,447 (6th Cir. 2002). The "defining characteristic" of such a class is "'the homogeneity of the interests of the members of the class."' Romberio[ v. UNUMProvident Corp., 385 F. App'x 423, 432 (6th Cir. 2009)] (quoting Reeb[, 435 F.3d at 649).] As part of this endeavor, the Court ''must defme the class." Fed. R. Civ. P. 23(c)(l)(B). With this law as its guide, the Court considered over 3000 pages ofbriefing and exhibits and issued a decision that defined the class.
In addition to defming a class, a court must defme "the class claims, issues, or defenses." Fed. R. Civ. P. 23(c)(l)(B). In granting in part and denying in part Plaintiffs' request to litigate all of their claims on a class wide basis, the Court anticipated that some of the claims would be litigated on a class-wide basis and some may be litigated on an individual basis. How a certified class is defined will naturally affect which claims can proceed as class claims. That is, a party is
only pennitted to proceed on class claims that are consistent with the defined class that is
ultimately certified. In their Complaint, Plaintiffs named certain individuals as plaintiffs in their individual
capacity and as class representative plaintiffs. Plaintiffs alleged that in their representative capacity, these individuals were representative ofa class ofpeople who were harmed by Defendants' violations ofcertain federal statutes ("class claims''), as set forth above. The ability
8

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to litigate the class claims is contingent upon the individuals who were allegedly harmed by Defendants~ violations being class members. The certified class, however, does not include all ofthe individuals Plaintiffs requested to be made class members. The class that this Court certified is narrower than the one Plaintiffs requested. For example, the class certified by the Court excluded Plaintiffs' requested potential class members who "may be interested in" community based services, explaining:
The policies or practices targeted by a proposed plaintiff class must at a minimum have the potential to uniformly harm the class so that the entire class has an interest in modifying those policies. In the case subjudice, individuals who are currently residing in Large ICFs and who have requested community-based services are potentially harmed by the policies targeted by Plaintiffs, i.e., providing fewer community services slots than are necessary to meet this need.
However, some of the class members who after counseling indicate that they "may be" interested in community-based services will not be harmed by this targeted conduct. Some of the class members who indicated that they ''may be" interested in community-based services will decide that they prefer to stay in a Large ICF. These class members~ therefore, will not be harmed by the Ohio Defendants' failure to fund community-based services. Indeed, the opposite.
The class members who decide that they prefer to stay in a Large ICF may actually be harmed by Plaintiffs' proposed modification ofOhio's funding policies, which would divert funding away from these class members' preferred service option (Large ICFs) to community-based service. Indeed, this concern is not merely hypothetical. The Guardians in this case make this precise contention. Thus, some ofthe class members will not "complain ofa pattern or practice [failure to sufficiently fund community-based services] that is generally applicable to the class as a whole." Id. (quoting Gooch, 672 F.3d at 428). The class members who do not want community-based services do not complain that there are insufficient community-based services available for them.
The potentially aggrieved class members in the instant action are those individuals with intellectual and developmental disabilities who have indicated that they want community-based services. If Ohio does not have enough "communitybased services required by the Plaintiff class," this group is harmed- a harm that may be "redressed by the expansion of community based services." (Pis.' Mot. for Class Cert. at 41, ECF No. 42) (articulating requested relief) (ECF No. 303 at 18-19.)
9

Case: 2:16-cv-00282-EAS-EPD Doc #: 371 Filed: 12/07/18 Page: 10 of 13 PAGEID #: 5861
The Court similarly excluded from the class the proposed members who were allegedly
"at-risk" ofinstitutionalization, explaining:
The same issues of cohesiveness and homogeneity of interests exist with Plaintiffs' proposed "at-risk" class (individuals who "are at serious risk of institutionalization in an Intermediate Care Facility with eight or more beds and have, by placing themselves on a waiting list for community-based services, expressed an interest in receiving integrated services while continuing to live in the community''). The DD Boards provide evidence that placement on a waiting list and assignment to a priority category is not necessarily reflective ofneed or desire for community-based services.
The Court concludes that the proposed "at risk" class members do not have homogenous interests for the same reasons the proposed class members above did not. That is, the class members who may want community-based services do not have homogenous interests with those class members who do want communitybased services. Likewise, some class members who are on the wait list want community-based services and some want services provided in Large ICFs. In a situation where there is limited funding, this not only reflects lack of homogenous interests, it indicates competing interests, which could actually harm certain members ofa broad Rule 23(b) class because ofthe lack of notice and opportunity for class members to opt out. Therefore, because the proposed class does not suffer
a uniform harm that can be remedied with the same relief, certifying a broad class is inappropriate. See Reeb, 435 F.3d at 645-46 (the plaintiffs must show "that the
party opposing the class has affected the class in a way generally applicable to the class as a whole so that final injunctive or declaratory relief with respect to the entire class is appropriate.") (citing Fed. R. Civ. P. 23(b)(2)).
ld. at 19- 22.
Thus, after a rigorous analysis, this Court certified a homogenous class ofindividuals
with cohesive interests-those who have received options counseling and said yes to waiver
services. That group ofpeople has no need for more, or improved, counseling about waiver
services. They have already decided they want community based services. Thus, class members
have no need to pursue a claim challenging options counseling.
As Defendants correctly point out, Plaintiffs ask for "reconsideration of aspects of the class
definition that they created by voluntarily incorporating Ohio's approach to options counseling into
10

Case: 2:16-cv-00282-EAS-EPD Doc #: 371 Filed: 12/07/18 Page: 11 of 13 PAGEID #: 5862
their second proposed class definition." (ECF No. 357 at 1.) That is, the relationship between options counseling and class membership is a product of Plaintiffs' own litigation choices. Defendants contend that Plaintiffs made these litigation choices because they "faced a significant cohesiveness problem under Rule 23(b)(2).'' ld. Regardless ofwhy Plaintiffs chose to define the class the way they did, they did not ask for the Court to determine whether a group of individuals who failed to receive sufficient options counseling could be certified as an injunctive and declaratory reliefclass under Rule 23(b)(2).
Therefore, Plaintiffs are mistaken that they are guaranteed a class-wide 'judicial determination on the merits ofthe sufficiency ofthe existing options counseling process." (Pis' Mot. for Reconsideration at 9, ECF No. 344.) No such guarantee exists. Nothing about the nature ofPlaintiffs' federal claims allows them to jump past Rule 23 standards. Like all litigants, Plaintiffs are not limited to the claims that they can bring before this Court but are certainly limited as to the claims that may be litigated on a class wide basis. The pertinent inquiry in certifying class claims is not only whether such claims exist, but also whether the claims fit the certified class. Plaintiffs' option-counseling challenges do not fit with the certified class because by definition class members do not need more counseling. This element of the class definition (receipt of options counseling) was proposed by Plaintiffs and adopted by this Court. The Court has not engaged in a Rule 23 analysis of individuals who allegedly received insufficient options counseling. Plaintiffs simply did not ask for such a class to be certified.
Thus, Plaintiffs' options counseling claim may proceed on an individual level, but not on a class level. By way of example, during briefing on class certification, Plaintiffs offer the declaration of Pat Callahan. (ECF No. 283-14.) Ms. Callahan lived in an eight-bed ICF and avers that she wanted to live in the community. Ms. Callahan declares that she was never offered options counseling, or any other meaningful opportunity to access community based
11

Case: 2:16-cv-00282-EAS-EPD Doc #: 371 Filed: 12/07/18 Page: 12 of 13 PAGEID #: 5863
services even though she told her ICF staffthat she wanted to live in the community and no one helped her. /d. Plaintiffs may explore the sufficiency ofthe options counseling for any individually named plaintiffs who have claims, like those ofMs. Callahan, that they were denied options counseling or any other meaningful opportunity to access community based services.
Plaintiffs also argue that the options counseling, "while not a separate cause ofaction, is an important aspect ofPlaintiffs' class claims under the ADA and Section 504 [ofthe Rehabilitation Act]." (Mot. for Reconsideration at 7, ECF No. 344.) Thus, it seems Plaintiffs suggest that because at least part oftheir claims brought under the ADA and/or the Rehabilitation Act will be litigated on a class wide basis, the Court should not "forecloses their ability to ensure options counseling is fair and non-discriminatory to potential class members." /d. Plaintiffs rely on case law that holds that "[i]t is commonly understood that, for such classes to be fair and effective, potential class members must be provided with notice sufficient for them to make an infonned decision about class membership." Id. (citing as examples, Fenley v. Wood Grp. Mustang, Inc., 170 F. Supp. 3d 1063, 1075 (S.D. Ohio 2016) (in context ofFLSA collective action, requiring that class notice contain "necessary infonnation for potential plaintiffs to make an informed decision about whether to opt-in as a plaintiff') (citation and quotation omitted); Heaps v. Safelite Sols., LLC, No. 2:10 CV 729,2011 WL 1325207, at *7.))
Defendants, however, correctly highlight that this case law is inapposite because it was developed under Rule 23(b)(3), which is the rule for opt-in classes, not mandatory ones like the one certified in the case at bar. Plaintiffs recognize that they moved and were granted a mandatory, non-opt-out class under Rule 23(b)(2), but maintain that the class "is, in effect, an 'opt-in' class." (Pls' Mot. for Reconsideration at 7, ECF No. 344.) This description misapprehends the nature ofmandatory and opt-in classes. Opt-in classes under Rule 23(b)(3)
12

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involve a process by which class members receive notice and then can choose whether to stay in a case. By contrast, Ru1e 23(b)(2) classes are mandatory, with no opportunity for class members to opt out. Reeb, 435 F.3d at 649. Individuals either meet the class definition (and are in) or they do not (and are out). Here, options counseling is a substantive element ofthe class definition-an element Plaintiffs chose to use to identify the class. It works to limit the class to only people with homogenous interests, i.e., those who have committed to waiver services. Options counseling is not a procedural method ofproviding notice and a chance to opt in or optout.
While the Court is sympathetic to Plaintiffs' frustration at not having certified the broad class they wanted, the Court is simply not permitted to circumvent Ru1e 23's requirements.
IV. Based on the foregoing, the Court DENIES Plaintiffs' Motion for Reconsideration of the Court's September 25,2018 Order (ECF No. 344), IT IS SO ORDERED.

DATE

E~SARGUS, JR.

CHIE

ED STATES DISTRICT JUDGE

13

 
 Case: 2:16-cv-00282-EAS-EPD Doc #: 409 Filed: 10/18/19 Page: 1 of 2 PAGEID #: 6188
IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

PHYLLIS BALL, et aL,

Plaintiffs,

v.

MIKE DEWINE, et aL,

and:

Defendants.

GUARDIANS OF HENRY LAHRMANN, etaL; OHIO ASSOCIATION OF COUNTY BOARDS,

Defendant-Intervenors.

Case No.: 2:16-cv-282 Chief Judge Sargus, Jr. Magistrate Judge Deavers

ORDER This matter is before the Court upon the third joint motion ofthe Plaintiffs, the State Defendants, and the Ohio Association of County Boards ofDevelopmental Disabilities for preliminary approval ofthe Moving Parties' proposed Settlement Agreement. WHEREFORE, for good cause shown, the Court hereby preliminarily approves the Moving Parties' proposed Settlement Agreement and finds that the form and contents of the proposed notice and the parties' proposed methods ofproviding notice to class members comply with Rule 23(e) and Due Process. It is Ordered that:

Case: 2:16-cv-00282-EAS-EPD Doc #: 409 Filed: 10/18/19 Page: 2 of 2 PAGEID #: 6189

(1) The parties shall distribute notice in the manner as set forth in the joint motion and memorandum filed by the Moving Parties. Notice shall be completed within one week ofthe date of this Order.
(2) Plaintiffs' assented-to motion for attorneys' fees shall be filed no later than November 15,2019.
(3) Comments and objections to the proposed Settlement Agreement must be received by the Court by December 2, 2019. As the Court receives comments and objections, the Court will file them through its CMIECF system and ensure the parties' counsel have access to them.
(4) Motions and memoranda in support offinal approval ofthe Settlement Agreement, and addressing any objections and comments, shall be filed no later than December 9, 2019. Reply briefs, if necessary, shall be filed no later than December 13, 2019.
(5) This matter shall be set for a fairness hearing on Tuesday, December 17, 2019 at9:30 am.
IT IS SO ORDERED

DATE

A. SARGUS, JR. ATES DISTRICT JUDGE

2

 
 Important Update Regarding the Proposed Settlement in DRO's Community Integration Class Action Lawsuit
January 10, 2020 / Ball v. Kasich
In March of 2016, Disability Rights Ohio (DRO) filed a class-action lawsuit against the state on behalf of individuals with developmental disabilities who were unnecessarily segregated or at risk of segregation. The suit was aimed at expanding access to community-based supports for those who want them. Our reasons for filing this lawsuit were based on the following facts: • The Americans with Disabilities Act (ADA) and the Supreme Court Olmstead Decision provide people with disabilities a legal right to community-based, integrated services.
• For many years before this lawsuit, individuals living in institutional settings called Intermediate Care Facilities (ICFs) had almost no options to access community-based supports.
• And, Ohioans who asked to be moved out of an ICF and into the community with the supports they needed, waited an average of 13 years to receive the community-based Medicaid waiver they needed to do so.
In 2018, the Court certified a class of individuals who, after receiving options counseling, express an interest in community-based supports. DRO and its cocounsel currently represent this class.
In October 2019, we were pleased to share that after three years, we had reached a settlement with the state. This settlement is designed to increase class members’ access to community-based supports. It also expands access to information about service options, including options for living and working in the community.
That settlement is still intact. However, the Federal Judge overseeing the case has requested certain changes to its terms before giving final approval. Specifically, the Court wanted to address concerns voiced by a group of parents who, while not part of the class itself, are worried about the settlement and its potential impact on their family members in ICFs.
We heard the Judge. And, listened to those who are worried. The settlement is not intended to force any particular service option. In order to further clarify this and address those concerns, we have agreed to include the following assurances:

• The State will request the same ICF daily rate in making its budget requests during the term of the settlement.
• Nothing in the settlement is intended to force a person to forgo or relinquish ICF services, or to remove the ICF option in the future.
• No one currently living in an ICF will be required to accept community-based supports as part of the settlement’s options counseling process.
• Individuals who testified against the proposed settlement can be excluded from options counseling.
Both DRO and the state filed their briefs in support of the settlement with these reassurances today. The matter is now back in the Judge’s hands as we await his decision.

 
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 Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 1 of 65
PROTO,STAYED
U.S. District Court Southern District of Ohio (Columbus) CIVIL DOCKET FOR CASE #: 2:16−cv−00282−EAS−EPD

Ball et al v. Kasich et al Assigned to: Chief Judge Edmund A. Sargus Referred to: Magistrate Judge Elizabeth Preston Deavers related Case: 2:89−cv−00362−EAS−NMK Cause: 42:12101 Americans with Disabilities Act
Interested Party

Date Filed: 03/31/2016 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

United States United States Department of Justice 950 Pennsylvania Ave., NW−NYA Washington, DC 20530 202−616−5319 United States

represented by Julia M. Graff United States Department of Justice 950 Pennsylvania Ave. NW NYA Rm. 6007 Washington, DC 20530 202−616−5319 Fax: 202−514−7821 Email: julia.graff@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Phyllis Ball by her General Guardian, Phyllis Burba

represented by Kerstin Sjoberg Disability Rights Ohio 200 Civic Center Drive Suite 300 Columbus, OH 43215 614−466−7264, Ext 114 Fax: 614−644−1888 Email: ksjoberg−witt@disabilityrightsohio.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison A. McKay Disability Rights Ohio 200 Civic Center Drive Suite 300 Columbus, OH 43215 614−466−7264 ext.173 Fax: 614−644−1888 Email: amckay@disabilityrightsohio.org ATTORNEY TO BE NOTICED

Anna M Krieger Center for Public Representation 22 Green Street Northampton, MA 01060 413−586−6024 Fax: 413−586−5711 Email: akrieger@cpr−ma.org PRO HAC VICE ATTORNEY TO BE NOTICED

Cathy E Costanzo Center for Public Representation 22 Green Street Northampton, MA 01060 413−586−6024 Fax: 413−586−5711 Email: ccostanzo@cpr−ma.org

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 2 of 65
PRO HAC VICE ATTORNEY TO BE NOTICED
John Gribbin Hutchinson Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 212−839−5300 Fax: 212−839−5599 Email: jhutchinson@sidley.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Warren Muenz Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 212−839−5300 Fax: 212−839−5599 Email: jmuenz@sidley.com PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Lesley Rucker Center for Public Representation 22 Green Street Northampton, MA 01060 413−586−6024 Fax: 413−586−5711 Email: krucker@cpr−ma.org PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin J Truitt Disability Rights Ohio 200 Civic Center Drive Suite 300 Columbus, OH 43215 614−466−7264, Ext 122 Fax: 614−644−1888 Email: ktruitt@disabilityrightsohio.org ATTORNEY TO BE NOTICED
Kristen A. Knapp Sidley Austin LLP 1501 K Street, N.W. Washington, DC 20005 202−736−8219 Fax: 202−736−8711 Email: kknapp@sidley.com PRO HAC VICE ATTORNEY TO BE NOTICED
Kristen E Rau Sidley Austin LLP One South Dearborn Chicago, IL 60603 312−853−9274 Fax: 312−853−7036 Email: krau@sidley.com TERMINATED: 03/02/2017 PRO HAC VICE
Neil R. Ellis Sidley Austin LLP

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 3 of 65

Plaintiff
Antonio Butler individually

1501 K Street, N.W. Washington, DC 20005 202−736−8075 Fax: 202−736−8711 Email: nellis@sidley.com PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Matthew McLean Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 212−853−5959 Fax: 212−853−7036 Email: nmclean@sidley.com TERMINATED: 08/04/2017 PRO HAC VICE
Samuel R Bagenstos 625 S. State Street Ann Arbor, MI 48109 857−231−1663 Email: sbagen@gmail.com PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Kayes Sidley Austin LLP One South Dearborn Chicago, IL 60603 312−853−3293 Fax: 312−853−7036 Email: tkayes@sidley.com TERMINATED: 05/29/2018 PRO HAC VICE
represented by Kerstin Sjoberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison A. McKay (See above for address) ATTORNEY TO BE NOTICED
Anna M Krieger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cathy E Costanzo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Gribbin Hutchinson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Warren Muenz (See above for address) PRO HAC VICE

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 4 of 65

Plaintiff
Caryl Mason by her Next Friend Cathy Mason−Jordan

ATTORNEY TO BE NOTICED
Kathryn Lesley Rucker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin J Truitt (See above for address) ATTORNEY TO BE NOTICED
Kristen A. Knapp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristen E Rau (See above for address) TERMINATED: 03/02/2017 PRO HAC VICE
Neil R. Ellis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Matthew McLean (See above for address) TERMINATED: 08/04/2017 PRO HAC VICE
Samuel R Bagenstos (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Kayes (See above for address) TERMINATED: 05/29/2018 PRO HAC VICE
represented by Kerstin Sjoberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison A. McKay (See above for address) ATTORNEY TO BE NOTICED
Anna M Krieger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cathy E Costanzo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Gribbin Hutchinson (See above for address) PRO HAC VICE

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 5 of 65

Plaintiff
Richard Walters by his Next Friend Linda Walters

ATTORNEY TO BE NOTICED
Jonathan Warren Muenz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Lesley Rucker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin J Truitt (See above for address) ATTORNEY TO BE NOTICED
Kristen A. Knapp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristen E Rau (See above for address) TERMINATED: 03/02/2017 PRO HAC VICE
Neil R. Ellis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Matthew McLean (See above for address) TERMINATED: 08/04/2017 PRO HAC VICE
Samuel R Bagenstos (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Kayes (See above for address) TERMINATED: 05/29/2018 PRO HAC VICE
represented by Kerstin Sjoberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison A. McKay (See above for address) ATTORNEY TO BE NOTICED
Anna M Krieger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cathy E Costanzo (See above for address) PRO HAC VICE

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 6 of 65

Plaintiff
Nathan Narowitz individually TERMINATED: 01/18/2017

ATTORNEY TO BE NOTICED
John Gribbin Hutchinson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Warren Muenz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Lesley Rucker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin J Truitt (See above for address) ATTORNEY TO BE NOTICED
Kristen A. Knapp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristen E Rau (See above for address) TERMINATED: 03/02/2017 PRO HAC VICE
Neil R. Ellis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Matthew McLean (See above for address) TERMINATED: 08/04/2017 PRO HAC VICE
Samuel R Bagenstos (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Kayes (See above for address) TERMINATED: 05/29/2018 PRO HAC VICE
represented by Kerstin Sjoberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison A. McKay (See above for address) ATTORNEY TO BE NOTICED
Anna M Krieger (See above for address) PRO HAC VICE

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 7 of 65

Plaintiff
Ross Hamilton by his Next Friend Sherry Hamilton

ATTORNEY TO BE NOTICED
Cathy E Costanzo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Gribbin Hutchinson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Warren Muenz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Lesley Rucker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin J Truitt (See above for address) ATTORNEY TO BE NOTICED
Kristen A. Knapp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristen E Rau (See above for address) TERMINATED: 03/02/2017 PRO HAC VICE
Neil R. Ellis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel R Bagenstos (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Kerstin Sjoberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison A. McKay (See above for address) ATTORNEY TO BE NOTICED
Anna M Krieger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cathy E Costanzo (See above for address) PRO HAC VICE

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 8 of 65

Plaintiff
The Ability Center of Greater Toledo in its organizational and representative capacity

ATTORNEY TO BE NOTICED
John Gribbin Hutchinson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Warren Muenz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Lesley Rucker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin J Truitt (See above for address) ATTORNEY TO BE NOTICED
Kristen A. Knapp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristen E Rau (See above for address) TERMINATED: 03/02/2017 PRO HAC VICE
Neil R. Ellis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Matthew McLean (See above for address) TERMINATED: 08/04/2017 PRO HAC VICE
Samuel R Bagenstos (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Kayes (See above for address) TERMINATED: 05/29/2018 PRO HAC VICE
represented by Kerstin Sjoberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison A. McKay (See above for address) ATTORNEY TO BE NOTICED
Anna M Krieger (See above for address) PRO HAC VICE

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 9 of 65
ATTORNEY TO BE NOTICED
Cathy E Costanzo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Gribbin Hutchinson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Warren Muenz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Lesley Rucker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin J Truitt (See above for address) ATTORNEY TO BE NOTICED
Kristen A. Knapp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristen E Rau (See above for address) TERMINATED: 03/02/2017 PRO HAC VICE
Neil R. Ellis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Matthew McLean (See above for address) TERMINATED: 08/04/2017 PRO HAC VICE
Samuel R Bagenstos (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Kayes (See above for address) TERMINATED: 05/29/2018 PRO HAC VICE

V.
Defendant
Governor John Kasich in his official capacity

represented by Zachery Paul Keller Ohio Attorney General Constitutional Offices 30 East Broad St., 16th Floor Columbus, OH 43215

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 10 of 65

Defendant
Director John Martin Director of the Ohio Department of Developmental Disabilities, in his official capacity

614−466−1853 Fax: 614−728−7592 Email: zachery.keller@ohioattorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan L. Richardson 2480 Fair Avenue Bexley, OH 43209 513−571−7116 Email: ryan.richardson@ohioattorneygeneral.gov TERMINATED: 01/23/2018
Sarah Elaine Pierce Ohio Attorney General's Office Constitional Offices Section 30 East Broad Street, 16th Flr. Columbus, OH 43215 614−466−2872 Fax: 614−728−7592 Email: sarah.pierce@ohioattorneygeneral.gov TERMINATED: 06/05/2019 ATTORNEY TO BE NOTICED
Tiffany L. Carwile Ohio Attorney General Constitutional Offices Section 30 E. Broad St., 16th Floor Columbus, OH 43215 614−466−2872 Fax: 614−728−7592 Email: tiffany.carwile@ohioattorneygeneral.gov ATTORNEY TO BE NOTICED
represented by Larry Holliday James Crabbe Brown & James − 2 500 S Front Street Suite 1200 Columbus, OH 43215 614−228−5511 Email: ljames@cbjlawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Robert Green Crabbe, Brown & James, LLP 500 South Front Street, Suite 1200 Columbus, OH 43215 614−229−4563 Fax: 614−229−4559 Email: cgreen@cbjlawyers.com ATTORNEY TO BE NOTICED
Frank David Tice , V Crabbe, Brown & James, LLP 500 S. Front Street, Suite 1200 Columbus, OH 43215 614−229−4562 Email: ftice@cbjlawyers.com TERMINATED: 12/31/2018
Robert Charles Buchbinder Crabbe Brown & James − 2

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 11 of 65

Defendant Director John McCarthy Director of the Ohio Department of Medicaid, in his official capacity TERMINATED: 04/20/2017
Defendant Director Kevin Miller Director of Opportunities for Ohioans with Disabilities, in his official capacity

500 S Front Street Suite 1200 Columbus, OH 43215 614−228−5511 Fax: 228−5511 Email: rbuchbinder@cbjlawyers.com ATTORNEY TO BE NOTICED
Vincent James Lodico Crabbe Brown & James − 2 500 S Front Street Suite 1200 Columbus, OH 43215 614−229−4536 Fax: 614−229−4559 Email: vlodico@cbjlawyers.com ATTORNEY TO BE NOTICED
represented by Allan K Showalter Ohio Attorney General Executive Agencies Section 30 E. Broad St., 26th Flr. Columbus, OH 43215 614−752−6447 Fax: 866−803−9738 Email: allan.showalter@ohioattorneygeneral.gov LEAD ATTORNEY
Larry Holliday James (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Jarosch Office of Ohio Attorney General Mike DeWine Health and Human Services 30 East Broad Street 26th Floor Columbus, OH 43215 614−644−8946 Fax: 866−471−2611 Email: jeffrey.jarosch@ohioattorneygeneral.gov TERMINATED: 04/14/2017
represented by Allan K Showalter (See above for address) TERMINATED: 11/22/2017 LEAD ATTORNEY
Julie E Brigner Ohio Attorney General's Office Health & Human Services Section 30 E. Broad Street, 26th Floor Columbus, OH 43215 614−466−1181 Fax: 866−372−7126 Email: julie.brigner@ohioattorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Larry Holliday James

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 12 of 65

Defendant Barbara Sears Ohio Department of Medicaid, in her official capacity
Defendant Norman S. Ray

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank David Tice , V (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Jarosch (See above for address) TERMINATED: 04/14/2017
Justin T. Radic Ohio Attorney General's Office 30 East Broad Street Columbus, OH 43215 (614) 644−8780 Fax: (866) 679−2058 Email: justin.radic@ohioattorneygeneral.gov TERMINATED: 01/14/2019
represented by Allan K Showalter (See above for address) TERMINATED: 11/22/2017 LEAD ATTORNEY
Julie E Brigner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Larry Holliday James (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank David Tice , V (See above for address) ATTORNEY TO BE NOTICED
Justin T. Radic (See above for address) ATTORNEY TO BE NOTICED
represented by Larry Holliday James (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Defendant Ohio Provider Resource Association

represented by Peter A Lusenhop Vorys Sater Seymour & Pease − 2 PO Box 1008 52 E Gay Street Columbus, OH 43216−1008 614−464−6400 Email: palusenhop@vorys.com LEAD ATTORNEY

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 13 of 65

ThirdParty Defendant Ohio Disability Rights Law and Policy Center Inc. Disability Rights Ohio TERMINATED: 10/26/2018
Amicus VOR, Inc.
Amicus The Arc of Ohio

ATTORNEY TO BE NOTICED
Kara Marie Mundy Vorys, Sater, Seymour and Pease, LLP 52 East Gay Street PO Box 1008 Columbus, OH 43216 614−464−5669 Fax: 614−719−4709 Email: kmmundy@vorys.com ATTORNEY TO BE NOTICED
Suzanne Jo Scrutton Vorys Sater Seymour & Pease − 2 PO Box 1008 52 E Gay Street Columbus, OH 43216−1008 614−464−6400 ATTORNEY TO BE NOTICED
represented by Caroline Gentry Porter Wright Morris & Arthur One South Main Street Suite 1600 Dayton, OH 45402−2028 937−449−6748 Email: cgentry@porterwright.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen M Trafford Porter Wright Morris & Arthur − 2 41 S High Street Suite 2800 Columbus, OH 43215−6194 614−227−2000 Email: ktrafford@porterwright.com ATTORNEY TO BE NOTICED
represented by Diane Devitt Reynolds Bank One, Columbus, NA − 2 Law Department 100 E Broad Street 5th Floor Columbus, OH 43271−0152 614−248−5700 Fax: 614−463−5317 Email: dreynolds@mdmc−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephen M Dane Dane Law LLC 312 Louisiana Avenue Perrysburg, OH 43551−1461 419−873−1814 Fax: 419−873−1815 Email: sdane@fairhousinglaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 14 of 65

Amicus The Arc of the United States
Amicus The Judge David L. Bazelon Center for Mental Health Law
Movant Ohio Association of County Boards Serving People with Developmental Disabilities 73 E. Wilson Bridge Road Suite B1 Worthington, OH 43085 614−431−0616
Movant Henry Lahrmann by his parents and guardians

represented by Stephen M Dane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephen M Dane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Franklin J Hickman Hickman & Lowder Co., L.P.A. Penton Media Building 1300 East Ninth St. Suite 1020 Cleveland, OH 44114 216−861−0360 Fax: 216−861−3113 Email: fhickman@hickman−lowder.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda M. Italiano Gorczynski HICKMAN & LOWDER, L.P.A. 1300 East 9th Street, Suite 1020 Cleveland, OH 44199 216−861−0360 Fax: 216−861−3113 Email: lgorczynski@hickman−lowder.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Richard Harrison Hickman & Lowder 1300 East 9th Street Suite 1020 Cleveland, OH 44114 216−861−0360 Fax: 216−861−3113 Email: jharrison@hickman−lowder.com TERMINATED: 03/10/2020 ATTORNEY TO BE NOTICED
represented by Henry Lahrmann 2356 Coventry Road Columbus, OH 43221 PRO SE
Robert G Cohen Kegler Brown Hill & Ritter − 2 65 E State Street Suite 1800 Columbus, OH 43215−4294 614−462−5400 Email: rcohen@keglerbrown.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 15 of 65

Movant
Elizabeth Lahrmann by her parents and guardians

Jason Hayes Beehler Kegler Brown Hill & Ritter 65 E. State Street Suite 1800 Columbus, OH 43215 Email: jbeehler@keglerbrown.com ATTORNEY TO BE NOTICED
John Paul Brody Kegler Brown Hill & Ritter − 2 65 E State Street Suite 1800 Columbus, OH 43215−4294 614−462−5400 Fax: 614−462−5456 Email: jbrody@keglerbrown.com ATTORNEY TO BE NOTICED
Roger Philip Sugarman Kegler Brown Hill & Ritter − 2 65 E State Street Suite 1800 Columbus, OH 43215−4294 614−462−5400 Fax: 614−462−5422 Email: rsugarman@keglerbrown.com ATTORNEY TO BE NOTICED
William Choslovsky Ginsberg Jacobs LLC 300 South Wacker Drive, Suite 2750 Chicago, IL 60606 312−660−2202 Fax: 312−660−9612 Email: wchoslovsky@ginsbergjacobs.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Elizabeth Lahrmann 2359 Coventry Road Columbus, OH 43221 PRO SE
Robert G Cohen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Hayes Beehler (See above for address) ATTORNEY TO BE NOTICED
John Paul Brody (See above for address) ATTORNEY TO BE NOTICED
Roger Philip Sugarman (See above for address) ATTORNEY TO BE NOTICED
William Choslovsky (See above for address)

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 16 of 65

Movant Kelly Jones by her parent and guardian
Movant Shawna Klein by her father and guardian
Movant Garry Wojciak by his sister and guardian

PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Kelly Jones 20940 Valley Forge Drive Fairview Park, OH 44126 PRO SE
Robert G Cohen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Hayes Beehler (See above for address) ATTORNEY TO BE NOTICED
John Paul Brody (See above for address) ATTORNEY TO BE NOTICED
Roger Philip Sugarman (See above for address) ATTORNEY TO BE NOTICED
William Choslovsky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Shawna Klein 2356 Sherwood Court Xenia, OH 45385 PRO SE
Robert G Cohen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Hayes Beehler (See above for address) ATTORNEY TO BE NOTICED
John Paul Brody (See above for address) ATTORNEY TO BE NOTICED
Roger Philip Sugarman (See above for address) ATTORNEY TO BE NOTICED
William Choslovsky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Garry Wojciak 5793 West Breezeway North Ridgeville, OH 44039

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 17 of 65

Movant Elizabeth Colombo by her parents and guardians
Movant Glenn Baxter by his sister and guardian

PRO SE
Robert G Cohen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Hayes Beehler (See above for address) ATTORNEY TO BE NOTICED
John Paul Brody (See above for address) ATTORNEY TO BE NOTICED
Roger Philip Sugarman (See above for address) ATTORNEY TO BE NOTICED
William Choslovsky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Elizabeth Colombo 735 Flagstone Circle Brunswick, OH 44212 PRO SE
Robert G Cohen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Hayes Beehler (See above for address) ATTORNEY TO BE NOTICED
John Paul Brody (See above for address) ATTORNEY TO BE NOTICED
Roger Philip Sugarman (See above for address) ATTORNEY TO BE NOTICED
William Choslovsky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Glenn Baxter 1087 Shawnee Drive VanWert, OH 45891 PRO SE
Robert G Cohen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Hayes Beehler

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 18 of 65

Movant Barbara Meola by her sister and guardian
Movant Mary Anne Meola by her sister and guardian

(See above for address) ATTORNEY TO BE NOTICED
John Paul Brody (See above for address) ATTORNEY TO BE NOTICED
Roger Philip Sugarman (See above for address) ATTORNEY TO BE NOTICED
William Choslovsky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Barbara Meola 2379 Amberwood Circle NE Massillon, OH 44646 PRO SE
Robert G Cohen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Hayes Beehler (See above for address) ATTORNEY TO BE NOTICED
John Paul Brody (See above for address) ATTORNEY TO BE NOTICED
Roger Philip Sugarman (See above for address) ATTORNEY TO BE NOTICED
William Choslovsky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Mary Anne Meola 2379 Amberwood Circle NE Massillon, OH 44646 PRO SE
Robert G Cohen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Hayes Beehler (See above for address) ATTORNEY TO BE NOTICED
John Paul Brody (See above for address) ATTORNEY TO BE NOTICED
Roger Philip Sugarman

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 19 of 65

Movant Tim Collett by his guardian
Movant Anita L. Ray
Movant Frank R. Magoto address unknown Movant Melissa W. Bixler, Ph.D Parent, guardian and pro se counsel for Tyler Wells Baxler
Movant Steven J. Frasher by his guardian, Julie Mitchell
Movant David James Ott by his mother and guardian

(See above for address) ATTORNEY TO BE NOTICED
represented by Tim Collett 3894 Mark Court Cincinnati, OH 45255 PRO SE
Robert G Cohen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Hayes Beehler (See above for address) ATTORNEY TO BE NOTICED
John Paul Brody (See above for address) ATTORNEY TO BE NOTICED
Roger Philip Sugarman (See above for address) ATTORNEY TO BE NOTICED
William Choslovsky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Anita L. Ray 3841 Walnut Grove Lane Dayton, OH 937−431−0590 PRO SE
represented by Frank R. Magoto PRO SE
represented by Melissa W. Bixler, Ph.D 5302 Baughman Road Zanesville, OH 43701 740−453−2931 PRO SE
represented by Steven J. Frasher 1983 Meander Drive Columbus, OH 43229 PRO SE
represented by David James Ott 2412 Ingleside Avenue #3D Cincinnati, OH 45206 PRO SE

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 20 of 65

Movant Patrick Yahner by his sister and guardian
Movant Michael Chapman and his guardian Robert Chapman (Brother)
Movant Matthew Ortel submitted by his mother and guardian Lisa Fairchild
Movant Jeannie Roberds by Karen Wherry, guardian
Movant Mark J. Gordon by Mrs. Lee L. Yenny
Movant Joseph Klee by his parents and guardians
Movant Mike Niklas submitted by guardian and father
Movant Diane Brooks submitted by brother & guardian
Movant Dominic Alexander submitted by Joyce Alexander, Co−Guardian
Movant Katherine Gilbert submitted by legal guardian Robert F. Gilbert as his attorney William G. Simon
Movant Dana B. Bauer Brother, Legal Guardian and pro se

represented by Patrick Yahner 3633 Rolling Ridge Road NE Canton, OH 44721 PRO SE
represented by Michael Chapman 12245 Gehrig Dr. Jacksonville, FL 32224 PRO SE
represented by Matthew Ortel Stillwater Center 8100 North Main Street Dayton, OH 45415 PRO SE
represented by Jeannie Roberds 451 Moorewood Circle Dayton, OH 45415 PRO SE
represented by Mark J. Gordon 23547 Quail Hollow Westlake, OH 44145 PRO SE
represented by Joseph Klee 4 Holyoke Court Fairfield, OH 45014 PRO SE
represented by Dana B. Bauer 2354 Copley Avenue

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 21 of 65

counsel for Keith A. Bauer
Movant Shuntate M. Johnson by parent Willie M. Johnson
Movant Jesse Coffield by his parents Robin & Jerry Coffield
Movant Linda Sue Wagler by her mother and guardian Mary Wagler
Movant Scott A. Link by Thomas L. Link, father and guardian
Movant Richard Stalko by John Laurd, Guardian and Brother
Movant Steven Tomassini by Margret Gfoeller, parent and guardian
Movant Judith A LaMusga Guardian on behalf of Latisha Haskins
Movant Lisa Freson Mother, guardian and pro se counsel for Lauren Freson
Movant Caroline A. Lahrmann

Fairborn, OH 45324 937−319−6138 PRO SE
represented by Shuntate M. Johnson Stillwater Center 8100 North Main Street Dayton, OH 45415 PRO SE
represented by Jesse Coffield 767 Conservation Cir Fairborn, OH 45324 PRO SE
represented by Linda Sue Wagler 10720 Middlebranch Ave NE Hartville, OH 44632 PRO SE
represented by Scott A. Link 327 Heather Street Englewood, OH 45322 PRO SE
represented by Richard Stalko 161 Swartz Road Akron, OH 44319 PRO SE
represented by Steven Tomassini PO Box 76 Fremont, OH 43420 PRO SE
represented by Judith A LaMusga 130 W. Second Street Suite 1900 Dayton, OH 45402 PRO SE
represented by Lisa Freson 9800 Kelly Dr. Loveland, OH 45140 PRO SE
represented by Caroline A. Lahrmann 2359 Coventry Road Columbus, OH 43221 PRO SE

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 22 of 65

Movant Jonathan F. Miller bu his parents and guardians
Movant Jon Larsen by his guardian
Movant Shane Davis by James Davis, Father and Legal Guardian
Movant John A. Guira by Dr. Alex C. Guira, Father and Guardian
Movant James Young by Casondra Hand, Mother and Guardian
Movant Sylvia Porter by Shirley A. Marbury
Movant

Robert G Cohen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Hayes Beehler (See above for address) ATTORNEY TO BE NOTICED
John Paul Brody (See above for address) ATTORNEY TO BE NOTICED
Roger Philip Sugarman (See above for address) ATTORNEY TO BE NOTICED
William Choslovsky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jonathan F. Miller 13 Arrowhead Drive Fredericktown, OH 43019 PRO SE
represented by Jon Larsen 3735 Crosswood Drive Beavercreek, OH 45430 PRO SE
represented by Shane Davis 1215 Taft Street Sidney, OH 45365 PRO SE
represented by John A. Guira 5 Foxglove Lane Savanah, GA 31411 PRO SE
represented by James Young 4864 Sheller Ave Dayton, OH 45432 PRO SE
represented by Sylvia Porter Stillwater Center 8100 North Main Street Dayton, OH 45415 PRO SE

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 23 of 65

Wendi Gillespie submitted by Sam Gillespie, Father & Guardian
Movant James Blue submitted by Jack L. Blue, Guardian and Brother
Movant James Blue submitted by Carol A. Lincicome, Guardian and Sister
Movant Frank Urbanek submitted by Frances Burke, Guardian and Pro Se Counsel
Movant James F. Torch submitted by Glenda J. Burke, Guardian and Sister
Movant Steven L. Torch submitted by Glenda J. Burke, Guardian and Sister
Movant C. William Purcell Guardian of John William Purcell
Movant Luanne West Sister/Guardian and pro se counsel for Mark Morris
Movant George A. Blue Brother, Guardian for James Blue
Movant Doug Koebel by his guardian(s)

represented by Wendi Gillespie 496 Military Road Zanesville, OH 43701 PRO SE
represented by James Blue 806 Elberon Ave. Zanesville, OH 43701 PRO SE
represented by James Blue 3380 Morris Drive #216 Zanesville, OH 43701 PRO SE
represented by Frank Urbanek 597 Old Brick Road Woodsfield, OH 43793 PRO SE
represented by James F. Torch 1471 Roxford Church Road SE Dennison, OH 44621 PRO SE
represented by Steven L. Torch 1471 Roxford Church Road SE Dennison, OH 44621 PRO SE
represented by C. William Purcell 1221 N. Picketwire Lane Pueblo West, CO 81007 PRO SE
represented by Luanne West PO Box 63 Warsaw, OH 43844 740−824−8334 PRO SE
represented by George A. Blue 4280 Cherlick Dr. Zanesville, OH 43701 740−454−6574 PRO SE
represented by Doug Koebel 3971 Hoover Road #281

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 24 of 65

Movant Craig Handlin by his parents and guardians
Movant Mary Jo Conroy by Karen Herrmann, sister/guardian
Movant Kevin Davis by guardians and parents
Movant Randy Piwricki by guardian Theresa McKinniss
Movant Martha Forquer by her guardians
Movant Gordon Zorich by his father and guardian
Movant Anthony J. Rotolo by his guardians
Movant Carolyn Sue Indiciani by her sister and guardian
Movant Frank Garritano by his sister and guardian
Movant

Grove City, OH 43123 PRO SE
represented by Craig Handlin 5525 Blacklick Eastern Rd Pickerington, OH 43147 PRO SE
represented by Mary Jo Conroy 2411 Brookwood Road Columbus, OH 43209 PRO SE
represented by Kevin Davis 2725 Eugene Avenue Grove City, OH 43123 PRO SE
represented by Randy Piwricki 4356 Monterey Court Columbus, OH 43207 PRO SE
represented by Martha Forquer 4740 Dierker Road Columbus, OH 43220 PRO SE
represented by Gordon Zorich 1982 Farmbrook Circle North Grove City, OH 43123 PRO SE
represented by Anthony J. Rotolo 2720 Scioto Station Drive Columbus, OH 43204 PRO SE
represented by Carolyn Sue Indiciani 3165 Saybrook Court Dublin, OH 43017 PRO SE
represented by Frank Garritano 7475 Scioto Parkway Powell, OH 43065 PRO SE
represented by

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 25 of 65

Daniel J. Whitacre by his guardians
Movant Josephine L. Zamarelli by her guardians
Movant Donald Wire by guardian Martha Cornwell
Movant Greg Wasylik by his guardian Martha Cornwell
Movant Linda S. Kiplinger by her sister and guardian
Movant Thomas E. DeMatteo by his guardians
Movant Lisa M. Swisshelm by her guardian
Movant Jeffrey Harris by his parent and guardian
Movant Jessica Alexander by her mother and step−father
Movant Amy Humphrey by her parent and guardian

Daniel J. Whitacre 1203 Amberlea Drive West Gahanna, OH 43230 PRO SE
represented by Josephine L. Zamarelli 5878 Quail Run Drive Grove City, OH 43123 PRO SE
represented by Donald Wire 3054 Minerva Lake Road Columbus, OH 43231 PRO SE
represented by Greg Wasylik 3054 Minerva Lake Road Columbus, OH 43231 PRO SE
represented by Linda S. Kiplinger 360 Scottsdale Court Westerville, OH 43082 PRO SE
represented by Thomas E. DeMatteo 4959 Warmaster Drive Columbus, OH 43232 PRO SE
represented by Lisa M. Swisshelm 716 Tami Sue Court Westerville, OH 43082 PRO SE
represented by Jeffrey Harris 319 Rankin Drive Englewood, OH 45322 PRO SE
represented by Jessica Alexander Stillwater Center 8100 Nort Main Street Dayton, OH 45415 PRO SE
represented by Amy Humphrey 2470 S Pleasant Grove Road Zanesville, OH 43701 PRO SE

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 26 of 65

Movant Lisa Paul Siter, guardian and pro secounsel for Mitchell Paul
Movant Kerry O. Billington by his guardian and father
Movant Andrew Panasek by his guardian
Movant Amanda Bolyard by her guardian
Movant Mark Burkholder by his guardian
Movant Melissa Gross by her guardian
Movant Emily Spisak by her guardians
Movant Elizabeth M. John by her parent/guardian
Movant David R. Miller by his guardian and brother
Movant

represented by Lisa Paul 2424 West Chicago Avenue #401 Chicago, IL 60622 773−799−8272 PRO SE
represented by Kerry O. Billington 220 Murwood Drive Moreland Hills, OH 44022 PRO SE
represented by Andrew Panasek 2145 Lake Center St NW Uniontown, OH 44685 PRO SE
represented by Amanda Bolyard 8036 Market Ave N Canton, OH 44721 PRO SE
represented by Mark Burkholder 2145 Lake Center St NW Uniontown, OH 44685 PRO SE
represented by Melissa Gross 279 S Portage Path Akron, OH 44302 PRO SE
represented by Emily Spisak 1560 W Royalton Rd Apt 6 Broadview Hts, OH 44147 PRO SE
represented by Elizabeth M. John 4424 Bracken Road SW Canton, OH 44706 PRO SE
represented by David R. Miller 1718 Lynnhurst Rd Columbus, OH 43229 PRO SE

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 27 of 65

Joanie Fischbach Mother, Guardian of Rachel Fischbach
Movant Rebecca M. Stevens Parent Guardian of David K Stevens Jr.
Movant Nada Hanes Mother, Guardian of Stephanie Hanes
Movant Rebecca Toman Mother, Guardian of Sephora Toman
Movant Robert Toman Father, Guardian of Sephora Toman
Movant Peggy Wichert Mother, Guardian of Jaymes Wichert
Movant Lori L. Wise Guardian of Jack Dudley Eckels
Movant Kathleen D. Kunovich Mother/Guardian of Lisa Michele Kunovich Movant

represented by Joanie Fischbach 747 Caven Road Conover, OH 45317 937−726−2246 PRO SE
represented by Rebecca M. Stevens 725 Hawthorne Drive Circleville, OH 43113 740−497−7781 PRO SE
represented by Nada Hanes 46010 Liddle Rd. Jacobsburg, OH 43933−8741 740−391−2890 Email: nadahanes2008@windstream.net PRO SE
represented by Rebecca Toman 9141 Herbert Rd. Canfield, OH 44406 330−533−2566 Email: rstoman04@gmail.com PRO SE
represented by Robert Toman 9141 Herbert Rd. Canfield, OH 44406 330−533−2566 Email: acebob@msn.com PRO SE
represented by Peggy Wichert 1708 Middleton Rd. Hudson, OH 44236 216−533−7122 Email: breakfree1127@yahoo.com PRO SE
represented by Lori L. Wise 11552 Market Ave. N.E. Uniontown, OH 44685 330−877−4209 Email: danlor.lw@gmail.com PRO SE

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 28 of 65

Robert S. Kunovich Father/Guardian of Lisa Michele Kunovich Movant Devon T Pursley Grandmother/Legal Guardian of Mary L. Pursley Movant Julia Martin Mother, Guardian of Tammy Ryen
Movant Wanda Hagan Guardian
Movant Mary Wagler Mother & Guardian of Linda Sue Wagler
Movant Shirley Berrisford Mother & Guardian of Jill Berrisford
Movant Marilyn Hansen Mother of Michael L. Henley
Movant Inice McGaha Mother of Debbie McGaha
Movant Roxanne Schnabel Mother of Melissa McDonald
Movant Theresa McCraw on behalf of

represented by Julia Martin 5676 Benjamin SW Canton, OH 44706 Email: juketa2430@yahoo.com PRO SE
represented by Wanda Hagan 2145 Lake Center NW Uniontown, OH 44685 330−494−8373 PRO SE
represented by Mary Wagler 10720 Middlebranch Av. NE Hartville, OH 44632 PRO SE
represented by Shirley Berrisford 4183 Windsor Bridge Pl. New Albany, OH 43054−7006 PRO SE
represented by Marilyn Hansen 1432 17th Street NW Canton, OH 44703 330−933−5940 Email: marilyn.hansen@aultman.com PRO SE
represented by Inice McGaha 414 Cross Street Newcomerstown, OH 43832 PRO SE
represented by Roxanne Schnabel 2590 Augusta Drive Massillon, OH 44646 Email: Rlk315@gmail.com PRO SE
represented by Theresa McCraw 846 Sackett

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 29 of 65

John Luke McCraw, III
Movant Daniel M. O'Brien Father, Guardian on behalf of Thomas D. O'Brien
Movant Michael Joseph Wichert Father of Jaymes Taylor Wichert
Movant Kim Aebie Mother, Co−legal Guardian of Ryan James Aebie
Movant Todd J. Aebie Father, Co−legal Guardian of Ryan James Aebie
Movant W. Matt Lehner Father of Noah Lehner Yates
Movant Theresa Cattell Sister & Guardian on behalf of Michael J. Kiener Movant Linda Hotze Williams Sister of Robert Wayne Hotze
Movant Selina Ann Jackson Mother, Guardian of Jonathon Lenzer

Cuyahoga Falls, OH 44221 440−454−3568 PRO SE
represented by Daniel M. O'Brien 1173 McCleary Ct. Columbus, OH 43235 614−436−6964 PRO SE
represented by Michael Joseph Wichert 1708 Middleton Rd. Hudson, OH 44236 Email: mpcjcobra@yahoo.com PRO SE
represented by Kim Aebie 2810 Kensington Place East Columbus, OH 43202 614−560−7313 PRO SE
represented by Todd J. Aebie 2810 Kensington Place East Columbus, OH 43202 614−579−0007 PRO SE
represented by W. Matt Lehner 2505 Isabella Blue Drive Powell, OH 43065 614−226−6405 Email: lehner.24@gmail.com PRO SE
represented by Theresa Cattell 3930 Berlin Station Delaware, OH 43015 PRO SE
represented by Linda Hotze Williams 16570 N.W. Chipola Heights Lane Altha, FL 32421 318−623−0508 Email: linda.chipola@gmail.com PRO SE
represented by Selina Ann Jackson 42 Short Vine Street Elsmere, KY 41018 859−982−4368 Email: talk2me9adz@hotmail.com

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 30 of 65

Movant Carlos Lopez Father, Guardian of Cheri Nicole Lopez Movant Cynthia Lopez Mother, Guardian of Cheri Nicole Lopez Cross Claimant Glenn Baxter by his sister and guardian
Cross Claimant Tim Collett by his guardian
Cross Claimant Elizabeth Colombo by her parents and guardians

PRO SE
represented by Carlos Lopez 13906 Leroy Avenue Cleveland, OH 44135 PRO SE
represented by Cynthia Lopez 13906 Leroy Avenue Cleveland, OH 44135 PRO SE
represented by Robert G Cohen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Hayes Beehler (See above for address) ATTORNEY TO BE NOTICED
John Paul Brody (See above for address) ATTORNEY TO BE NOTICED
Roger Philip Sugarman (See above for address) ATTORNEY TO BE NOTICED
William Choslovsky (See above for address) ATTORNEY TO BE NOTICED
represented by Robert G Cohen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Hayes Beehler (See above for address) ATTORNEY TO BE NOTICED
John Paul Brody (See above for address) ATTORNEY TO BE NOTICED
Roger Philip Sugarman (See above for address) ATTORNEY TO BE NOTICED
William Choslovsky (See above for address) ATTORNEY TO BE NOTICED
represented by Robert G Cohen (See above for address) LEAD ATTORNEY

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 31 of 65

Cross Claimant Kelly Jones by her parent and guardian
Cross Claimant Shawna Klein by her father and guardian
Cross Claimant

ATTORNEY TO BE NOTICED
Jason Hayes Beehler (See above for address) ATTORNEY TO BE NOTICED
John Paul Brody (See above for address) ATTORNEY TO BE NOTICED
Roger Philip Sugarman (See above for address) ATTORNEY TO BE NOTICED
William Choslovsky (See above for address) ATTORNEY TO BE NOTICED
represented by Robert G Cohen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Hayes Beehler (See above for address) ATTORNEY TO BE NOTICED
John Paul Brody (See above for address) ATTORNEY TO BE NOTICED
Roger Philip Sugarman (See above for address) ATTORNEY TO BE NOTICED
William Choslovsky (See above for address) ATTORNEY TO BE NOTICED
represented by Robert G Cohen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Hayes Beehler (See above for address) ATTORNEY TO BE NOTICED
John Paul Brody (See above for address) ATTORNEY TO BE NOTICED
Roger Philip Sugarman (See above for address) ATTORNEY TO BE NOTICED
William Choslovsky (See above for address) ATTORNEY TO BE NOTICED

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 32 of 65

Caroline A. Lahrmann
Cross Claimant Elizabeth Lahrmann by her parents and guardians
Cross Claimant Henry Lahrmann by his parents and guardians

represented by Robert G Cohen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Hayes Beehler (See above for address) ATTORNEY TO BE NOTICED
John Paul Brody (See above for address) ATTORNEY TO BE NOTICED
Roger Philip Sugarman (See above for address) ATTORNEY TO BE NOTICED
William Choslovsky (See above for address) ATTORNEY TO BE NOTICED
represented by Robert G Cohen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Hayes Beehler (See above for address) ATTORNEY TO BE NOTICED
John Paul Brody (See above for address) ATTORNEY TO BE NOTICED
Roger Philip Sugarman (See above for address) ATTORNEY TO BE NOTICED
William Choslovsky (See above for address) ATTORNEY TO BE NOTICED
represented by Robert G Cohen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Hayes Beehler (See above for address) ATTORNEY TO BE NOTICED
John Paul Brody (See above for address) ATTORNEY TO BE NOTICED
Roger Philip Sugarman (See above for address) ATTORNEY TO BE NOTICED
William Choslovsky (See above for address) ATTORNEY TO BE NOTICED

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 33 of 65

Cross Claimant Barbara Meola by her sister and guardian
Cross Claimant Mary Anne Meola by her sister and guardian
Cross Claimant Garry Wojciak by his sister and guardian

represented by Robert G Cohen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Hayes Beehler (See above for address) ATTORNEY TO BE NOTICED
John Paul Brody (See above for address) ATTORNEY TO BE NOTICED
Roger Philip Sugarman (See above for address) ATTORNEY TO BE NOTICED
William Choslovsky (See above for address) ATTORNEY TO BE NOTICED
represented by Robert G Cohen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Hayes Beehler (See above for address) ATTORNEY TO BE NOTICED
John Paul Brody (See above for address) ATTORNEY TO BE NOTICED
Roger Philip Sugarman (See above for address) ATTORNEY TO BE NOTICED
represented by Robert G Cohen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Hayes Beehler (See above for address) ATTORNEY TO BE NOTICED
John Paul Brody (See above for address) ATTORNEY TO BE NOTICED
Roger Philip Sugarman (See above for address) ATTORNEY TO BE NOTICED
William Choslovsky (See above for address) ATTORNEY TO BE NOTICED

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 34 of 65

V. Cross Defendant Governor John Kasich in his official capacity
Cross Defendant Director John Martin in his official capacity
Cross Defendant Ohio Association of County Boards Serving People with Developmental Disabilities
Cross Defendant Barbara Sears Ohio Department of Medicaid, in her official capacity

represented by Zachery Paul Keller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan L. Richardson (See above for address) TERMINATED: 01/23/2018
Sarah Elaine Pierce (See above for address) TERMINATED: 06/05/2019 ATTORNEY TO BE NOTICED
Tiffany L. Carwile (See above for address) ATTORNEY TO BE NOTICED
represented by Larry Holliday James (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank David Tice , V (See above for address) ATTORNEY TO BE NOTICED
Robert Charles Buchbinder (See above for address) ATTORNEY TO BE NOTICED
Vincent James Lodico (See above for address) ATTORNEY TO BE NOTICED
represented by Franklin J Hickman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda M. Italiano Gorczynski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Richard Harrison (See above for address) TERMINATED: 03/10/2020 ATTORNEY TO BE NOTICED
represented by Allan K Showalter (See above for address) TERMINATED: 11/22/2017 LEAD ATTORNEY
Julie E Brigner

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 35 of 65
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Larry Holliday James (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin T. Radic (See above for address) TERMINATED: 01/14/2019

Date Filed 03/31/2016 03/31/2016 03/31/2016
04/01/2016 04/01/2016 04/01/2016
04/01/2016
04/04/2016 04/07/2016 04/11/2016 04/13/2016

# Docket Text
1 COMPLAINT Class Action against All Defendants ( Filing fee $ 400 paid − receipt number: 0648−5442548), filed by Ross Hamilton, Caryl Mason, The Ability Center of Greater Toledo, Antonio Butler, Phyllis Ball, Richard Walters, Nathan Narowitz. (Attachments: # 1 Civil Cover Sheet) (Sjoberg−Witt, Kerstin) (Entered: 03/31/2016)
2 MOTION Appoint Next Friend by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, Nathan Narowitz, The Ability Center of Greater Toledo, Richard Walters. Responses due by 4/25/2016 (Sjoberg−Witt, Kerstin) (Entered: 03/31/2016)
3 MOTION for Leave to Appear Pro Hac Vice of Neil R. Ellis (Filing fee $ 200, receipt number 0648−5443991) by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, Nathan Narowitz, The Ability Center of Greater Toledo, Richard Walters. Responses due by 4/25/2016 (Attachments: # 1 Certificate of Good Standing Neil R. Ellis) (Sjoberg−Witt, Kerstin) (Entered: 03/31/2016)
4 ORDER granting 2 Motion to serve as Next Friend. Signed by Magistrate Judge Elizabeth Preston Deavers on 4/1/2016. (mas) (Entered: 04/01/2016)
5 ORDER granting 3 Motion for Leave to Appear Pro Hac Vice of Neil R. Ellis. Signed by Magistrate Judge Elizabeth Preston Deavers on 4/1/2016. (mas) (Entered: 04/01/2016)
6 MOTION for Leave to Appear Pro Hac Vice of Kristen E. Rau (Filing fee $ 200, receipt number 0648−5445229) by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, Nathan Narowitz, The Ability Center of Greater Toledo, Richard Walters. Responses due by 4/25/2016 (Attachments: # 1 Certificate of Good Standing − Kristen E. Rau) (Sjoberg−Witt, Kerstin) (Entered: 04/01/2016)
7 MOTION for Leave to Appear Pro Hac Vice of Cathy E. Costanzo, Anna M. Krieger, Kathryn Lesley Rucker (Filing fee $ 600, receipt number 200COL041755) by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, Nathan Narowitz, The Ability Center of Greater Toledo, Richard Walters. Responses due by 4/25/2016 (Attachments: # 1 Certificate of Good Standing − Cathy E. Costanzo, # 2 Certificate of Good Standing − Anna M. Krieger, # 3 Certificate of Good Standing − Kathryn Lesley Rucker) (Sjoberg−Witt, Kerstin) (Entered: 04/01/2016)
8 ORDER Granting Plts' Motions 6 & 7 for Leave to Appear Pro Hac Vice of Kristen E. Rau, Cathy E. Costanzo, Anna M. Krieger, and Kathryn Lesley Rucker. Signed by Magistrate Judge Elizabeth Preston Deavers on 4/4/2016. (sln) (Entered: 04/04/2016)
9 NOTICE of Appearance by Larry Holliday James for Defendant John Martin (James, Larry) (Entered: 04/07/2016)
10 RELATED CASE MEMORANDUM ORDER: The Judges agree that this case and case number 2:89−cv−362 ARE related. Case reassigned to Chief Judge Edmund A. Sargus for all further proceedings. Signed by Judge George C. Smith on 4/11/16. (lvw) (Entered: 04/11/2016)
11 WAIVER OF SERVICE Returned Executed. Waiver sent to John Martin on 4/6/2016, answer due 6/6/2016. (Sjoberg−Witt, Kerstin) (Entered: 04/13/2016)

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04/13/2016 04/13/2016 04/25/2016 05/02/2016 05/09/2016 05/16/2016 05/26/2016 05/26/2016
05/27/2016 05/27/2016 05/31/2016
06/01/2016 06/01/2016
06/01/2016
06/02/2016 06/21/2016 06/27/2016 06/27/2016

12 WAIVER OF SERVICE Returned Executed. Waiver sent to John McCarthy on 4/6/2016, answer due 6/6/2016. (Sjoberg−Witt, Kerstin) (Entered: 04/13/2016)
13 WAIVER OF SERVICE Returned Executed. Waiver sent to Kevin Miller on 4/6/2016, answer due 6/6/2016. (Sjoberg−Witt, Kerstin) (Entered: 04/13/2016)
14 NOTICE of Appearance by Jeffrey Jarosch for Defendants John McCarthy, Kevin Miller (Jarosch, Jeffrey) (Entered: 04/25/2016)
15 NOTICE of Appearance by Allan K Showalter for Defendants John McCarthy, Kevin Miller (Showalter, Allan) (Entered: 05/02/2016)
16 MOTION to Dismiss , MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Defendant Kevin Miller. Responses due by 6/3/2016 (Jarosch, Jeffrey) (Entered: 05/09/2016)
17 WAIVER OF SERVICE Returned Executed. Waiver sent to John Kasich on 4/15/2016, answer due 6/14/2016. (Sjoberg−Witt, Kerstin) (Entered: 05/16/2016)
18 MOTION for Extension of Time New date requested 6/27/2016. by Defendants John Martin and John McCarthy. Responses due by 6/27/2016 (James, Larry) Modified on 5/27/2016 to correct filing parties(agm). (Entered: 05/26/2016)
19 RESPONSE to Motion re 18 MOTION for Extension of Time New date requested 6/27/2016. filed by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, Nathan Narowitz, The Ability Center of Greater Toledo, Richard Walters. (Sjoberg−Witt, Kerstin) (Entered: 05/26/2016)
20 ORDER granting 18 Motion for Extension of Time to Move or Plead. Signed by Magistrate Judge Elizabeth Preston Deavers on 5/27/2016. (mas) (Entered: 05/27/2016)
Set/Reset Deadlines: John Kasich answer due 6/27/2016; John Martin answer due 6/27/2016; John McCarthy answer due 6/27/2016. (mas) (Entered: 05/27/2016)
21 MOTION for Extension of Time to File Response/Reply as to 16 MOTION to Dismiss MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM New date requested 7/27/2016. by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, Nathan Narowitz, The Ability Center of Greater Toledo, Richard Walters. Responses due by 7/27/2016 (Sjoberg−Witt, Kerstin) (Entered: 05/31/2016)
22 NOTICE of Appearance by Ryan L. Richardson for Defendant John Kasich (Richardson, Ryan) (Entered: 06/01/2016)
23 ORDER granting 21 Motion for Extension of Time to File Response re 16 MOTION to Dismiss MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Responses due by 7/27/2016. Signed by Magistrate Judge Elizabeth Preston Deavers on 6/1/2016. (mas) (Entered: 06/01/2016)
24 MOTION for Leave to Appear Pro Hac Vice of Samuel R. Bagenstos (Filing fee $ 200, receipt number 0648−5519338) by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, Nathan Narowitz, The Ability Center of Greater Toledo, Richard Walters. Responses due by 6/27/2016 (Attachments: # 1 Exhibit Certificate of Good Standing Samuel R. Bagenstos) (Sjoberg−Witt, Kerstin) (Entered: 06/01/2016)
25 ORDER Granting 24 Plts' Motion for Leave to Appear Pro Hac Vice of Samuel R. Bagenstos. Signed by Magistrate Judge Elizabeth Preston Deavers on 6/2/2016. (sln) (Entered: 06/02/2016)
26 NOTICE of Appearance by Robert Charles Buchbinder for Defendant John Martin (Buchbinder, Robert) (Entered: 06/21/2016)
27 MOTION to Dismiss by Defendants John Martin, John McCarthy. Responses due by 7/21/2016 (Attachments: # 1 Exhibit Consent Order, # 2 Exhibit Third Amended Class Action Complaint) (James, Larry) (Entered: 06/27/2016)
28 MOTION to Dismiss for Lack of Jurisdiction and to Dismiss Party by Defendant John Kasich. Responses due by 7/21/2016 (Attachments: # 1 Exhibit A Exeucitve Order2011−02K) (Richardson, Ryan) (Entered: 06/27/2016)

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 37 of 65

06/28/2016 06/28/2016 06/28/2016 06/29/2016 07/04/2016 07/27/2016
08/07/2016 08/08/2016 08/08/2016 08/12/2016 08/16/2016
08/17/2016 08/22/2016 08/22/2016 08/22/2016

29 NOTICE of Hearing: Preliminary Pretrial Conference set for 7/28/2016 11:00 AM in Chambers before Magistrate Judge Elizabeth Preston Deavers. (sln) (Entered: 06/28/2016)
30 NOTICE of Change in Hearing: Preliminary Pretrial Conference reset for 7/26/2016 02:00 PM in Chambers before Magistrate Judge Elizabeth Preston Deavers. (Previously set for 7/28/2016.) (sln) (Entered: 06/28/2016)
31 MOTION to Continue Preliminary Pretrial Conference by Defendants John McCarthy, Kevin Miller. Responses due by 7/22/2016 (Jarosch, Jeffrey) (Entered: 06/28/2016)
32 NOTATION ORDER granting 31 Motion to Continue Preliminary Pretrial Conference. The Court will reschedule the conference by separate Order. Signed by Magistrate Judge Elizabeth Preston Deavers on 6/29/2016. (EPD) (Entered: 06/29/2016)
33 NOTICE of Hearing: Preliminary Pretrial Conference reset to 8/23/2016 11:00 AM in Chambers before Magistrate Judge Elizabeth Preston Deavers. (sln) (Entered: 07/04/2016)
34 RESPONSE in Opposition re 16 MOTION to Dismiss MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 28 MOTION to Dismiss for Lack of Jurisdiction and to Dismiss Party, 27 MOTION to Dismiss filed by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, Nathan Narowitz, The Ability Center of Greater Toledo, Richard Walters. (Attachments: # 1 Exhibit 1 Transcript of Martin Fairness Hearing, # 2 Exhibit 2 Steward v Abbott Slip Op, # 3 Exhibit 3 Declaration of Sherry Hamilton, # 4 Exhibit 4 Declaration of Jeannine Narowitz) (Sjoberg−Witt, Kerstin) (Entered: 07/27/2016)
35 MOTION for Extension of Time to File New date requested 8/22/2016. by Defendants John Kasich, John Martin, John McCarthy, Kevin Miller. Responses due by 9/1/2016 (James, Larry) (Entered: 08/07/2016)
36 NOTATION ORDER granting 35 Motion for Extension of Time to File Reply. Reply due by 8/22/2016. Signed by Magistrate Judge Elizabeth Preston Deavers on 8/8/2016. (EPD) (Entered: 08/08/2016)
Set/Reset Deadlines as to 27 MOTION to Dismiss , 28 MOTION to Dismiss for Lack of Jurisdiction and to Dismiss Party. Replies due by 8/22/2016. (agm) (Entered: 08/08/2016)
37 RULE 26(f) REPORT by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, Nathan Narowitz, The Ability Center of Greater Toledo, Richard Walters. (Attachments: # 1 Exhibit Proposed Schedule) (Sjoberg−Witt, Kerstin) (Entered: 08/12/2016)
38 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $200 paid, receipt number 0648−5617244) of Kristen A. Knapp by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, Nathan Narowitz, The Ability Center of Greater Toledo, Richard Walters. Responses due by 9/9/2016 (Attachments: # 1 Exhibit Certificate of Good Standing) (Truitt, Kevin) (Entered: 08/16/2016)
39 ORDER Granting 38 Plts' Motion for Leave to Appear Pro Hac Vice of Kristen A. Knapp. Signed by Magistrate Judge Elizabeth Preston Deavers on 8/17/2016. (sln) (Entered: 08/17/2016)
40 REPLY to 34 Response to 16 MOTION to Dismiss FOR FAILURE TO STATE A CLAIM filed by Defendant Kevin Miller. (Jarosch, Jeffrey) Modified text and added link on 8/23/2016 (er). (Entered: 08/22/2016)
41 NOTICE of Interest re 27 MOTION to Dismiss filed by United States. (Graff, Julia) Modified text on 8/23/2016 (er). Modified text on 8/29/2016 (mas). (Entered: 08/22/2016)
42 MOTION to Certify Class with Memorandum in Support by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, Nathan Narowitz, The Ability Center of Greater Toledo, Richard Walters. Responses due by 9/15/2016 (Attachments: # 1 Exhibit 1 − DODD 2016 Annual Report, # 2 Exhibit 2 − In−Home and Residential

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 38 of 65

08/22/2016 08/22/2016 08/23/2016 08/29/2016
08/30/2016 09/07/2016 09/12/2016 09/13/2016
09/13/2016 09/20/2016
09/21/2016 09/23/2016

Long−Term Supports and Services, # 3 Exhibit 3 − Ohio at a Crossroads, # 4 Exhibit 4 − Index to Residential Facilities Guide, # 5 Exhibit 5 − The Future of the ICF−IID Program, # 6 Exhibit 6 − FY16−17 Budget Senate Testimony Martin, # 7 Exhibit 7 − PowerPoint Presentation John Martin, # 8 Exhibit 8 − Ohio's HCBS Transition Plan, # 9 Exhibit 9 − What Are We Waiting For?, # 10 Exhibit 10 − Enhance Community Developmental Disabilities Services, # 11 Exhibit 11 − Request for Proposals: Targeted Options Counseling for Residents of ICFs, # 12 Exhibit 12 − StateData: The National Report on Employment Services and Outcomes 2014, # 13 Exhibit 13 − Third Quarter Scorecard, # 14 Exhibit 14 − "Scorecard Suggests Progress on Budget Initiatives Has Been Slow", # 15 Exhibit 15 − Year End Scorecard, # 16 Exhibit 16 − Letter from Kate Haller, # 17 Exhibit 17 − Pre−Admissions Counseling, # 18 Exhibit 18 − Employment First Executive Order 2012−05K, # 19 Exhibit 19 − "HCBS Waiver Redesign−Adult Day and Employment Services, # 20 Exhibit 20 − Request for Proposals: ICF Employment Pilots, # 21 Exhibit 21 − Vocational Rehabilitation Case Closure, # 22 Exhibit 22 − OOD Case Closure Form, # 23 Exhibit 23 − List of ADA Class Action Cases, # 24 Exhibit 24 − AR v Dudek Slip Opinion, # 25 Exhibit 25 − Hampe v Hamos Slip Opinion, # 26 Exhibit 26 − Declaration of Kevin Truitt) (Sjoberg−Witt, Kerstin) (Entered: 08/22/2016)
43 REPLY to 34 Response to 27 MOTION to Dismiss filed by Defendants John Martin, John McCarthy. (James, Larry) Modified text and added link on 8/23/2016 (er). (Entered: 08/22/2016)
44 REPLY to 34 Response to 28 MOTION to Dismiss for Lack of Jurisdiction and to Dismiss Party filed by Defendant John Kasich. (Richardson, Ryan) Modified text and added link on 8/23/2016 (er). (Entered: 08/22/2016)
Minute Entry for proceedings held before Magistrate Judge Elizabeth Preston Deavers: Initial Pretrial Conference held on 8/23/2016. (mas) (Entered: 08/30/2016)
45 PRELIMINARY PRETRIAL ORDER. Defendants may file a response to the arguments in the Notice on or before SEPTEMBER 13, 2016. Plaintiffs may file their response to the Notice and Defendants response on or before SEPTEMBER 27, 2016. The Court will reconvene the parties in approximately six (6) weeks to discuss scheduling. Signed by Magistrate Judge Elizabeth Preston Deavers on 8/29/2016. (mas) (Entered: 08/29/2016)
46 NOTICE of Hearing: Pretrial Conference set for 10/11/2016 at 10:00 AM before Magistrate Judge Elizabeth Preston Deavers. (mas) (Entered: 08/30/2016)
47 RE−NOTICE of Hearing: Telephonic Pretrial Conference set for 10/11/2016 at 10:00 AM before Magistrate Judge Elizabeth Preston Deavers. (mas) (Entered: 09/07/2016)
48 NOTICE of Hearing: Telephone Conference set for 9/13/2016 at 04:00 PM in before Magistrate Judge Elizabeth Preston Deavers. (pes) (Entered: 09/12/2016)
49 Supplemental Memorandum Supporting re 27 MOTION to Dismiss in Response to 41 "Statement of Interest of the United States of America" filed by Defendants John Martin, John McCarthy. (Jarosch, Jeffrey) Modified text to add link on 9/14/2016 (agm). (Entered: 09/13/2016)
50 ORDER memorializing the 9/13/16 Telephonic Status Conference. Signed by Magistrate Judge Elizabeth Preston Deavers on 9/13/16. (sem) (Entered: 09/13/2016)
51 Supplemental Memorandum Supporting re 37 Rule 26(f) Report by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, Nathan Narowitz, The Ability Center of Greater Toledo, Richard Walters. (Sjoberg−Witt, Kerstin) (Entered: 09/20/2016)
52 ORDER issued regarding discovery and setting the due date of 1/31/17 for Plaintiffs' Amended Motion for Class Certification. Signed by Magistrate Judge Elizabeth Preston Deavers on 9/21/16. (sem) (Entered: 09/21/2016)
53 Unopposed MOTION to Amend/Correct 42 MOTION to Certify Class with Memorandum in Support by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, Nathan Narowitz, The Ability Center of Greater Toledo, Richard Walters. Responses due by 10/17/2016 (Attachments: # 1 Exhibit Exhibit 1 − Replacement for Doc 42−13) (Sjoberg−Witt, Kerstin) (Entered: 09/23/2016)

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 39 of 65

09/26/2016 09/26/2016 09/27/2016
10/04/2016 10/07/2016 10/11/2016 10/12/2016 10/18/2016 10/24/2016 10/25/2016 11/17/2016
11/17/2016 11/17/2016 11/21/2016 11/29/2016
11/30/2016

54 ORDER granting 53 Motion to Amend/Correct Filing. Signed by Magistrate Judge Elizabeth Preston Deavers on 9/26/2016. (mas) (Entered: 09/26/2016)
55 EXHIBIT 13 to 42 MOTION to Certify Class with Memorandum in Support. (mas) (Entered: 09/26/2016)
56 Reply re 49 Supplemental − Supporting, Response of Defendants Martin and McCarthy by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, Nathan Narowitz, The Ability Center of Greater Toledo, Richard Walters. (Attachments: # 1 Exhibit Exhibit A − Second Declaration of Jeannine Narowitz) (Sjoberg−Witt, Kerstin) (Entered: 09/27/2016)
57 Supplemental Memorandum Supporting re 27 MOTION to Dismiss filed by Defendants John Martin, John McCarthy. (Jarosch, Jeffrey) (Entered: 10/04/2016)
58 NOTICE VACATING 10/11/2016 Telephonic Pretrial Conference. (mas) (Entered: 10/07/2016)
59 Joint MOTION for Extension of Time New date requested 10/24/2016. by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, Nathan Narowitz, The Ability Center of Greater Toledo, Richard Walters. Responses due by 11/4/2016 (Truitt, Kevin) (Entered: 10/11/2016)
60 ORDER granting 59 Motion for Extension of Time. The parties have until OCTOBER 24, 2016 to negotiate a proposed protective order relating to the production and maintenance of ESI. Signed by Magistrate Judge Elizabeth Preston Deavers on 10/12/2016. (mas) (Entered: 10/12/2016)
61 NOTICE of Appearance by Vincent James Lodico for Defendant John Martin (Lodico, Vincent) (Entered: 10/18/2016)
62 Joint MOTION for Extension of Time New date requested 11/4/2016. by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, Nathan Narowitz, The Ability Center of Greater Toledo, Richard Walters. Responses due by 11/17/2016 (Truitt, Kevin) (Entered: 10/24/2016)
63 NOTATION ORDER granting 62 Motion for Extension of Time to file proposed Protective Order and to negotiate production and maintenance of ESI. If agreement cannot be reached by 11/4/2016, parties will contact the Court. Signed by Magistrate Judge Elizabeth Preston Deavers on 10/25/2016. (EPD) (Entered: 10/25/2016)
64 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $400 paid, receipt number 0648−5736203) of Jonathan Warren Muenz, John Gribbin Hutchinson by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, Nathan Narowitz, The Ability Center of Greater Toledo, Richard Walters. Responses due by 12/12/2016 (Attachments: # 1 Exhibit Certificate of Good Standing − Jonathan Warren Muenz, # 2 Exhibit Certificate of Good Standing − John Gribbin Hutchinson) (Sjoberg−Witt, Kerstin) (Entered: 11/17/2016)
65 NOTICE of Hearing: Status Conference set for 11/21/2016 01:30 PM in Teleconference before Magistrate Judge Elizabeth Preston Deavers. (sln) (Entered: 11/17/2016)
66 ORDER Granting Plts' 64 Motion for Leave to Appear Pro Hac Vice of Johathan W. Muenz and John G. Hutchinson. Signed by Magistrate Judge Elizabeth Preston Deavers on 11/17/2016. (sln) (Entered: 11/17/2016)
67 NOTICE of Hearing: Status Conference set for 12/6/2016 01:30 PM in Teleconference before Magistrate Judge Elizabeth Preston Deavers. (sln) (Entered: 11/21/2016)
68 MOTION to Intervene by Intervenor Defendant Ohio Association of County Boards Serving People with Developmental Disabilities. Responses due by 12/23/2016 (Attachments: # 1 Exhibit Proposed Answer of Intervenor−Defendant OACBDD, # 2 Exhibit Affidavit of Bridget Gargan, # 3 Exhibit Consent Order in Martin, et al. v. Strickland, et al.) (Hickman, Franklin) (Entered: 11/29/2016)
69 NOTICE of Appearance by John Richard Harrison for Movant Ohio Association of County Boards Serving People with Developmental Disabilities (Harrison, John) (Entered: 11/30/2016)

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12/06/2016 12/06/2016 12/08/2016 12/12/2016 12/23/2016 01/03/2017 01/04/2017 01/04/2017
01/05/2017 01/05/2017
01/05/2017 01/06/2017
01/17/2017 01/17/2017 01/18/2017 01/23/2017

70 NOTICE of Hearing: Status Conference set for 1/5/2017 10:00 AM in Teleconference before Magistrate Judge Elizabeth Preston Deavers. (sln) (Entered: 12/06/2016)
Minute Entry for proceedings held before Magistrate Judge Elizabeth Preston Deavers: Status Conference held on 12/6/2016. Parties will present proposed protective order and ESI protocol. (Entered: 12/06/2016)
71 NOTICE of Appearance by Frank David Tice, V for Defendant John Martin (Tice, Frank) (Entered: 12/08/2016)
72 STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge Elizabeth Preston Deavers on 12/12/2016. (sln) (Entered: 12/12/2016)
73 RESPONSE in Opposition re 68 MOTION to Intervene filed by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, Nathan Narowitz, The Ability Center of Greater Toledo, Richard Walters. (Sjoberg−Witt, Kerstin) (Entered: 12/23/2016)
74 MOTION for Extension of Time to File Response/Reply as to 73 Response in Opposition to Motion New date requested 1/17/2017. by Movant Ohio Association of County Boards Serving People with Developmental Disabilities. (Hickman, Franklin) (Entered: 01/03/2017)
75 NOTATION ORDER granting 74 Motion for Extension of Time to File Reply to 68 MOTION to Intervene. Reply due by 1/17/2017. Signed by Magistrate Judge Elizabeth Preston Deavers on 1/4/2017. (EPD) (Entered: 01/04/2017)
76 ***WITHDRAWN pursuant to 97 Notice of Withdrawal*** MOTION for Extension of Time to File New date requested 1/17/2017. and Motion for Leave of Defendant Ohio Department of Developmental Disabilities to File a Brief in Support of Intervenor−Defendant Ohio Association of County Boards Serving People with Developmental Disabilities Motion to Intervene by Defendant John Martin. (Buchbinder, Robert) Modified text and terminated motion on 4/11/2017 (agm). (Entered: 01/04/2017)
Set/Reset Deadlines as to 68 MOTION to Intervene . Replies due by 1/17/2017. (agm) (Entered: 01/05/2017)
77 ORDER re 1/5/2017 Telephonic Status Conference: The parties will continue to cooperate to produce on a rolling basis discovery that is not subject to their current disputes and will submit, by JANUARY 17, 2017, letter briefing outlining their arguments as to those areas of discovery to which they object. Signed by Magistrate Judge Elizabeth Preston Deavers on 1/5/2017. (mas) (Entered: 01/05/2017)
Minute Entry for proceedings held before Magistrate Judge Elizabeth Preston Deavers: Status Conference held on 1/5/2017. (sln) (Entered: 01/06/2017)
78 RESPONSE in Opposition re 76 MOTION for Extension of Time to File New date requested 1/17/2017. and Motion for Leave of Defendant Ohio Department of Developmental Disabilities to File a Brief in Support of Intervenor−Defendant Ohio Association of County Boards Serving People filed by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, Nathan Narowitz, The Ability Center of Greater Toledo, Richard Walters. (Sjoberg−Witt, Kerstin) (Entered: 01/06/2017)
79 REPLY to RESPONSE to Motion re 68 MOTION to Intervene filed by Movant Ohio Association of County Boards Serving People with Developmental Disabilities. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Hickman, Franklin) Modified text to correct filing type on 1/19/2017 (agm). (Entered: 01/17/2017)
80 Unopposed MOTION Leave To Withdraw Narowitz As Plaintiff by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, Nathan Narowitz, The Ability Center of Greater Toledo, Richard Walters. (Sjoberg−Witt, Kerstin) (Entered: 01/17/2017)
81 ORDER granting 80 Motion Leave To Withdraw Narowitz As Plaintiff. Signed by Magistrate Judge Elizabeth Preston Deavers on 1/18/2017. (agm) (Entered: 01/18/2017)
82 MOTION to Quash Subpoena of Defendant DODD and/or for an Order Limiting Discovery by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason,

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 41 of 65

02/06/2017 02/09/2017
02/23/2017
03/01/2017 03/02/2017 03/10/2017 03/14/2017 03/23/2017 03/27/2017
03/30/2017
04/04/2017 04/05/2017
04/06/2017 04/07/2017

Nathan Narowitz, The Ability Center of Greater Toledo, Richard Walters. (Attachments: # 1 Exhibit A − Defendants Subpoenas) (Truitt, Kevin) (Entered: 01/23/2017)
83 RESPONSE in Opposition re 82 MOTION to Quash Subpoena of Defendant DODD and/or for an Order Limiting Discovery filed by Defendant John Martin. (Attachments: # 1 Exhibit) (Buchbinder, Robert) (Entered: 02/06/2017)
84 NOTICE by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, Nathan Narowitz, The Ability Center of Greater Toledo, Richard Walters re 34 Response in Opposition to Motion,, of Supplemental Authority (Attachments: # 1 Exhibit 1 − D.O. v. Glisson, No. 16−5461, 2017 WL 382324, at *1 (6th Cir. Jan. 27, 2017)) (Sjoberg−Witt, Kerstin) (Entered: 02/09/2017)
85 REPLY to Response to Motion re 82 MOTION to Quash Subpoena of Defendant DODD and/or for an Order Limiting Discovery filed by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, Nathan Narowitz, The Ability Center of Greater Toledo, Richard Walters. (Attachments: # 1 Exhibit A − Declaration of Kevin Truitt) (Truitt, Kevin) (Entered: 02/23/2017)
86 NOTICE by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, The Ability Center of Greater Toledo, Richard Walters of Withdrawal of Co−Counsel (Sjoberg−Witt, Kerstin) (Entered: 03/01/2017)
87 NOTICE of Hearing: Status Conference set for 3/14/2017 03:30 PM in Teleconference before Magistrate Judge Elizabeth Preston Deavers. (sln) (Entered: 03/02/2017)
88 MOTION for Leave to File Sur−Reply In Opposition to Plaintiffs' Reply in Support of Their Motion to Quash DODD's Subpoena by Defendant John Martin. (Tice, Frank) (Entered: 03/10/2017)
89 NOTICE of Hearing: Status Conference set for 4/18/2017 03:30 PM in Teleconference before Magistrate Judge Elizabeth Preston Deavers. (sln) (Entered: 03/14/2017)
90 OPINION AND ORDER denying 16 Defendant Kevin Miller's Motion to Dismiss; granting in part and denying in part 28 Defendant John Kasich's Motion to Dismiss; and denying 27 Defendants John McCarthy's and John Martin's Motion to Dismiss. Signed by Chief Judge Edmund A. Sargus on 03/23/2017. (dh1) (Entered: 03/23/2017)
91 OPINION AND ORDER granting 42 Plaintiff's unopposed Motion for Class Certification pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(2). The Court designates Disability Rights Ohio, Sidley Austin, LLP, Samuel Bagenstos, and the Center for Public Representation as co−class counsel. Signed by Chief Judge Edmund A. Sargus on 03/27/17. (dh1) (Entered: 03/27/2017)
92 MOTION to Expedite Reconsideration of the Court's Opinion and Order Granting Plaintiffs' Motion for Class Certification, MOTION for Reconsideration re 91 Order on Motion to Certify Class, ( Responses due by 4/20/2017) by Defendants John Kasich, John Martin, John McCarthy, Kevin Miller. (Attachments: # 1 Exhibit) (Buchbinder, Robert) (Entered: 03/30/2017)
93 NOTICE of Hearing: Status Conference set for 4/7/2017 11:30 AM in Teleconference before Magistrate Judge Elizabeth Preston Deavers. (sln) (Entered: 04/04/2017)
94 RESPONSE to Motion re 92 MOTION to Expedite Reconsideration of the Court's Opinion and Order Granting Plaintiffs' Motion for Class Certification MOTION for Reconsideration re 91 Order on Motion to Certify Class, filed by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, The Ability Center of Greater Toledo, Richard Walters. (Attachments: # 1 Exhibit A − Declaration of Alison McKay) (Truitt, Kevin) (Entered: 04/05/2017)
95 MOTION for Extension of Time to File Answer New date requested 4/20/2017. by Defendants John Kasich, John Martin, John McCarthy, Kevin Miller. (James, Larry) (Entered: 04/06/2017)
96 ORDER granting 95 Motion for Extension of Time to File Answer. The named Defendants must file their Answer by 4/20/2017. The new deadline for conducting class−based discovery is 5/19/2017; the new deadline for Defendants to file their

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 42 of 65

04/10/2017
04/12/2017
04/14/2017 04/14/2017 04/14/2017 04/14/2017 04/14/2017 04/14/2017 04/17/2017
04/18/2017 04/18/2017 04/19/2017 04/20/2017 04/20/2017 04/20/2017 04/20/2017

Memorandum in Opposition to Plaintiffs Motion for Class Certification is 6/16/2017; and Plaintiffs Reply in Support of their Motion for Class Certification is due 7/14/2017. Signed by Magistrate Judge Elizabeth Preston Deavers on 4/7/2017. (kdp) (Entered: 04/07/2017)
97 NOTICE OF WITHDRAWAL OF DOCUMENT by Defendant John Martin re 76 MOTION for Extension of Time to File New date requested 1/17/2017. and Motion for Leave of Defendant Ohio Department of Developmental Disabilities to File a Brief in Support of Intervenor−Defendant Ohio Association of County Boards Serving People (Buchbinder, Robert) (Entered: 04/10/2017)
98 ORDER granting 92 Defendants' Motion to Expedite Reconsideration of the Court's Opinion on Plaintiff's Motion for Class Certification. The Court's Opinion and Order granting Plaintiffs' Motion for Class Certification 91 is vacated. Upon completion of the briefing schedule set by Magistrate Judge Deavers on 04/07/17, the Court will reconsider Plaintiffs' currently pending Motion for Class Certification 42 . Signed by Chief Judge Edmund A. Sargus on 04/12/2017. (dh1) (Entered: 04/12/2017)
99 NOTICE by Defendants John McCarthy, Kevin Miller of Substitution of Trial Attorney (Showalter, Allan) (Entered: 04/14/2017)
100 NOTICE by Defendant John Martin of Deposition of Guardian and Next Friend Cathy Mason Jordan on Behalf of Plaintiff Caryl Mason (Buchbinder, Robert) (Entered: 04/14/2017)
101 NOTICE by Defendant John Martin of Deposition of Guardian and Next Friend Linda Walters on Behalf of Plaintiff Richard Walters (Buchbinder, Robert) (Entered: 04/14/2017)
102 NOTICE by Defendant John Martin of Deposition of Guardian and Next Friend Sherry Hamilton on behalf of Plaintiff Ross Hamilton (Buchbinder, Robert) (Entered: 04/14/2017)
103 NOTICE by Defendant John Martin of Deposition of Guardian and Next Friend Phyllis Burba on behalf of Plaintiff Phyllis Ball (Buchbinder, Robert) (Entered: 04/14/2017)
104 NOTICE by Defendant John Martin of Deposition of Plaintiff Antonio (Tony) Butler (Buchbinder, Robert) (Entered: 04/14/2017)
105 NOTATION ORDER granting 88 Motion for Leave to File Sur−Reply in Opposition to Plaintiffs' Reply in Support of their Motion to Quash DODD's Subpoena. The Court will take the Sur−Reply under advisement in considering the Motion to Quash. Signed by Magistrate Judge Elizabeth Preston Deavers on 4/17/2017. (EPD) (Entered: 04/17/2017)
106 NOTICE of Hearing: Status Conference set for 5/18/2017 01:30 PM in Teleconference before Magistrate Judge Elizabeth Preston Deavers. (sln) (Entered: 04/18/2017)
Minute Entry for proceedings held before Magistrate Judge Elizabeth Preston Deavers: Status Conference held on 4/18/2017. (sln) (Entered: 04/25/2017)
107 MOTION to Intervene as Plaintiffs by Movants Henry Lahrmann, Elizabeth Lahrmann, Kelly Jones, Shawna Klein, Garry Wojciak, Elizabeth Colombo, Glenn Baxter, Barbara Meola, Mary Anne Meola, Tim Collett. (agm) (Entered: 04/19/2017)
108 ANSWER to 1 Complaint, filed by John Kasich. (Richardson, Ryan) (Entered: 04/20/2017)
109 ANSWER to 1 Complaint, filed by Barbara Sears. (Showalter, Allan) Modified filed by on 4/24/2017 (er). (Entered: 04/20/2017)
110 ANSWER to 1 Complaint, filed by Kevin Miller. (Showalter, Allan) (Entered: 04/20/2017)
111 Defendant John Martin As Director of The Ohio Department of Developmental Disabilities' ANSWER to 1 Complaint, filed by John Martin. (James, Larry) (Entered: 04/20/2017)

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04/20/2017 04/20/2017 04/20/2017 04/20/2017 04/20/2017 04/25/2017
04/27/2017
04/28/2017 04/28/2017
05/01/2017 05/01/2017 05/01/2017 05/03/2017 05/08/2017 05/08/2017 05/09/2017 05/10/2017 05/10/2017 05/10/2017

112 NOTICE by Defendant John Martin of Amended Deposition Notice of Plaintiff Antonio (Tony) Butler (Buchbinder, Robert) (Entered: 04/20/2017)
113 NOTICE by Defendant John Martin of Amended Deposition Notice of Guardian and Next Friend Linda Walters on Behalf of Plaintiff Richard Walters (Buchbinder, Robert) (Entered: 04/20/2017)
114 NOTICE by Defendant John Martin of Amended Deposition Notice of Guardian and Next Friend Phyllis Burba on behalf of Plaintiff Phyllis Ball (Buchbinder, Robert) (Entered: 04/20/2017)
115 NOTICE by Defendant John Martin of Amended Deposition Notice of Guardian and Next Friend Sherry Hamilton on behalf of Plaintiff Ross Hamilton (Buchbinder, Robert) (Entered: 04/20/2017)
116 NOTICE by Defendant John Martin of Amended Deposition Notice of Guardian and Next Friend Cathy Mason Jordan on Behalf of Plaintiff Caryl Mason (Buchbinder, Robert) (Entered: 04/20/2017)
117 NOTATION ORDER RE: JANUARY 17, 2017 LETTER BRIEFING −− Plaintiff Ability Center's objections to disclosing personally−identifying information, including its constituents' names, social security numbers, and Medicaid numbers is SUSTAINED. Signed by Magistrate Judge Elizabeth Preston Deavers on 4/25/2017. (sln) (Entered: 04/25/2017)
118 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $200 paid, receipt number 0648−5936193) of Thomas Kayes by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, The Ability Center of Greater Toledo, Richard Walters. (Attachments: # 1 Exhibit 1 − Certificate of Good Standing) (Sjoberg−Witt, Kerstin) (Entered: 04/27/2017)
119 ORDER Granting 118 Plts' Motion for Leave to Appear Pro Hac Vice of Thomas Kayes. Signed by Magistrate Judge Elizabeth Preston Deavers on 4/28/2017. (sln) (Entered: 04/28/2017)
120 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $200 paid, receipt number 0648−5938076) of Nicholas Matthew McLean by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, The Ability Center of Greater Toledo, Richard Walters. (Attachments: # 1 Exhibit 1 − Certificate of Good Standing) (Sjoberg−Witt, Kerstin) (Entered: 04/28/2017)
121 ORDER Granting 120 Plts' Motion for Leave to Appear Pro Hac Vice of Nicholas M. McLean. Signed by Magistrate Judge Elizabeth Preston Deavers on 5/1/2017. (sln) (Entered: 05/01/2017)
122 NOTICE of Appearance by Zachery Paul Keller for Defendant John Kasich (Keller, Zachery) (Entered: 05/01/2017)
123 JOINDER IN MOTION to Intervene by Anita L. Ray and Norman S. Ray.. (er) (Entered: 05/02/2017)
124 NOTICE by Defendant John Martin of a 30(B)(6)Deposition of The Ability Center of Greater Toledo (Buchbinder, Robert) (Entered: 05/03/2017)
125 MOTION to Intervene by Movant Frank R. Magoto. (er) (Entered: 05/09/2017)
126 JOINDER in MOTION to Intervene by Movant Melissa W. Bixler, PhD. (er) (Entered: 05/09/2017)
127 JOINDER in MOTION to Intervene by Movant Steven J. Frasher. (agm) (Entered: 05/10/2017)
128 JOINDER in MOTION to Intervene by Movant David James Ott. (agm) (Entered: 05/10/2017)
129 JOINDER in MOTION to Intervene by Movant Patrick Yahner. (agm) (Entered: 05/10/2017)
130 RESPONSE in Opposition re 107 MOTION to Intervene filed by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, The Ability Center of Greater

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 44 of 65

05/10/2017 05/11/2017
05/11/2017 05/11/2017 05/11/2017 05/11/2017 05/11/2017 05/11/2017 05/11/2017 05/12/2017 05/12/2017 05/12/2017 05/12/2017 05/15/2017 05/15/2017 05/15/2017 05/15/2017 05/15/2017 05/16/2017

Toledo, Richard Walters. (Truitt, Kevin) (Entered: 05/10/2017)
131 RESPONSE to Motion re 107 MOTION to Intervene filed by Defendants John Kasich, John Martin, John McCarthy, Kevin Miller. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B) (Showalter, Allan) (Entered: 05/10/2017)
132 ORDER granting 82 Motion to Quash Subpoena and hereby SQUASHES the subpoena issued on behalf of DODD to obtain the medical records of putative class member Nathan Narowitz. Signed by Chief Judge Edmund A. Sargus on 5/10/2017. (mas)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.) (Entered: 05/11/2017)
133 MOTION for Protective Order Concerning Defendant Martin's Rule 30(B)(6) Deposition Notice by Plaintiff The Ability Center of Greater Toledo. (Truitt, Kevin) (Entered: 05/11/2017)
134 NOTICE by Defendants John Kasich, John Martin, Kevin Miller, Barbara Sears re 131 Response to Motion of Supplemental Certificate of Service (Showalter, Allan) (Entered: 05/11/2017)
135 NOTICE by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, The Ability Center of Greater Toledo, Richard Walters re 130 Response in Opposition to Motion Supplemental Certificate of Service (Truitt, Kevin) (Entered: 05/11/2017)
136 NOTICE by Plaintiff The Ability Center of Greater Toledo Motion for Protective Order Concerning Defendant Martins Rule 30(B)(6) Deposition Notice Supplemental Certificate of Service (Truitt, Kevin) (Entered: 05/11/2017)
137 NOTICE of Hearing: Telephone Conference set for 5/12/2017 at 11:00 AM before Chief Judge Edmund A. Sargus. Call in instructions provided in Notice. (mas) (Entered: 05/11/2017)
138 JOINDER in MOTION to Intervene by Movant Michael Chapman. (agm) (Entered: 05/11/2017)
139 JOINDER in MOTION to Intervene by Movant Matthew Ortel. (agm) (Entered: 05/11/2017)
140 ORDER memorializing 5/12/2017 Status Conference. Signed by Chief Judge Edmund A. Sargus on 5/12/2017. (mas) (Entered: 05/12/2017)
141 JOINDER in MOTION to Intervene by Movant Mark J. Gordon. (agm) (Entered: 05/12/2017)
142 JOINDER in MOTION to Intervene by Movant Joseph Klee. (agm) (Entered: 05/12/2017)
143 JOINDER in MOTION to Intervene by Movant Jeannie Roberds. (agm) (Entered: 05/12/2017)
144 JOINDER in MOTION to Intervene filed by Movant Mike Niklas. (sem) (Entered: 05/16/2017)
145 MOTION for Hearing on Motion to Intervene filed by Movants Elizabeth Lahrmann and Henry Lahrmann. (sem) (Entered: 05/16/2017)
146 JOINDER in MOTION to Intervene filed by Movant Diane Brooks. (sem) (Entered: 05/16/2017)
147 JOINDER in MOTION to Intervene filed by Movant Dominic Alexander (by Co−Guardian Joyce Alexander). (sem) Modified text on 5/18/2017 (sem). (Entered: 05/16/2017)
148 JOINDER in MOTION to Intervene filed by Movant Katherine Gilbert. (sem) (Entered: 05/16/2017)
149 CERTIFICATE OF SERVICE filed by Movants Elizabeth Lahrmann and Henry Lahrmann re 145 MOTION for Hearing on Motion to Intervene. (sem) (Entered: 05/16/2017)

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05/17/2017 05/17/2017 05/17/2017
05/17/2017 05/17/2017 05/22/2017
05/22/2017 05/22/2017 05/23/2017 05/23/2017 05/23/2017 05/23/2017 05/24/2017 05/24/2017
05/25/2017 05/26/2017

150 NOTICE of Hearing:Preliminary Pretrial Conference set for 7/6/2017 10:30 AM in Chambers before Magistrate Judge Elizabeth Preston Deavers. (sln)(This document sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.) (Entered: 05/17/2017)
NOTICE : The 5/18/2017 at 1:30 PM Status Conference is VACATED. (sln) (Entered: 05/17/2017)
151 RESPONSE in Opposition re 133 MOTION for Protective Order Concerning Defendant Martin's Rule 30(B)(6) Deposition Notice filed by Defendant John Martin. (Attachments: # 1 Exhibit Defendant's First Set of Interrogatories for Class−Based Discovery Directed to the Ability Center of Greater Toledo, # 2 Exhibit Defendant Dodd's First Set of Requests for Production of Documents Directed to the Ability Center of Greater Toledo, # 3 Exhibit Email to Counsel from Kevin Truitt, # 4 Exhibit Correspondence from Rob Buchbinder to Magistrate Deavers, # 5 Exhibit Plaintiffs January 17, 2017 Letter Briefing to Court, # 6 Exhibit Email of May 4, 2017 From Kerstin Sjoberg−Witt to Counsel, # 7 Exhibit To be filed under seal upon leave of court or by joint stipulationo f the parties) (Buchbinder, Robert) (Entered: 05/17/2017)
152 JOINDER in MOTION to Intervene filed by Movant Dominic Alexander (by Co−Guardian Carmen Alexander). (sem) (Entered: 05/18/2017)
153 Joinder in Motion to Intervene by Movant Dana B. Bauer. (er) (Entered: 05/18/2017)
154 REPLY to Response to Motion re 133 MOTION for Protective Order Concerning Defendant Martin's Rule 30(B)(6) Deposition Notice filed by Plaintiff The Ability Center of Greater Toledo. (Attachments: # 1 Exhibit A − Plaintiffs Responses and Objections to Defendant DODDs First Set of Requests for Production of Documents) (Truitt, Kevin) (Entered: 05/22/2017)
155 MOTION for Joinder to Intervene by Movant Frank R. Magoto. (jlk) (Entered: 05/22/2017)
156 MOTION to File Document Under Seal DEFENDANT DIRECTOR MARTINS UNOPPOSED MOTION FOR LEAVE, INSTANTER by Defendant John Martin. (Attachments: # 1 Proposed Order) (Buchbinder, Robert) (Entered: 05/22/2017)
157 ORDER granting 156 Motion to File Document Under Seal. Signed by Magistrate Judge Norah McCann King on 5/23/2017. (kdp)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.) (Entered: 05/23/2017)
158 CERTIFICATE OF SERVICE by Defendant John Martin re 151 Response in Opposition to Motion,,, 156 MOTION to File Document Under Seal DEFENDANT DIRECTOR MARTINS UNOPPOSED MOTION FOR LEAVE, INSTANTER (Buchbinder, Robert) (Entered: 05/23/2017)
160 JOINDER in MOTION to Intervene by Movant Jesse Coffield. (agm) (Entered: 05/23/2017)
161 JOINDER in MOTION to Intervene by Movant Shuntate M. Johnson. (agm) (Entered: 05/23/2017)
162 NOTICE of Appearance by Julie E Brigner for Defendants Kevin Miller, Barbara Sears (Brigner, Julie) (Entered: 05/24/2017)
163 REPLY to Response to Motion re 107 MOTION to Intervene filed by Movants Glenn Baxter, Tim Collett, Elizabeth Colombo, Kelly Jones, Shawna Klein, Elizabeth Lahrmann, Henry Lahrmann, Barbara Meola, Mary Anne Meola, Garry Wojciak. (agm) (er). Signature page was missing when originally filed on 5/24/2017. The document is now corrected. NEF regenerated. (er). (Entered: 05/24/2017)
170 MOTION for Joinder to Intervene by Movant Judith A LaMusga. (er) (Entered: 05/31/2017)
164 MOTION Permission for VOR, Inc. to File Brief as Amicus Curiae in support of Proposed Intervenors' Motion to Intervene by Amicus VOR, Inc.. (Attachments: # 1 Brief of VOR, Inc. in support of Motion for Permission to File Brief as Amicus Curiae and in support of Proposed Intervenors' Motion to Intervene, # 2 Affidavit of Joanne

Case: 2:16-cv-282 As of: 03/27/2020 12:15 PM EDT 46 of 65

05/26/2017 05/26/2017 05/30/2017 05/30/2017 05/30/2017 05/30/2017 05/31/2017 05/31/2017 06/01/2017 06/01/2017 06/01/2017 06/01/2017 06/02/2017
06/02/2017
06/02/2017
06/02/2017 06/02/2017 06/05/2017 06/05/2017 06/05/2017 06/05/2017

St. Amand in support of VOR, Inc.'s Motion to Participate as Amicus Curiae, # 3 Certificate of Service) (Reynolds, Diane) (Entered: 05/26/2017)
165 Correspondence from Caroline A. Lahrmann to Judge Edmund A. Sargus, Jr., dated 05/26/2017. (dh1) (Entered: 05/26/2017)
171 Joinder in Motion to Intervene by Movant Lisa Freson. (er) (Entered: 05/31/2017)
166 JOINDER in MOTION to Intervene by Movant Scott A. Link. (agm) (Entered: 05/30/2017)
167 JOINDER in MOTION to Intervene by Movant Richard Stalko. (agm) (Entered: 05/30/2017)
168 JOINDER in MOTION to Intervene by Movant Steven Tomassini. (agm) (Entered: 05/30/2017)
169 JOINDER in MOTION to Intervene by Movant Linda Sue Wagler. (agm) (Entered: 05/30/2017)
172 JOINDER in MOTION to Intervene by Movant Jon Larsen. (agm) (Entered: 05/31/2017)
173 JOINDER in MOTION to Intervene by Movant Jonathan F. Miller. (agm) (Entered: 05/31/2017)
174 JOINDER in MOTION to Intervene by Movant Shane Davis. (agm) (Entered: 06/01/2017)
175 JOINDER in MOTION to Intervene by Movant John A. Guira. (agm) (Entered: 06/01/2017)
176 JOINDER in MOTION to Intervene by Movant James Young. (agm) (Entered: 06/01/2017)
177 JOINDER in MOTION to Intervene by Movant Sylvia Porter. (agm) (Entered: 06/01/2017)
178 NOTICE of Appearance by Robert G Cohen for Movants Glenn Baxter, Tim Collett, Elizabeth Colombo, Kelly Jones, Shawna Klein, Caroline A. Lahrmann, Elizabeth Lahrmann, Henry Lahrmann, Barbara Meola, Mary Anne Meola, Garry Wojciak (Cohen, Robert) (Entered: 06/02/2017)
179 NOTICE of Appearance by John Paul Brody for Movants Glenn Baxter, Tim Collett, Elizabeth Colombo, Kelly Jones, Shawna Klein, Caroline A. Lahrmann, Elizabeth Lahrmann, Henry Lahrmann, Barbara Meola, Mary Anne Meola, Garry Wojciak (Brody, John) (Entered: 06/02/2017)
180 NOTICE of Appearance by Jason Hayes Beehler for Movants Glenn Baxter, Tim Collett, Elizabeth Colombo, Kelly Jones, Shawna Klein, Caroline A. Lahrmann, Elizabeth Lahrmann, Henry Lahrmann, Barbara Meola, Mary Anne Meola, Garry Wojciak (Beehler, Jason) (Entered: 06/02/2017)
181 NOTICE of Hearing: Settlement Conference set for 6/5/2017 at 09:00 AM in Chambers before Chief Judge Edmund A. Sargus. (mas) (Entered: 06/02/2017)
182 Joinder in Motion to Intervene filed by Movant Wendi Gillespie. (sem) (Entered: 06/02/2017)
183 Joinder in Motion to Intervene by Movants James F. Torch and Steven L. Torch. (sem) (Entered: 06/06/2017)
184 Joinder in Motion to Intervene by Movant Frank Urbanek. (sem) (Entered: 06/06/2017)
185 Joinder in Motion to Intervene by Movant James Blue (submitted by brother). (sem) (Entered: 06/06/2017)
186 Joinder in Motion to Intervene by Movant James Blue (submitted by sister). (sem) (Entered: 06/06/2017)

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06/05/2017 06/06/2017
06/06/2017 06/06/2017
06/06/2017 06/06/2017
06/06/2017 06/07/2017 06/07/2017 06/08/2017 06/08/2017 06/08/2017 06/08/2017 06/08/2017 06/08/2017 06/08/2017 06/08/2017 06/08/2017 06/08/2017 06/08/2017

Minute Entry for proceedings held before Chief Judge Edmund A. Sargus: Settlement Conference held on 6/5/2017. (Court Reporter: Darla Coulter) (mas) (Entered: 06/06/2017)
187 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $200 paid, receipt number 0648−5985650) of William Choslovsky by Movants Glenn Baxter, Tim Collett, Elizabeth Colombo, Kelly Jones, Shawna Klein, Caroline A. Lahrmann, Elizabeth Lahrmann, Henry Lahrmann, Barbara Meola, Mary Anne Meola, Garry Wojciak. (Attachments: # 1 Certificate of Good Standing for William Choslovsky, # 2 Proposed Order) (Cohen, Robert) (Entered: 06/06/2017)
188 RESPONSE in Opposition re 145 MOTION for Hearing filed by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, The Ability Center of Greater Toledo, Richard Walters. (Sjoberg−Witt, Kerstin) (Entered: 06/06/2017)
189 ORDER re 06/05/17 settlement conference. The parties shall meet for the continued Settlement Conference on 6/30/2017 at 9:00 AM. Signed by Chief Judge Edmund A. Sargus on 06/06/17. (dh1)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.) (Entered: 06/06/2017)
190 Notice VACATING the 7/6/2017 at 10:30 AM Preliminary Pretrial Conference. (sln)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.) (Entered: 06/06/2017)
191 ORDER granting 187 Motion for Leave to Appear Pro Hac Vice of William Choslovsky conditional upon registration for electronic filing. Signed by Magistrate Judge Elizabeth Preston Deavers on June 6, 2017. (jlk)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.) (Entered: 06/06/2017)
192 Joinder in MOTION to Intervene by Movant C. William Purcell. (er) (Entered: 06/06/2017)
193 Joinder in Motion to Intervene by Movant Luanne West. (er) (Entered: 06/09/2017)
194 Joinder in Motion to Intervene by Movant George A. Blue. (er) (Entered: 06/09/2017)
195 JOINDER in MOTION to Intervene by Movant Doug Koebel. (agm) (Entered: 06/09/2017)
196 JOINDER in MOTION to Intervene by Movant Doug Koebel. (agm) (Entered: 06/09/2017)
197 JOINDER in MOTION to Intervene by Movant Craig Handlin. (agm) (Entered: 06/09/2017)
198 JOINDER in MOTION to Intervene by Movant Mary Jo Conroy. (agm) (Entered: 06/09/2017)
199 JOINDER in MOTION to Intervene by Movant Kevin Davis. (agm) (Entered: 06/09/2017)
200 JOINDER in MOTION to Intervene by Movant Randy Piwricki. (agm) (Entered: 06/09/2017)
201 JOINDER in MOTION to Intervene by Movant Martha Forquer. (agm) (Entered: 06/09/2017)
202 JOINDER in MOTION to Intervene by Movant Martha Forquer. (agm) (Entered: 06/09/2017)
203 JOINDER in MOTION to Intervene by Movant Gordon Zorich. (agm) (Entered: 06/09/2017)
204 JOINDER in MOTION to Intervene by Movant Anthony J. Rotolo. (agm) (Entered: 06/09/2017)
205 JOINDER in MOTION to Intervene by Movant Anthony J. Rotolo. (agm) (Entered: 06/09/2017)

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06/08/2017 06/08/2017 06/08/2017 06/08/2017 06/08/2017 06/08/2017 06/08/2017 06/08/2017 06/08/2017 06/08/2017 06/08/2017 06/09/2017 06/09/2017 06/09/2017 06/12/2017 06/15/2017
06/16/2017
06/16/2017 06/19/2017 06/19/2017 06/19/2017 06/19/2017

206 JOINDER in MOTION to Intervene by Movant Carolyn Sue Indiciani. (agm) (Entered: 06/09/2017)
207 JOINDER in MOTION to Intervene by Movant Frank Garritano. (agm) (Entered: 06/09/2017)
208 JOINDER in MOTION to Intervene by Movant Daniel J. Whitacre. (agm) (Entered: 06/09/2017)
209 JOINDER in MOTION to Intervene by Movant Daniel J. Whitacre. (agm) (Entered: 06/09/2017)
210 JOINDER in MOTION to Intervene by Movant Josephine L. Zamarelli. (agm) (Entered: 06/09/2017)
211 JOINDER in MOTION to Intervene by Movant Josephine L. Zamarelli. (agm) (Entered: 06/09/2017)
212 JOINDER in MOTION to Intervene by Movant Donald Wire. (agm) (Entered: 06/09/2017)
213 JOINDER in MOTION to Intervene by Movant Greg Wasylik. (agm) (Entered: 06/09/2017)
214 JOINDER in MOTION to Intervene by Movant Linda S. Kiplinger. (agm) (Entered: 06/09/2017)
215 JOINDER in MOTION to Intervene by Movant Thomas E. DeMatteo. (agm) (Entered: 06/09/2017)
216 JOINDER in MOTION to Intervene by Movant Lisa M. Swisshelm. (agm) (Entered: 06/09/2017)
217 JOINDER in MOTION to Intervene by Movant Jeffrey Harris. (agm) (Entered: 06/09/2017)
218 JOINDER in MOTION to Intervene by Movant Jessica Alexander. (agm) (Entered: 06/09/2017)
219 JOINDER in MOTION to Intervene by Movant Amy Humphrey. (agm) (Entered: 06/09/2017)
220 Joinder in MOTION to Intervene by Movant Lisa Paul. (er) (Entered: 06/13/2017)
221 REPLY to Response to Motion re 107 MOTION to Intervene, 145 MOTION for Hearing filed by Movant Caroline A. Lahrmann. (Attachments: # 1 Exhibit Ex. 1 to Reply in Support of Mot Req Hrg on Mot to Intervene) (Choslovsky, William) (Entered: 06/15/2017)
222 RESPONSE in Opposition re 164 MOTION Permission for VOR, Inc. to File Brief as Amicus Curiae in support of Proposed Intervenors' Motion to Intervene filed by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, The Ability Center of Greater Toledo, Richard Walters. (Attachments: # 1 Exhibit A − Letter of Carolyn Lahrmann) (Sjoberg−Witt, Kerstin) (Entered: 06/16/2017)
223 JOINDER in MOTION to Intervene by Movant Kerry O. Billington. (agm) (Entered: 06/16/2017)
224 JOINDER in MOTION to Intervene by Movant Amanda Bolyard. (agm) (Entered: 06/19/2017)
225 JOINDER in MOTION to Intervene by Movant Mark Burkholder. (agm) (Entered: 06/19/2017)
226 JOINDER in MOTION to Intervene by Movant Melissa Gross. (agm) (Entered: 06/19/2017)
227 JOINDER in MOTION to Intervene by Movant Andrew Panasek. (agm) (Entered: 06/19/2017)

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06/19/2017 06/21/2017 06/21/2017 06/21/2017 06/21/2017 06/22/2017
06/23/2017 06/23/2017 06/23/2017 06/23/2017 06/23/2017 06/26/2017 06/26/2017 06/26/2017 06/28/2017
06/28/2017 06/28/2017 06/28/2017 06/29/2017
06/29/2017 06/30/2017 06/30/2017 06/30/2017 06/30/2017

228 JOINDER in MOTION to Intervene by Movant Emily Spisak. (agm) (Entered: 06/19/2017)
229 JOINDER in MOTION to Intervene by Movant Elizabeth M. John. (agm) (Entered: 06/21/2017)
230 JOINDER in MOTION to Intervene by Movant David R. Miller. (agm) (Entered: 06/21/2017)
231 Joinder in Motion to Intervene by Movant Joanie Fischbach. (er) (Entered: 06/21/2017)
232 Joinder in Motion to Intervene by Movant Rebecca M. Stevens. (er) (Entered: 06/21/2017)
233 MOTION correct record re 221 Reply to Response to Motion by Movant Ohio Association of County Boards Serving People with Developmental Disabilities. (Attachments: # 1 Exhibit 6/12/17 emails between Attorneys Hickman & Choslovsky) (Hickman, Franklin) (Entered: 06/22/2017)
234 Joinder in MOTION to Intervene by Movant Rebecca Toman. (kdp) (Entered: 06/26/2017)
235 Joinder in MOTION to Intervene by Movant Robert Toman. (kdp) (Entered: 06/26/2017)
236 Joinder in MOTION to Intervene by Movant Lori L. Wise. (kdp) (Entered: 06/26/2017)
237 Joinder in MOTION to Intervene by Movant Nada Hanes. (kdp) (Entered: 06/26/2017)
238 Joinder in MOTION to Intervene by Movant Peggy Wichert. (kdp) (Entered: 06/26/2017)
239 MOTION for Joinder by Movants Kathleen D. Kunovich, Robert S. Kunovich. (jlk) (jlk). (Entered: 06/27/2017)
240 MOTION for Joinder by Movant Devon T Pursley. (jlk) (Entered: 06/27/2017)
241 Joinder in MOTION to Intervene by Movant Julia Martin. (kdp) (Entered: 06/27/2017)
242 RESPONSE to Motion re 233 MOTION correct record re 221 Reply to Response to Motion to Correct the Record filed by Movant Caroline A. Lahrmann. (Attachments: # 1 Exhibit Ex. 1 to Intervenor's Response) (Choslovsky, William) (Entered: 06/28/2017)
243 Joinder in Motion to Intervene by Movant Wanda Hagan. (er) (Entered: 06/28/2017)
244 Joinder in Motion to Intervene by Movant Mary Wagler. (er) (Entered: 06/28/2017)
245 Joinder in Motion to Intervene by Movant Shirley Berrisford. (er) (Entered: 06/28/2017)
246 REPLY to Response to Motion re 164 MOTION Permission for VOR, Inc. to File Brief as Amicus Curiae in support of Proposed Intervenors' Motion to Intervene Brief of VOR Inc. in Response to Plaintiffs' Opposition filed by Amicus VOR, Inc.. (Reynolds, Diane) (Entered: 06/29/2017)
257 Joinder in Motion to Intervene by Movant Theresa Cattell. (er) (Entered: 07/07/2017)
247 Joinder in MOTION to Intervene by Movant Inice McGaha. (kdp) (Entered: 06/30/2017)
248 Joinder in MOTION to Intervene by Movant Roxanne Schnabel. (kdp) (Entered: 06/30/2017)
249 Joinder in MOTION to Intervene by Movant Marilyn Hansen. (kdp) (Entered: 06/30/2017)
251 Joinder in Motion to Intervene by Movant Theresa McCraw. (er) (Entered: 07/05/2017)

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06/30/2017 07/03/2017 07/05/2017 07/05/2017 07/05/2017 07/07/2017 07/10/2017 07/10/2017 07/19/2017 07/25/2017
07/25/2017 07/25/2017 07/27/2017 07/28/2017
07/31/2017 08/04/2017

252 Joinder in Motion to Intervene by Movant Daniel M. O'Brien. (er) (Entered: 07/05/2017)
250 NOTICE of Hearing: Settlement Conference set for 8/22/2017 at 09:00 AM in Chambers before Chief Judge Edmund A. Sargus. (mas) (Entered: 07/03/2017)
253 Joinder in MOTION to Intervene by Movant Michael Joseph Wichert. (Attachments: # 1 Attachment 1, # 2 Attachment 2) (kdp) (Entered: 07/05/2017)
254 Joinder in MOTION to Intervene by Movant Kim Aebie. (kdp) (Entered: 07/05/2017)
255 Joinder in MOTION to Intervene by Movant Todd J. Aebie. (kdp) (Entered: 07/05/2017)
256 Joinder in MOTION to Intervene by Movant W. Matt Lehner. (kdp) (Entered: 07/07/2017)
258 Joinder in MOTION to Intervene by Movant Linda Hotze Williams. (kdp) (Entered: 07/10/2017)
259 Joinder in MOTION to Intervene by Movant Selina Ann Jackson. (kdp) (Entered: 07/10/2017)
260 Joinder in MOTION to Intervene by Movants Carlos Lopez and Cynthia Lopez. (kdp) (Entered: 07/19/2017)
261 OPINION AND ORDER granting 68 the Ohio Association of County Board's Motion to Intervene ; granting 107 the Guardians' Motion to Intervene; denying as moot 145 the Guardians' Motion for Oral Argument; granting 164 VOR's Motion to File an Amicus Brief; and granting the Additional Guardians' Motion to Join the Guardians' Motion to Intervene: 123 , 125 , 126 , 127 , 128 , 129 , 138 , 139 , 141 , 142 , 143 , 144 , 146 , 147 , 148 , 152 , 153 , 155 160 , 161 , 166 , 167 168 , 169 , 170 , 171 , 172 , 173 , 174 , 175 , 176 , 177 , 182 , 183 , 184 , 185 , 186 , 192 , 193 , 194 , 195 , 196 , 197 , 198 , 199 , 200 , 201 , 202 , 203 , 204 , 205 , 206 , 207 , 208 , 209 , 210 , 211 , 212 , 213 , 214 , 215 , 216 , 217 , 218 , 219 , 220 , 223 , 224 , 225 , 226 , 227 , 228 , 229 , 230 , 231 , 232 , 234 , 235 , 236 , 237 , 238 , 239 , 240 , 241 , 243 , 244 , 245 , 247 , 248 , 249 , 251 , 252 , 253 , 254 , 255 , 256 , 257 , 258 , 259 , 260 . The Clerk is directed to file the Ohio Association of County Board's Answer that is currently filed as Exhibit A to its Motion to Intervene [68−1] and is directed to file VOR's brief [164−1] and title the docket entry "VOR's Amicus Brief in Support of the Guardian's Motion to Intervene.". Signed by Chief Judge Edmund A. Sargus on 07/24/2017. (dh1)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.) Modified brackets to doc links on 7/27/2017 (kdp). (Entered: 07/25/2017)
262 Answer of Intervenor−Defendant Ohio Association of County Boards Serving People with Developmental Disabilities (dh1) (Entered: 07/25/2017)
263 VOR's Amicus Brief in Support of the Guardian's Motion to Intervene. (dh1) (Entered: 07/25/2017)
264 NOTICE by Movant Henry Lahrmann CERTIFICATE OF SERVICE showing service of Opinion and Order on pro se Movants (Cohen, Robert) (Entered: 07/27/2017)
265 ORDER: By request of the parties, the Court AMENDS the briefing schedule 189 on Plaintiff's Motion for Class Certification 42 as follows: Defendants and Intervenors shall file any responses to Motion on or before 8/18/17, and Plaintiffs may file a reply brief on or before 09/18/17. The parties shall meet for a continued settlement conference on 08/22/17 at 9:00 a.m.. Signed by Chief Judge Edmund A. Sargus on 07/28/2017. (dh1)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.) (Entered: 07/28/2017)
266 Letter filed by Movant Michael Joseph Wichert. (kdp) (Entered: 08/01/2017)
269 NOTICE by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, The Ability Center of Greater Toledo, Richard Walters of Withdrawal of Co−Counsel (Sjoberg−Witt, Kerstin) (Entered: 08/04/2017)

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08/16/2017 08/17/2017 08/17/2017 08/18/2017
08/22/2017 08/25/2017 08/28/2017 08/29/2017 08/29/2017

270 MOTION to File Document Under Seal (Joint Motion) by Defendants John Kasich, John Martin, John McCarthy, Kevin Miller, Norman S. Ray, Barbara Sears. (James, Larry) Modified event type and text on 8/17/2017 (er). (Entered: 08/16/2017)
271 OPINION AND ORDER granting 270 Defendants' and Plaintiffs' Joint Motion for Leave, Instanter, to File Brief with Redactions and Deposition Transcripts Under Seal. Defendants may file the redacted portions of the exhibits and deposition transcripts with their Memorandum in Opposition to Plaintiffs' Motion for Class Certification. The Clerk is directed to permit Defendants to file the un−redacted exhibits and deposition transcripts under seal. Signed by Chief Judge Edmund A. Sargus on 08/17/2017. (dh1) (Entered: 08/17/2017)
272 ORDER: By agreement of the parties, the Court amends the briefing schedule 189 on Plaintiffs Motion for Class Certification 42 as follows: Intervenors shall file any responses to the Motion on or before 08/29/17, and Plaintiffs may file a reply brief on or before 10/20/17. Signed by Chief Judge Edmund A. Sargus on 08/17/2017. (dh1) (Entered: 08/17/2017)
273 RESPONSE in Opposition re 42 MOTION to Certify Class with Memorandum in Support filed by Defendants John Kasich, John Martin, John McCarthy, Kevin Miller, Norman S. Ray, Barbara Sears. (Attachments: # 1 Exhibit State of States University of Colorado Report, # 2 Exhibit Demonstrative Exhibit A, # 3 Exhibit Horvath Affidavit & Attachments, # 4 Exhibit Weidner Affidavit & Attachments, # 5 Exhibit Whisman Affidavit, # 6 Exhibit Collins Affidavit & Attachments, # 7 Exhibit Lawson Affidavit & Attachments, # 8 Exhibit Tamborsky Affidavit, # 9 Exhibit McGonigle Affidavit & Attachments, # 10 Exhibit National Conference−Deinstitutionalization of Persons with Developmental Disabilities, # 11 Exhibit Testimony of Michael Kirkman, Execution Direction of Disability Rights Ohio, # 12 Exhibit DODD Outlines FY 18−19, # 13 Exhibit Technology Offers Mental Health Access, # 14 Exhibit Burba Deposition, # 15 Exhibit Mason Deposition, # 16 Exhibit Walters Deposition, # 17 Exhibit Butler Deposition, # 18 Exhibit Hamilton Deposition, # 19 Exhibit Bohache Affidavit, # 20 Exhibit Bassett Affidavit, # 21 Exhibit Bohman Affidavit, # 22 Exhibit Steele Affidavit, # 23 Exhibit Harding Affidavit, # 24 Exhibit Rodgers Affidavit, # 25 Exhibit Lee Affidavit, # 26 Exhibit Slight Affidavit, # 27 Exhibit Gall Affidavit, # 28 Exhibit Chambers v City of San Francisco, # 29 Exhibit Hutchinson v Patrick) (James, Larry) (Additional attachment(s) added on 8/21/2017: # 30 Exhibit 15: Exhibit Mason Deposition− Redacted) (kdp). The parties are directed not to use the prior Exhibit 15. It has been removed by the Clerk and replaced by the new redacted version. (kdp) (Entered: 08/18/2017)
Minute Entry for proceedings held before Chief Judge Edmund A. Sargus: Settlement Conference held on 8/22/2017. (Court Reporter: Darla Coulter) (mas) (Entered: 08/25/2017)
275 RESPONSE in Opposition re 42 MOTION to Certify Class with Memorandum in Support filed by Movant Ohio Association of County Boards Serving People with Developmental Disabilities. (Hickman, Franklin) (Entered: 08/25/2017)
276 MOTION to Include Supplemental Evidence and a Revised, Proposed Class Definition in Reply in Further Support of Plaintiffs Motion for Class Certification re 42 MOTION to Certify Class with Memorandum in Support by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, The Ability Center of Greater Toledo, Richard Walters. (Sjoberg−Witt, Kerstin) (Entered: 08/28/2017)
277 NOTICE of Appearance by Roger Philip Sugarman for Movants Glenn Baxter, Tim Collett, Elizabeth Colombo, Kelly Jones, Shawna Klein, Caroline A. Lahrmann, Elizabeth Lahrmann, Henry Lahrmann, Barbara Meola, Mary Anne Meola, Garry Wojciak (Sugarman, Roger) (Entered: 08/29/2017)
278 RESPONSE in Opposition re 42 MOTION to Certify Class with Memorandum in Support filed by Movants Glenn Baxter, Tim Collett, Elizabeth Colombo, Kelly Jones, Shawna Klein, Caroline A. Lahrmann, Elizabeth Lahrmann, Henry Lahrmann, Barbara Meola, Mary Anne Meola, Garry Wojciak. (Attachments: # 1 Exhibit 1 − Caroline Lahrman Declaration, # 2 Exhibit 2 − Waiting List Letters, # 3 Exhibit 3 − State Data, # 4 Exhibit 4 − Kathy Wojciak Declaration, # 5 Exhibit 5 − Settlement Points) (Sugarman, Roger) (Entered: 08/29/2017)

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09/05/2017 09/11/2017 09/15/2017 09/20/2017 10/20/2017

279 RESPONSE in Opposition re 276 MOTION to Include Supplemental Evidence and a Revised, Proposed Class Definition in Reply in Further Support of Plaintiffs Motion for Class Certification re 42 MOTION to Certify Class with Memorandum in Support filed by Defendants John Kasich, John Martin, John McCarthy, Kevin Miller, Norman S. Ray, Barbara Sears. (James, Larry) (Entered: 09/05/2017)
280 RESPONSE in Opposition re 276 MOTION to Include Supplemental Evidence and a Revised, Proposed Class Definition in Reply in Further Support of Plaintiffs Motion for Class Certification re 42 MOTION to Certify Class with Memorandum in Support filed by Movants Glenn Baxter, Tim Collett, Elizabeth Colombo, Kelly Jones, Shawna Klein, Caroline A. Lahrmann, Elizabeth Lahrmann, Henry Lahrmann, Barbara Meola, Mary Anne Meola, Garry Wojciak. (Sugarman, Roger) (Entered: 09/11/2017)
281 REPLY to Response to Motion re 276 MOTION to Include Supplemental Evidence and a Revised, Proposed Class Definition in Reply in Further Support of Plaintiffs Motion for Class Certification re 42 MOTION to Certify Class with Memorandum in Support filed by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, The Ability Center of Greater Toledo, Richard Walters. (Attachments: # 1 Exhibit A − Correspondence April 12, 2017) (Sjoberg−Witt, Kerstin) (Entered: 09/15/2017)
282 OPINION AND ORDER granting 276 Plaintiffs' Motion to Include Supplemental Evidence and a Revised, Proposed Class Definition in Reply in Further Support of Plaintiffs' Motion for Class Certification. Signed by Chief Judge Edmund A. Sargus on 09/19/2017. (dh1) (Entered: 09/20/2017)
283 REPLY to Response to Motion re 276 MOTION to Include Supplemental Evidence and a Revised, Proposed Class Definition in Reply in Further Support of Plaintiffs Motion for Class Certification re 42 MOTION to Certify Class with Memorandum in Support filed by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, The Ability Center of Greater Toledo, Richard Walters. (Attachments: # 1 Exhibit 1 − Email from Clayton Weidner, Ohio Dept of Developmental Disabilities, to Joshua Anderson, # 2 Exhibit 2 − Ohio Dept of Developmental Disabilities Spreadsheet Facility Data, # 3 Exhibit 3 − Ohio Dept of Developmental Disabilities Spreadsheet Pivot Tables, # 4 Exhibit 4 − Ohio Community Transition Study, The Ohio Colleges of Medicine Government Resource Center, # 5 Exhibit 5 − Ohio Dept of Developmental Disabilities, Modernizing the ICF Program Policy Document, # 6 Exhibit 6 − Sheryl Larson et al., Residential Information Systems Project, In−Home and Residential Long−Term Supports and Services for Persons with Intellectual or Developmental Disabilities: Status and Trends Through 2014, # 7 Exhibit 7 − John Butterworth et al., Inst. for Cmty. Inclusion, Univ. of Mass. Bos., StateData: The National Report on Employment Services and Outcomes, # 8 Exhibit 8 − Ohio Dept of Developmental Disabilities, Why the slow take up of waivers, # 9 Exhibit 9 − Patrick Stephan, Ohio Dept of Developmental Disabilities, Ohio Health and Human Services Cabinet, Project Management Template, ICFMR Transition Workgroup, # 10 Exhibit 10 − Ohio Dept of Developmental Disabilities, How many people living in ICFs have a mild ID level recorded?, # 11 Exhibit 11 − Ohio Dept of Developmental Disabilities, State of Ohios Comparison of individuals that reside in ICF−IID facilities by RAC score and facility size, # 12 Exhibit 12 − Ohio Dept of Developmental Disabilities, 2017 Fourth Quarter Scorecard,, # 13 Exhibit 13 − Declaration of Chuck Junior, # 14 Exhibit 14 − Declaration of Pat Callahan, # 15 Exhibit 15 − Ohio Dept of Developmental Disabilities, The Future of Ohios Developmental Centers Draft, A Four Year Plan (2015 2018), # 16 Exhibit 16 − Office of Health Transformation, Provide Choices in Ohios Developmental Disabilities System, # 17 Exhibit 17 − Ohio Dept of Developmental Disabilities, Intermediate Care Facilities (ICF), # 18 Exhibit 18 − Declaration of Phyllis Burba, # 19 Exhibit 19 − Declaration of Cathy Mason Jordan, # 20 Exhibit 20 − Declaration of Kim Kelly, # 21 Exhibit 21 − Ohio Dept of Developmental Disabilities, Emergency Status and Still on the Waiting List, # 22 Exhibit 22 − John L. Martin, Director, Ohio Dept of Developmental Disabilities, Presentation at the Arc of Ohio Quarterly Meeting: DODD FY 16/17 Budget, # 23 Exhibit 23 − Declaration of Cheryl Stauffer, # 24 Exhibit 24 − Declaration of Aaron Isom, # 25 Exhibit 25 − Letter from Mary Hall and Kim Kelly, Coalition for Community Living to Michael Kirkman, Disability Rights Ohio, # 26 Exhibit 26 − American Network of Community Options and Resources, Addressing the Disability Services Workforce Crisis of the 21st Century, # 27 Exhibit 27 − Email from Lori Horvath, Ohio Dept of Developmental Disabilities, to Nisi Pozderac, Transitional Living Centers, Inc., # 28 Exhibit 28 − Advocacy & Protective Services, Inc. (APSI),

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11/03/2017 11/03/2017 11/03/2017 11/03/2017 11/09/2017 11/21/2017
11/21/2017 11/22/2017 12/21/2017
12/21/2017 12/22/2017

APSI Update on Exit Waiver Process, # 29 Exhibit 29 − Declaration of TaRell Derry, # 30 Exhibit 30 − Declaration of TaRell Derry, # 31 Exhibit 31 − Declaration of Sally Berger, # 32 Exhibit 32 − Ohio Dept of Developmental Disabilities, DODD−OOD Data Match, # 33 Exhibit 33 − Memorandum from Ohio Dept of Developmental Disabilities on Context of DODD budget (SFY 2016−17 State Budget Initiatives), # 34 Exhibit 34 − Ohio Dept of Developmental Disabilities, The adequacy of Home and Community− Based Waivers Services (authorized under section 1915 of the Social Security Act (42 U.S.C. 1396 N (C), # 35 Exhibit 35 − Ohio Governors Office of Health Transformation, Enhance Community Developmental Disabilities Services, # 36 Exhibit 36 − Email from Joshua Anderson, Ohio Dept of Developmental Disabilities, to Melissa Stills, Ohio Dept of Medicaid, # 37 Exhibit 37 − CareStar, Options Counseling Monthly Activity Report September, 2016, # 38 Exhibit 38 − CareStar, Community Options Visit Form, # 39 Exhibit 39 − Ohio Dept of Developmental Disabilities, Pre−Admission Counseling, # 40 Exhibit 40 − Email from Lori Stanfa, Senior Policy Analyst, Ohio Assn of County Boards, to Superintendents, Ohio Assn of County Boards) (Sjoberg−Witt, Kerstin) (Entered: 10/20/2017)
284 NOTICE: Telephone Conference set for 11/3/2017 at 01:30 PM in Courtroom 2 − Columbus before Chief Judge Edmund A. Sargus. Call−in instructions in notice. (mas) (Entered: 11/03/2017)
TELEPHONE CONFERENCE 284 is VACATED. (Previously set for 11/3/2017 at 1:30 p.m.) (mas) (Entered: 11/03/2017)
285 ORDER amending the briefing schedule 189 on Plaintiff's Motion for Class Certification 42 . Signed by Chief Judge Edmund A. Sargus on 11/03/2017. (dh1) (Entered: 11/03/2017)
286 NOTICE by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, The Ability Center of Greater Toledo, Richard Walters re 283 Reply to Response to Motion,,,,,,,,,,,,,,,,,, Redacted Exhibit 21 Emergency Status and Still on the Waiting List (Sjoberg−Witt, Kerstin) (Entered: 11/03/2017)
287 Unopposed MOTION for Leave to File Brief as Amici Curiae by Amicus Parties The Arc of Ohio, The Arc of the United States, The Judge David L. Bazelon Center for Mental Health Law. (Attachments: # 1 Attachment, # 2 Text of Proposed Order) (Dane, Stephen) (Entered: 11/09/2017)
288 ORDER granting 287 the Unopposed Motion for Leave to File Brief as Amici Curiae. The Arc of the United States, The Arc of Ohio, and the Judge David L. Bazelon Center for Mental Health Law may file their amicus brief in support of Plaintiffs' Motion for Class Certification. Signed by Chief Judge Edmund A. Sargus on 11/21/2017. (dh1) (Entered: 11/21/2017)
289 BRIEF by Amicus Parties The Arc of Ohio, The Arc of the United States, The Judge David L. Bazelon Center for Mental Health Law. (Dane, Stephen) (Entered: 11/21/2017)
290 NOTICE of Substitution of Counsel − Julie E Brigner substituting for Allan Showalter as to Defendants Kevin Miller, Barbara Sears. (Brigner, Julie) (Entered: 11/22/2017)
291 Supplemental Memorandum Opposing re 42 MOTION to Certify Class with Memorandum in Support filed by Defendants John Kasich, John Martin, John McCarthy, Kevin Miller, Norman S. Ray, Barbara Sears. (Attachments: # 1 Affidavit Horvanth Supplemental Affidavit, # 2 Affidavit Weidner Supplemental Affidavit, # 3 Browning Testimony, # 4 Bixler Letter, # 5 Understanding Deinstitutuionalization Study, # 6 Affidavit Lawson Supplemental Affidavit) (James, Larry) (Entered: 12/21/2017)
292 NOTICE by Defendant John Martin re 291 Supplemental − Opposing, Replacement for Document 291−2 (first page of affidavit was missing) (James, Larry) (Entered: 12/21/2017)
293 OACBDD Response to Plaintiff's Reply and Supplemental Evidence In Support of 42 MOTION to Certify Class with Memorandum in Support filed by Movant Ohio Association of County Boards Serving People with Developmental Disabilities. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (Hickman,

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12/22/2017 12/22/2017 12/22/2017 01/12/2018 01/12/2018
01/23/2018 01/23/2018 01/26/2018 02/26/2018 03/30/2018 03/30/2018 04/05/2018
04/13/2018

Franklin) Modified text on 12/27/2017 (ew). (Entered: 12/22/2017)
294 BRIEF of VOR, Inc. in Support of Motion for Permission to File Brief as amicus curiae and in Opposition to re 42 MOTION to Certify Class with Memorandum in Support filed by Amicus VOR, Inc.. (Reynolds, Diane) Modified text on 12/27/2017 (ew). (Entered: 12/22/2017)
295 MOTION to Intervene by Intervenor Defendant Ohio Provider Resource Association. (Attachments: # 1 Exhibit A. Answer, # 2 Exhibit B. Davis Declaration, # 3 Exhibit C. Beastrom Declaration) (Mundy, Kara) (Entered: 12/22/2017)
296 Supplemental BRIEF in Opposition to 42 MOTION to Certify Class with Memorandum in Support filed by Movant Caroline A. Lahrmann. (Attachments: # 1 Exhibit A − 11/29/04 Letter) (Sugarman, Roger) Modified text on 12/27/2017 (ew). (Entered: 12/22/2017)
297 RESPONSE to Motion re 295 MOTION to Intervene filed by Movant Caroline A. Lahrmann. (Sugarman, Roger) (Entered: 01/12/2018)
298 RESPONSE in Opposition re 295 MOTION to Intervene filed by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, The Ability Center of Greater Toledo, Richard Walters. (Attachments: # 1 Exhibit Exhibit A Email from Mark Davis, OPRA to John Martin, DODD (Jan. 13, 2017), # 2 Exhibit Exhibit B Letter from Bridget Gargen, OACBDD and Mark Davis, OPRA to John Martin, DODD (Jan 18. 2017), # 3 Exhibit Exhibit C Testimony of Mark Davis, Pres., OPRA, before the Ohio Senate Medicaid Committee, # 4 Exhibit Exhibit D Joint Letter to Chairmen Smith and Oelslager (Apr. 3, 2015), # 5 Exhibit Exhibit E Email from Mark Davis, OPRA to Lori Horvath, DODD (Feb. 20, 2015), # 6 Exhibit Exhibit F Press Release, OPRA, OPRA Expresses Concern About Timing, Scope and Assertions in DD Lawsuit (Apr. 5, 2016), # 7 Exhibit Exhibit G OPRA Updates, OPRA 2016 Spring Conference (Apr. 5, 2016), # 8 Exhibit Exhibit H Testimony of Mark Davis, Pres., OPRA, before the Ohio House Finance Subcommittee on Human Services, # 9 Exhibit Exhibit I Joint Letter to President Faber (May 28, 2015)) (Sjoberg−Witt, Kerstin) (Entered: 01/12/2018)
299 NOTICE of Substitution of Counsel − Zachery Paul Keller substituting for Ryan L. Richardson as to Defendant John Kasich. (Keller, Zachery) (Entered: 01/23/2018)
300 REPLY to Response to Motion re 42 MOTION to Certify Class with Memorandum in Support filed by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, The Ability Center of Greater Toledo, Richard Walters. (Sjoberg−Witt, Kerstin) (Entered: 01/23/2018)
301 REPLY to Response to Motion re 295 MOTION to Intervene filed by Intervenor Defendant Ohio Provider Resource Association. (Mundy, Kara) (Entered: 01/26/2018)
302 NOTICE by Movants Glenn Baxter, Tim Collett, Elizabeth Colombo, Kelly Jones, Shawna Klein, Caroline A. Lahrmann, Elizabeth Lahrmann, Henry Lahrmann, Barbara Meola, Mary Anne Meola, Garry Wojciak NOTICE OF CHANGE OF ADDRESS OF PRO HAC VICE COUNSEL (Sugarman, Roger) (Entered: 02/26/2018)
303 ORDER granting in part and denying in part 42 Motion to Certify Class. Signed by Chief Judge Edmund A. Sargus on 3/30/2018. (mas) (Entered: 03/30/2018)
304 ORDER granting 233 Motion to Correct the Record. The Court GRANTS the motion to the extent that it asks the Court to consider the Intervenor−Defendants' position with regard to the statements at issue. Signed by Chief Judge Edmund A. Sargus on 3/30/2018. (mas) (Entered: 03/30/2018)
305 STATUS REPORT ORDER: The parties are DIRECTED to confer and to file a joint STATUS REPORT outlining each parties' position on the following issues: (1) the scope and the estimated time required to complete any remaining discovery; and (2) the dates by which the parties will be prepared to file dispositive motions. Status Report due by 4/13/2018. Signed by Magistrate Judge Elizabeth Preston Deavers on April 5, 2018. (jlk) (Entered: 04/05/2018)
306 STATUS REPORT Joint by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, The Ability Center of Greater Toledo, Richard Walters. (Attachments: #

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04/17/2018 04/27/2018 05/02/2018 05/02/2018 05/02/2018 05/18/2018 05/22/2018
05/25/2018 05/25/2018 05/29/2018
05/29/2018 05/29/2018 06/08/2018

1 Exhibit Plaintiffs' Proposed Trial Schedule, # 2 Exhibit Defendants' Proposed Trial Schedule, # 3 Exhibit Guardian−Intervenors' Proposed Trial Schedule) (Sjoberg−Witt, Kerstin) (Entered: 04/13/2018)
307 NOTICE of Hearing: Status Conference set for 5/2/2018 at 09:30 AM in Chambers before Chief Judge Edmund A. Sargus. (cmw) (Entered: 04/17/2018)
308 MOTION to Clarify or in the Alternative, Motion for Reconsideration of Court's Class Certification Opinion and Order by Movant Caroline A. Lahrmann. (Sugarman, Roger) (Entered: 04/27/2018)
Minute Entry for proceedings held before Chief Judge Edmund A. Sargus: In−Person Status Conference held on 5/2/2018. (Court Reporter: Darla Coulter) (mas) (Entered: 05/02/2018)
309 ORDER Memorializing 5/2/2018 Status Conference and denying as moot 308 Motion to Clairfy. Trial is scheduled for 1/14/2020 at 9:00 a.m. A settlement conference is scheduled for 6/11/2018 at 9:00 a.m. Signed by Chief Judge Edmund A. Sargus on 5/2/2018. (mas) (Entered: 05/02/2018)
Set/Reset Hearings: Jury Trial set for 1/14/2020 at 09:00 AM in Courtroom 2 − Columbus before Chief Judge Edmund A. Sargus. Settlement Conference set for 6/11/2018 at 09:00 AM in Chambers before Chief Judge Edmund A. Sargus. (mas) (Entered: 05/02/2018)
310 MOTION Expedited Motion of Amicus Curie Ohio Provider Resource Associaiton to Participate in Settlement Negotiations by Intervenor Defendant Ohio Provider Resource Association. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B) (Lusenhop, Peter) (Entered: 05/18/2018)
311 RESPONSE in Opposition re 310 MOTION Expedited Motion of Amicus Curie Ohio Provider Resource Associaiton to Participate in Settlement Negotiations Plaintiffs, Defendants, and Guardian−Intervenors' Joint filed by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, The Ability Center of Greater Toledo, Richard Walters. (Sjoberg−Witt, Kerstin) (Entered: 05/22/2018)
312 NOTICE OF Withdraw as Attorney by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, The Ability Center of Greater Toledo, Richard Walters. (Kayes, Thomas) Modified TEXT on 5/29/2018 (jlk). (Entered: 05/25/2018)
313 REPLY to Response to Motion re 310 MOTION Expedited Motion of Amicus Curie Ohio Provider Resource Associaiton to Participate in Settlement Negotiations filed by Intervenor Defendant Ohio Provider Resource Association. (Mundy, Kara) (Entered: 05/25/2018)
314 ORDER and DEFICIENCY NOTICE − Counsel is DIRECTED to re−file the Notice in compliance with Local Rule 83.4.1 re 312 Notice to Withdraw as Attorney filed by The Ability Center of Greater Toledo, Richard Walters, Phyllis Ball, Ross Hamilton, Caryl Mason, Antonio Butler. Status Report due by 6/5/2018. Signed by Magistrate Judge Elizabeth Preston Deavers on May 29, 2018. (jlk) (Entered: 05/29/2018)
315 ORDER denying 310 Expedited Motion of Amicus Curie Ohio Provider Resource Association ("OPRA") to Participate in Settlement participate in settlement. The Court DENIES OPRA's request to participate in the settlement negotiations. Signed by Chief Judge Edmund A. Sargus on 5/29/2018. (cmw) (Entered: 05/29/2018)
316 NOTICE by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, The Ability Center of Greater Toledo, Richard Walters re 314 Order, of Withdrawal of Co−Counsel (Sjoberg−Witt, Kerstin) (Entered: 05/29/2018)
317 Transcript of In−Person Status Conference Proceedings held on 5−2−18, before Chief Judge Edmund A. Sargus, Jr. Court Reporter/Transcriber Darla J. Coulter, Telephone number 614−719−3245. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's

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intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.

06/12/2018 06/12/2018 07/09/2018 07/13/2018 07/24/2018 07/24/2018
07/31/2018 07/31/2018 08/03/2018
08/06/2018 08/15/2018
08/28/2018 08/29/2018

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 6/29/2018. Redacted Transcript Deadline set for 7/9/2018. Release of Transcript Restriction set for 9/6/2018. (Coulter, Darla) (Entered: 06/08/2018)
Minute Entry for proceedings held before Chief Judge Edmund A. Sargus: Settlement Conference held on 6/11/2018. (Court Reporter: Darla Coulter) (cmw) (Entered: 06/12/2018)
Minute Entry for proceedings held before Chief Judge Edmund A. Sargus: Settlement Conference held on 6/12/2018. (Court Reporter: Darla Coulter) (cmw) (Entered: 06/12/2018)
318 NOTICE of Hearing: Status Conference set for 7/13/2018 11:30 AM in Teleconference before Magistrate Judge Elizabeth Preston Deavers. (sln) (Entered: 07/09/2018)
Minute Entry for proceedings held before Magistrate Judge Elizabeth Preston Deavers: Status Conference held on 7/13/2018. (sln) (Entered: 07/16/2018)
319 NOTICE of Hearing: Status Conference set for 7/27/2018 03:00 PM in Teleconference before Chief Judge Edmund A. Sargus, Jr. and Chief Magistrate Judge Elizabeth A. Preston Deavers. (sln) (Entered: 07/24/2018)
NOTICE OF CHANGE IN STATUS CONFERENCE DATE/TIME: Status Conference reset to 7/31/2018 02:30 PM in Teleconference before Chief Judge Edmund A. Sargus, Jr. and Chief Magistrate Judge Elizabeth A. Preston Deavers. (Previously set for 7/27/2018 − please see doc 319 for calling instructions.) (sln) (Entered: 07/24/2018)
320 NOTICE of Appearance by Justin T. Radic for Defendants Kevin Miller, Barbara Sears (Radic, Justin) (Entered: 07/31/2018)
Minute Entry for proceedings held before Chief Judge Edmund A. Sargus, Jr. and Chief Magistrate Judge Elizabeth A. Preston Deavers: Status Conference held on 7/31/2018. (Court Reporter: Darla Coulter) (sln) (Entered: 08/01/2018)
321 ORDER Memorializing 7/31/2018 Status Conference. Any amendment to pleadings or motions to join additional parties due by 9/14/2018. Completion of written discovery due by 1/1/2019. Fact discovery deadline 1/1/2019. Simultaneous Expert Reports due by 4/1/2019. Simultaneous Rebuttal Expert Reports due by 5/1/2019. Motions for Summary Judgment due by 7/1/2019, Opposition to MSJ due by 8/14/2019, Reply to MSJ due by 8/28/2019. Jury Trial set for 10/21/2019 09:00 AM in Courtroom 2 − Columbus before Chief Judge Edmund A. Sargus, Jr.. Signed by Chief Judge Edmund A. Sargus, Jr. and Chief Magistrate Judge Elizabeth Preston Deavers on 8/3/2018. (sln) (Entered: 08/03/2018)
Set/Reset Deadlines: Joinder of Parties due by 9/14/2018. (daf) (Entered: 08/06/2018)
322 ORDER SETTING TRIAL DATE AND SETTLEMENT CONFERENCE: Final Pretrial Conference set for 10/15/2019 at 09:00 AM in Chambers before Chief Judge Edmund A. Sargus. Jury Trial set for 10/21/2019 at 09:00 AM in Courtroom 2 − Columbus before Chief Judge Edmund A. Sargus. Signed by Chief Judge Edmund A. Sargus on 8/14/2018. (cmw) (Additional attachment(s) added on 8/15/2018: # 1 Attachment) (cmw). (Entered: 08/15/2018)
Minute Entry for proceedings held before Magistrate Judge Elizabeth Preston Deavers: Status Conference held on 8/28/2018. (Court Reporter: Allison Kimmel) (sln) (Entered: 08/29/2018)
324 ORDER − This matter came before the Court for a status conference on August 28, 2018. Counsel for all parties appeared and participated in the conference. Fact Discovery due by 3/1/2019. Status Conference set for 9/25/2018 04:00 PM before Magistrate Judge Elizabeth Preston Deavers. Signed by Magistrate Judge Elizabeth

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09/14/2018 09/14/2018
09/14/2018 09/15/2018 09/17/2018 09/20/2018 09/25/2018 09/25/2018 09/26/2018 09/28/2018 10/01/2018 10/02/2018 10/03/2018 10/03/2018
10/03/2018

Preston Deavers on August 29, 2018. (jlk) (Entered: 08/29/2018)
325 MOTION To Join Additional Parties of Intervenor Guardians by Movants Glenn Baxter, Tim Collett, Elizabeth Colombo, Kelly Jones, Shawna Klein, Caroline A. Lahrmann, Elizabeth Lahrmann, Henry Lahrmann, Barbara Meola, Mary Anne Meola, Garry Wojciak. (Sugarman, Roger) (Entered: 09/14/2018)
326 (WITHDRAWN −SEE ECF No 369 ) CROSSCLAIM − CROSSCLAIMS AND THIRD−PARTY COMPLAINT OF INTERVENOR−GUARDIANS − Third Party Complaint against Ohio Disability Rights Law and Policy Center, Inc. dba Disability Rights Ohio against John Kasich, John Martin, Ohio Association of County Boards Serving People with Developmental Disabilities, Barbara Sears, filed by Glenn Baxter, Tim Collett, Elizabeth Colombo, Kelly Jones, Shawna Klein, Caroline A. Lahrmann, Elizabeth Lahrmann, Henry Lahrmann, Barbara Meola, Mary Anne Meola, Garry Wojciak. (Sugarman, Roger) (Entered: 09/14/2018)
327 REQUEST for Issuance of Summons. Upon Third−Party Defendant Ohio Disability Rights Law and Policy Center, Inc. dba Disability Rights Ohio (Sugarman, Roger) (Entered: 09/14/2018)
328 REQUEST for Issuance of Summons. Upon Third−Party Defendant Disability Rights Ohio − Corrected (Sugarman, Roger) (Entered: 09/15/2018)
329 REQUEST for Issuance of Summons. to Disability Rights Ohio (Sugarman, Roger) (Entered: 09/17/2018)
330 Summons Issued as to Ohio Disability Rights Law and Policy Center Inc.. (daf) (Entered: 09/20/2018)
331 Joint MOTION for Extension of Time to File Answer re 326 Crossclaim,, New date requested 10/26/2018. by Cross Defendant John Martin, Defendant John Martin. (Attachments: # 1 Text of Proposed Order) (Tice, Frank) (Entered: 09/25/2018)
332 ORDER − Memorializing Clarification of Class Definition. Signed by Chief Judge Edmund A. Sargus on 9/25/2018. (plb) (Entered: 09/25/2018)
333 ORDER granting 331 Motion for Extension of Time to Answer to 326 Crossclaim. Answers due by 10/26/2018. Signed by Magistrate Judge Elizabeth Preston Deavers on September 26, 2018. (jlk) (Entered: 09/26/2018)
334 NOTICE of Hearing: Status Conference set for 10/2/2018 03:30 PM in Teleconference before Magistrate Judge Elizabeth Preston Deavers. (sln) (Entered: 09/28/2018)
335 Mail Returned as Undeliverable. Mail sent to Kelly Jones, Joanie Fischbach, and Emily Spisak, Content inside included a copy of ECF No. 333 . (daf) (Entered: 10/02/2018)
Minute Entry for proceedings held before Magistrate Judge Elizabeth Preston Deavers: Status Conference held on 10/2/2018. (Court Reporter: Shawna Evans) (sln) (Entered: 10/03/2018)
336 Unopposed MOTION for Extension of Time to File Answer re 326 Crossclaim,, New date requested 11/9/2018. by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, The Ability Center of Greater Toledo, Richard Walters. (Attachments: # 1 Text of Proposed Order) (Sjoberg−Witt, Kerstin) (Entered: 10/03/2018)
337 ORDER − Pursuant to the status conference, by telephone, on 10/2/2018, the Court Orders the following: Plaintiffs are ORDERED to file a motion to compel, no later than 10/9/2018. Defendants' response to this motion is due 10/16/2018. No reply is permitted except upon further Order of the Court. The DODD is ORDERED to serve its discovery responses on Plaintiffs no later than 10/18/2018, with the expectation that it shall make every effort to provide the responses sooner, if possible. Rule 26(a)(1) Disclosures due by 11/2/2018. Signed by Magistrate Judge Elizabeth Preston Deavers on October 3, 2018. (jlk) (Entered: 10/03/2018)
338 NUNC PRO TUNC ORDER − re 337 Order. Plaintiffs reported that they are still awaiting discovery responses from the Ohio Department of Medicaid (ODM). As discussed at the conference, ODM is ORDERED to serve its discovery responses on Plaintiffs no later than OCTOBER 18, 2018, with the expectation that it shall make

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10/04/2018 10/04/2018 10/05/2018 10/08/2018 10/08/2018
10/09/2018
10/09/2018
10/11/2018 10/15/2018 10/15/2018 10/16/2018 10/16/2018
10/17/2018
10/18/2018 10/22/2018
10/25/2018

every effort to provide the responses sooner, if possible. Signed by Magistrate Judge Elizabeth Preston Deavers on October 3, 2018. (jlk) (Entered: 10/03/2018)
339 ORDER granting 336 Motion for Extension of Time to Answer. Plaintiffs' Answer due 11/9/2018. Signed by Magistrate Judge Elizabeth Preston Deavers on October 3, 2018. (jlk) (Entered: 10/04/2018)
340 Mail Returned as Undeliverable. Mail sent to Luanne West. Content inside included a copy of ECF No. 333 (daf) (Entered: 10/05/2018)
341 Mail Returned as Undeliverable. Mail sent to Steven Tomassini. Content inside included a copy of ECF No. 333 . (daf) (Entered: 10/05/2018)
342 NOTICE of Appearance by Caroline Gentry for ThirdParty Defendant Ohio Disability Rights Law and Policy Center Inc. (Gentry, Caroline) (Entered: 10/08/2018)
343 STIPULATION of Extension of Time for Third−Party Defendant to Move or Otherwise Plead in Response to Third−Party Complaint by ThirdParty Defendant Ohio Disability Rights Law and Policy Center Inc.. (Gentry, Caroline) (Entered: 10/08/2018)
344 MOTION for Reconsideration re 332 Order Memorializing Clarification of Class Definition by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, The Ability Center of Greater Toledo, Richard Walters. (Sjoberg, Kerstin) (Entered: 10/09/2018)
345 MOTION to Compel Discovery from Defendant DODD and Memorandum in Support by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, The Ability Center of Greater Toledo, Richard Walters. (Attachments: # 1 Exhibit A − Second Request for Production of Documents to DODD, # 2 Exhibit B − Second Set of Interrogatories to DODD) (Sjoberg, Kerstin) (Entered: 10/09/2018)
Set/Reset Deadlines: Ohio Disability Rights Law and Policy Center Inc. answer due 11/1/2018. (daf) (Entered: 10/11/2018)
346 NOTICE of Appearance by Christopher Robert Green for Defendant John Martin (Green, Christopher) (Entered: 10/15/2018)
347 Mail Returned as Undeliverable. Mail sent to Emily Spisak. Content in each envelope was a copy of ECF No. 338 . (daf) (Entered: 10/15/2018)
348 ***WITHDRAWN per doc 369 *** MOTION to Strike 326 Crossclaim,, Third−Party Complaint by ThirdParty Defendant Ohio Disability Rights Law and Policy Center Inc.. (Gentry, Caroline) (Entered: 10/16/2018)
349 RESPONSE in Opposition re 345 MOTION to Compel Discovery from Defendant DODD and Memorandum in Support filed by Defendant John Martin. (Attachments: # 1 Affidavit Ex. A − Affidavit of Kim Mowry, # 2 Affidavit Ex. B − Affidavit of Jeffrey Roush) (Tice, Frank) (Entered: 10/16/2018)
350 ORDER DENYING Disability Rights Ohio's Request for Urgent Consideration of a Motion made in its Motion to Strike or, in the Alternative, to Sever the Third−Party Complaint. Signed by Chief Judge Edmund A. Sargus on 10/17/2018. (plb) (Entered: 10/17/2018)
351 Mail Returned as Undeliverable. Mail sent to James Blue, Content inside included a copy of ECF No. 333 . (daf) (Entered: 10/19/2018)
352 NOTICE of Voluntary Dismissal by Movants Glenn Baxter, Tim Collett, Elizabeth Colombo, Kelly Jones, Shawna Klein, Caroline A. Lahrmann, Elizabeth Lahrmann, Henry Lahrmann, Barbara Meola, Garry Wojciak (Sugarman, Roger) (Entered: 10/22/2018)
353 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Cross Defendant Ohio Association of County Boards Serving People with Developmental Disabilities, Movant Ohio Association of County Boards Serving People with Developmental Disabilities. (Attachments: # 1 Exhibit A) (Hickman, Franklin) (Entered: 10/25/2018)

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10/26/2018 10/26/2018 10/29/2018 10/30/2018 10/30/2018
10/30/2018 10/31/2018 11/05/2018 11/08/2018
11/08/2018 11/08/2018
11/08/2018 11/09/2018
11/13/2018

354 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Defendants John Martin, Kevin Miller, Barbara Sears. (Tice, Frank) (Entered: 10/26/2018)
355 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Intervenor−Guardians Cross−Claims and Third Party Complaint (Doc. 326) by Defendant John Kasich. (Keller, Zachery) (Entered: 10/26/2018)
356 Supplemental Memorandum Supporting /Correcting Doc 349 by Defendant John Martin. (Attachments: # 1 Affidavit Whisman Supplemental Affidavit) (Tice, Frank) (Entered: 10/29/2018)
357 RESPONSE in Opposition re 344 MOTION for Reconsideration re 332 Order Memorializing Clarification of Class Definition filed by Defendants John Kasich, John Martin, John McCarthy, Kevin Miller, Barbara Sears. (Attachments: # 1 Affidavit Horvath Second Supplemental Affidavit) (Tice, Frank) (Entered: 10/30/2018)
358 RESPONSE in Opposition re 344 MOTION for Reconsideration re 332 Order Memorializing Clarification of Class Definition filed by Movants Glenn Baxter, Tim Collett, Elizabeth Colombo, Kelly Jones, Shawna Klein, Caroline A. Lahrmann, Elizabeth Lahrmann, Henry Lahrmann, Barbara Meola, Mary Anne Meola, Garry Wojciak. (Sugarman, Roger) (Entered: 10/30/2018)
Minute Entry for proceedings held before Magistrate Judge Elizabeth Preston Deavers: Status Conference held on 10/30/2018. (Court Reporter: Allison Kimmel) (sln) (Entered: 10/31/2018)
359 ORDER − Status Conference set for 11/16/2018 03:00 PM in Teleconference before Magistrate Judge Elizabeth Preston Deavers. Signed by Magistrate Judge Elizabeth Preston Deavers on October 31, 2018. (jlk) (Entered: 10/31/2018)
360 Mail Returned as Undeliverable. Mail sent to Joanie Fischbach. Content inside included a copy of ECF No. [359}. (daf) (Entered: 11/05/2018)
361 Unopposed MOTION for Extension of Time New date requested 12/7/2018. Extension of Time to File Responses to Motions to Dismiss by Movants Glenn Baxter, Tim Collett, Elizabeth Colombo, Kelly Jones, Shawna Klein, Caroline A. Lahrmann, Elizabeth Lahrmann, Henry Lahrmann, Barbara Meola, Mary Anne Meola, Garry Wojciak. (Attachments: # 1 Proposed Order) (Sugarman, Roger) (Entered: 11/08/2018)
362 ORDER Granting 361 Intervenor−Guardians' Unopposed Motion for Extension of Time to Respond to Motions to Dismiss. Responses to 353 , 354 & 355 due by 12/7/2018. Signed by Magistrate Judge Elizabeth Preston Deavers on 11/8/2018. (sln) (Entered: 11/08/2018)
Reset Deadlines as to 355 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Intervenor−Guardians Cross−Claims and Third Party Complaint (Doc. 326), 354 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 353 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM . Responses due by 12/7/2018 (sln) (Entered: 11/08/2018)
364 Mail Returned as Undeliverable. Mail sent to Luanne West. Content inside included a copy of ECF No. 359 . (daf) (Entered: 11/09/2018)
363 RESPONSE to Motion re 353 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 355 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Intervenor−Guardians Cross−Claims and Third Party Complaint (Doc. 326), 354 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM in Support filed by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, The Ability Center of Greater Toledo, Richard Walters. (Attachments: # 1 Exhibit 1 − Statement of Interest of the United States of America, Illinois League of Advocates for Developmentally, Disabled v. Illinois Dep't of Human Servs.) (Sjoberg, Kerstin) (Entered: 11/09/2018)
365 Mail Returned as Undeliverable. Mail sent to Henry Lahrmann, Emily Spisak, Steven Tomassini, and Kelly Jones. Content inside each envelope included a copy of Doc. 359 . (daf) (Entered: 11/13/2018)

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11/13/2018 11/16/2018 11/16/2018 11/16/2018 11/20/2018 11/29/2018 12/07/2018 12/07/2018
12/07/2018 12/10/2018 12/12/2018 12/13/2018 12/13/2018

366 REPLY to Response to Motion re 344 MOTION for Reconsideration re 332 Order Memorializing Clarification of Class Definition in Support filed by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, The Ability Center of Greater Toledo, Richard Walters. (Attachments: # 1 Exhibit 1 − State Defendants July 20, 2018 proposed trial schedule) (Sjoberg, Kerstin) (Entered: 11/13/2018)
Minute Entry for proceedings held before Magistrate Judge Elizabeth Preston Deavers: Status Conference held on 11/16/2018. (Court Reporter: Allison Kimmel) (sln) (Entered: 11/16/2018)
367 ORDER: The Status Conference set for 11/27/2018 is VACATED. Status Conference set for 12/10/2018 03:00 PM in Teleconference. Joint Agenda and Proposed Modified Case Schedule due via email by 12/6/2018. Signed by Magistrate Judge Elizabeth Preston Deavers on 11/16/2018. (ew) (Entered: 11/16/2018)
368 Supplemental Memorandum Supporting re 349 Response in Opposition to Motion, by Defendant John Martin. (Attachments: # 1 Exhibit Exhibit A: Objections to Interrogatories, # 2 Exhibit Exhibit B: Objections to RFPs) (Tice, Frank) (Entered: 11/16/2018)
369 NOTICE OF WITHDRAWAL OF DOCUMENT by ThirdParty Defendant Ohio Disability Rights Law and Policy Center Inc. re 348 MOTION to Strike 326 Crossclaim,, Third−Party Complaint /Third−Party Defendant Disability Rights Ohio's Notice of Withdrawal of Pending Motion (ECF No. 348) (Gentry, Caroline) (Entered: 11/20/2018)
370 OPINION AND ORDER Granting in part and Denying in part 345 Motion to Compel. Signed by Chief Judge Edmund A. Sargus, Jr. and Chief Magistrate Judge Elizabeth Preston Deavers on 11/29/2018. (sln) (Entered: 11/29/2018)
371 ORDER denying 344 Motion for Reconsideration. Signed by Chief Judge Edmund A. Sargus on 12/7/2018. (plb) (Entered: 12/07/2018)
372 RESPONSE in Opposition re 353 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 355 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Intervenor−Guardians Cross−Claims and Third Party Complaint (Doc. 326), 354 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Movants Glenn Baxter, Tim Collett, Elizabeth Colombo, Kelly Jones, Shawna Klein, Caroline A. Lahrmann, Elizabeth Lahrmann, Henry Lahrmann, Barbara Meola, Mary Anne Meola, Garry Wojciak. (Sugarman, Roger) (Entered: 12/07/2018)
373 MOTION for Leave to File Amicus Brief in Opposition to Motion to Dismiss by Amicus VOR, Inc.. (Attachments: # 1 Memorandum of Law in Support of Amicus Participation and in Opposition to Motion to Dismiss, # 2 Affidavit of Hugo Dwyer in Support of Motion to File Amicus Brief, # 3 Certificate of Service) (Reynolds, Diane) (Entered: 12/07/2018)
Minute Entry for proceedings held before Magistrate Judge Elizabeth Preston Deavers: Status Conference held on 12/10/2018. Court Reporter Darla Coulter. (sln) (Entered: 12/11/2018)
374 ORDER memorializing the revised schedule discussed during the 12/10/2018 status conference: Standing Status Conference set for 1/29/2019 04:00 PM in Teleconference before Chief Magistrate Judge Elizabeth Preston Deavers. Signed by Chief Judge Edmund A. Sargus, Jr. and Chief Magistrate Judge Elizabeth Preston Deavers on 12/12/2018. (sln) (Entered: 12/12/2018)
375 Joint MOTION for Extension of Time New date requested 1/11/2019. by Defendant John Martin. (Attachments: # 1 Text of Proposed Order) (Green, Christopher) (Entered: 12/13/2018)
376 ORDER SETTING TRIAL DATE AND SETTLEMENT CONFERENCE: Final Pretrial Conference set for 2/18/2020 at 09:00 AM in Chambers before Chief Judge Edmund A. Sargus. Settlement Conference set for 12/17/2019 at 09:30 AM in Chambers before Chief Judge Edmund A. Sargus. Jury Trial set for 2/24/2020 at 09:00 AM in Courtroom 2 − Columbus before Chief Judge Edmund A. Sargus.. Signed by Chief Judge Edmund A. Sargus on 12/13/2018. (Attachments: # 1 FPTO Form) (cmw) (Entered: 12/13/2018)

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12/14/2018
12/14/2018 12/17/2018
12/17/2018 12/18/2018
12/18/2018 12/28/2018 01/11/2019 01/11/2019 01/11/2019 01/11/2019 01/22/2019 02/21/2019 02/25/2019 03/05/2019 03/18/2019 03/19/2019 03/20/2019 03/28/2019

377 ORDER Granting 375 Joint Motion of State Dfts for Extension of Time to File Reply Memorandum to Intervenor−Guardians' Memorandum in Opposition to Dfts' Motion to Dismiss. Signed by Magistrate Judge Elizabeth Preston Deavers on 12/14/2018. (sln) (Entered: 12/14/2018)
Reset Deadline as to 354 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. State Dfts' Reply due by 1/11/2019. (sln) (Entered: 12/14/2018)
378 MOTION for Extension of Time to File Response/Reply as to 372 Response in Opposition to Motion,, New date requested 1/11/2019. by Cross Defendant Ohio Association of County Boards Serving People with Developmental Disabilities. (Attachments: # 1 Text of Proposed Order) (Hickman, Franklin) (Entered: 12/17/2018)
379 ORDER granting 325 Motion to Join Additional Parties. Signed by Chief Judge Edmund A. Sargus on 12/17/2018. (plb) (Entered: 12/17/2018)
380 ORDER Granting 378 OACBDD's Motion for Extension of Time until 1/11/2019 to File Reply Memorandum to Intervenor−Guardians' Memorandum in Opposition to OACBDD's Motion to Dismiss. Signed by Magistrate Judge Elizabeth Preston Deavers on 12/18/2018. (sln) (Entered: 12/18/2018)
Reset Deadline: OACBDD's Reply Memorandum to Intervenor−Guardians' Memorandum in Opposition to OACBDD's Motion to Dismiss due by 1/11/2019. (sln) (Entered: 12/18/2018)
381 NOTICE by Defendant John Martin Of Withdrawal of Attorney Frank D Tice As Counsel of Record for Defendant Martin (James, Larry) (Entered: 12/28/2018)
382 ANSWER to 326 Crossclaim,, filed by Ohio Association of County Boards Serving People with Developmental Disabilities. (Hickman, Franklin) (Entered: 01/11/2019)
383 REPLY to Response to Motion re 354 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Defendant John Martin. (Green, Christopher) (Entered: 01/11/2019)
384 REPLY to Response to Motion re 355 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Intervenor−Guardians Cross−Claims and Third Party Complaint (Doc. 326) filed by Defendant John Kasich. (Keller, Zachery) (Entered: 01/11/2019)
385 NOTICE by Defendants Kevin Miller, Barbara Sears of Withdrawal of Co−Counsel (Radic, Justin) (Entered: 01/11/2019)
386 NOTATION ORDER: Status Conference scheduled for 1/29/2019 at 4:00 PM is VACATED. By Chief Magistrate Judge Elizabeth Preston Deavers on 1/22/2019. (sln) (Entered: 01/22/2019)
387 Notice: The 2/26/2019 at 4:00 PM Status Conference is VACATED. (sln) (Entered: 02/21/2019)
388 NOTICE of Hearing: Telephone Status Conference set for 3/5/2019 at 01:30 PM via Teleconference before Chief Judge Edmund A. Sargus. (cmw) (Entered: 02/25/2019)
Minute Entry for proceedings held before Chief Judge Edmund A. Sargus: Telephone Status Conference held on 3/5/2019. (Court Reporter: Darla Coulter) (cmw) (Entered: 03/05/2019)
389 NOTICE of Hearing:Telephone Status Conference set for 3/19/2019 at 09:00 AM via Teleconference before Chief Judge Edmund A. Sargus. (cmw) (Entered: 03/18/2019)
390 Minute Entry for proceedings held before Chief Judge Edmund A. Sargus: Telephone Status Conference held on 3/19/2019. (Court Reporter: Darla Coulter) (cmw) (Entered: 03/19/2019)
391 NOTICE of Hearing: Telephone Status Conference set for 4/1/2019 at 09:00 AM via Teleconference before Chief Judge Edmund A. Sargus. (cmw) (Entered: 03/20/2019)
392 NOTICE of Hearing: Telephone Status Conference RESET for 4/5/2019 at 09:30 AM via Teleconference before Chief Judge Edmund A. Sargus. (cmw) (Entered: 03/28/2019)

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04/04/2019 04/19/2019 04/22/2019 05/10/2019
05/21/2019
05/21/2019 06/05/2019 06/05/2019 06/10/2019 07/08/2019 07/24/2019 08/20/2019 08/20/2019 09/26/2019 10/11/2019
10/18/2019

393 NOTICE of Hearing: Status Conference RESET for 4/19/2019 at 03:30 PM via Teleconference before Chief Judge Edmund A. Sargus. (cmw) (Entered: 04/04/2019)
394 Minute Entry for proceedings held before Chief Judge Edmund A. Sargus: Telephone Status Conference held on 4/19/2019. (Court Reporter: Allison Kimmel) (cmw) (Entered: 04/19/2019)
395 NOTICE of Hearing: Mediation/Settlement Conference set for 5/13/2019 at 10:00 AM in Courtroom 2 − Columbus before Chief Judge Edmund A. Sargus. Please note this hearing is only for Guardians and Defendants. (cmw) (Entered: 04/22/2019)
396 Joint MOTION for Settlement for Preliminary Approval of Proposed Class Action Settlement and Notice by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, The Ability Center of Greater Toledo, Richard Walters. (Attachments: # 1 Exhibit A Proposed Settlement Agreement, # 2 Exhibit B Notice of Proposed Class Action Settlement, # 3 Text of Proposed Order Exhibit C Proposed Class Notice Order) (Sjoberg, Kerstin) (Entered: 05/10/2019)
397 ORDER − This matter came before the Court for a settlement conference between defendants and Guardian Intervenors. These two parties will continue negotiations and report back to the Court their progress within the new few weeks. The Court hereby STAYS any deadlines to which any of the parties are subject. Signed by Chief Judge Edmund A. Sargus on 5/20/2019. (cmw) (Entered: 05/21/2019)
398 Minute Entry for proceedings held before Chief Judge Edmund A. Sargus: Mediation/Settlement Conference held on 5/13/2019. (Court Reporter: Darla Coulter) (cmw) (Entered: 05/21/2019)
399 MOTION to Withdraw as Attorney Sarah E. Pierce by Defendant John Kasich. (Keller, Zachery) (Entered: 06/05/2019)
400 ORDER granting 399 Motion to Withdraw as Attorney. Attorney Sarah Elaine Pierce terminated. Signed by Magistrate Judge Elizabeth Preston Deavers on June 5, 2019. (jlk) (Entered: 06/05/2019)
401 NOTICE of Hearing: In−person Status Conference set for 7/11/2019 at 10:00 AM in Courtroom 2 − Columbus before Chief Judge Edmund A. Sargus. (cmw) (Entered: 06/10/2019)
402 ORDER − The Court hereby VACATES the In−person Status Conference scheduled for July 11, 2019. The Court will reschedule the conference to be held after July 17, 2019. Signed by Chief Judge Edmund A. Sargus on 7/8/2019. (cmw) (Entered: 07/08/2019)
403 NOTICE of Hearing: In−person Status Conference set for 8/19/2019 at 01:30 PM in Courtroom 2 − Columbus before Chief Judge Edmund A. Sargus. (cmw) (Entered: 07/24/2019)
404 NOTICE of Hearing: In−Person Settlement Conference set for 9/5/2019 at 01:30 PM in Courtroom 2 − Columbus before Chief Judge Edmund A. Sargus. (cmw) (Entered: 08/20/2019)
405 Minute Entry for proceedings held before Chief Judge Edmund A. Sargus: In−person Status Conference held on 8/19/2019. (Court Reporter: Darla Coulter) (cmw) (Entered: 08/20/2019)
406 NOTICE of Hearing: In−Person Status Conference set for 10/3/2019 at 10:00 AM in Chambers before Judge Edmund A. Sargus. (cmw) (Entered: 09/26/2019)
407 Joint MOTION for Settlement for Preliminary Approval of Proposed Class Action Settlement and Notice by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, The Ability Center of Greater Toledo, Richard Walters. (Attachments: # 1 Exhibit A − Proposed Settlement Agreement, # 2 Exhibit B − Notice of Proposed Class Action Settlement, # 3 Exhibit C − Proposed Class Notice Order) (Sjoberg, Kerstin) (Entered: 10/11/2019)
408 Joint MOTION for Settlement for Preliminary Approval of Proposed Class Action Settlement and Notice by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, The Ability Center of Greater Toledo, Richard Walters. (Attachments: # 1

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10/18/2019 11/04/2019 11/05/2019 11/13/2019 11/15/2019
11/18/2019 11/19/2019 11/19/2019 11/19/2019 11/19/2019 11/26/2019 11/27/2019 12/02/2019
12/02/2019
12/04/2019

Exhibit A − Proposed Settlement Agreement, # 2 Exhibit B − Notice of Proposed Class Action Settlement, # 3 Exhibit C − Proposed Class Notice Order) (Sjoberg, Kerstin) (Entered: 10/18/2019)
409 ORDER granting 408 Motion for Preliminary Approval of Settlement. Signed by Judge Edmund A. Sargus on 10/18/2019. (plb) (Entered: 10/18/2019)
410 Letter to Court in Support of Class Settlement (cmw) (Entered: 11/04/2019)
411 Letter from Kimberly Kelly (Attachments: # 1 Envelope) (daf) (Entered: 11/05/2019)
412 Letter from The Ability Center Melanie Hogan, Co−Chair, OACIL and Pam Davis Co−Chair, OACIL (Attachments: # 1 Envelope) (cmw) (Entered: 11/13/2019)
413 MOTION for Attorney Fees and Memorandum in Support of Attorneys Fees and Costs Pursuant to Settlement Agreement by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, The Ability Center of Greater Toledo, Richard Walters. (Attachments: # 1 Exhibit A − Declaration of Kerstin Sjoberg, # 2 Exhibit B − Declaration of Cathy Costanzo, # 3 Exhibit C − Declaration of Neil Ellis, # 4 Exhibit D − Declaration of Samuel Bagenstos, # 5 Exhibit E Declaration of Shawn Organ) (Sjoberg, Kerstin) (Entered: 11/15/2019)
414 NOTICE of Hearing: In−Person Status Conference set for 11/19/2019 at 09:00 AM in Chambers before Judge Edmund A. Sargus. (cmw) (Entered: 11/18/2019)
415 Letter from Cincinnati Children's Ilka Riddle, PhD Associate Professor and Kara B. Ayers PhD Assistant Professor (Attachments: # 1 Envelope) (cmw) (Entered: 11/19/2019)
416 Minute Entry for proceedings held before Judge Edmund A. Sargus: In−Person Status Conference held on 11/19/2019. (Court Reporter: Darla Coulter) (cmw) (Entered: 11/19/2019)
417 ORDER − The Court SCHEDULES a hearing for Wednesday, December 4, 2019 at 10:00 a.m. at which the Guardians may provide any relevant evidence and testimony as to their view that they did not breach the agreement. Signed by Judge Edmund A. Sargus on 11/19/2019. (cmw) (Entered: 11/19/2019)
418 NOTICE of Hearing: In−Court Hearing set for 12/4/2019 at 10:00 AM in Courtroom 2 − Columbus before Judge Edmund A. Sargus. (cmw) (Entered: 11/19/2019)
428 NOTICE of Appearance by Linda M. Italiano Gorczynski for Cross Defendant Ohio Association of County Boards Serving People with Developmental Disabilities, Movant Ohio Association of County Boards Serving People with Developmental Disabilities (Gorczynski, Linda) (Entered: 11/26/2019)
435 NOTICE of Hearing: Telephone Status Conference set for 11/27/2019 at 01:30 PM via Teleconference before Judge Edmund A. Sargus. (cmw) (Entered: 11/27/2019)
436 MOTION Permission to File as Amicus Curiae in Opposition to Settlement re 408 Joint MOTION for Settlement for Preliminary Approval of Proposed Class Action Settlement and Notice, 407 Joint MOTION for Settlement for Preliminary Approval of Proposed Class Action Settlement and Notice by Amicus VOR, Inc.. (Attachments: # 1 Brief of VOR Inc., in support of Motion for Permission to File Brief as Amicus Curiae and in opposition to the Proposed Settlement, # 2 Certification of Hugo Dwyer) (Reynolds, Diane) (Entered: 12/02/2019)
437 RESPONSE in Opposition re 408 Joint MOTION for Settlement for Preliminary Approval of Proposed Class Action Settlement and Notice filed by Movants Glenn Baxter, Tim Collett, Elizabeth Colombo, Kelly Jones, Shawna Klein, Caroline A. Lahrmann, Elizabeth Lahrmann, Henry Lahrmann, Barbara Meola, Mary Anne Meola, Garry Wojciak. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Brody, John) (Entered: 12/02/2019)
447 Remark − In docketing the numerous objections and letters in support of the class action settlement between plaintiffs and defendants, four letters of support were inadvertently titled as objections: Tammi Hanson: pages 12−15 of Doc 440; Veronica Fox: page 17 of Doc 438; Selena Mobley: page 7 of Doc 442, and; Vickie Primes: page 49 of Doc 438. (plb) (Entered: 12/04/2019)

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12/04/2019 12/09/2019 12/09/2019 12/09/2019
12/12/2019 12/13/2019
12/18/2019 12/18/2019 12/27/2019 12/30/2019 01/03/2020

449 Minute Entry for proceedings held before Judge Edmund A. Sargus: In−Court Hearing held on 12/4/2019. (Court Reporter: Darla Coulter) (cmw) (Entered: 12/04/2019)
452 NOTICE of Hearing: Class Action Fairness Hearing set for 12/17/2019 at 09:30 AM in Courtroom 2 − Columbus before Judge Edmund A. Sargus. (cmw) (Entered: 12/09/2019)
453 ORDER Regarding Class Action Fairness Hearing. Signed by Judge Edmund A. Sargus on 12/9/2019. (cmw) (Entered: 12/09/2019)
454 Joint MOTION Joint Motion For Final Approval of Proposed Class Action Settlement ( Responses due by 12/13/2019), Joint MOTION for Settlement by Defendant John Martin. (Attachments: # 1 Exhibit Settlement Agreement, # 2 Exhibit Declaration of Clay Weidner, # 3 Exhibit Declaration of Ashley McKinney, # 4 Exhibit Declaration of Kevin Truitt, # 5 Exhibit DAA Email, # 6 Exhibit Declaration of Antonio Butler, # 7 Exhibit Declaration of Linda Walters, # 8 Exhibit Declaration of Cathy Mason Jordan, # 9 Exhibit Letter From Judith L. Hug, # 10 Exhibit Declaration of Tim Harrington, # 11 Exhibit Residential Options Counseling Pamphlet) (James, Larry) (Entered: 12/09/2019)
457 SCHEDULING ORDER regarding the Class Action Fairness Hearing scheduled for 12/17/2019 at 9:30 a.m. Signed by Judge Edmund A. Sargus on 12/12/2019. (cmw) (Entered: 12/12/2019)
458 RESPONSE to Motion re 454 Joint MOTION Joint Motion For Final Approval of Proposed Class Action Settlement Joint MOTION for Settlement − Response of Intervenor−Guardians, filed by Movants Glenn Baxter, Tim Collett, Elizabeth Colombo, Kelly Jones, Shawna Klein, Caroline A. Lahrmann, Elizabeth Lahrmann, Henry Lahrmann, Barbara Meola, Mary Anne Meola, Garry Wojciak. (Sugarman, Roger) (Entered: 12/13/2019)
459 Minute Entry for proceedings held before Judge Edmund A. Sargus: Fairness Hearing held on 12/17/2019. (Court Reporter: Darla Coulter) (cmw) (Entered: 12/18/2019)
461 ORDER granting 436 Motion for Permission to File as Amicus Curiae. Signed by Judge Edmund A. Sargus on 12/18/2019. (cmw) (Entered: 12/18/2019)
462 Joint MOTION for Extension of Time New date requested 1/10/2020. by Defendant John Martin. (James, Larry) (Entered: 12/27/2019)
463 ORDER granting 462 Motion for Extension of Time. The parties have until January 10, 2020 to complete the negotiation process and submit a report to the Court advising of the same. Signed by Judge Edmund A. Sargus on 12/30/2019. (cmw) (Entered: 12/30/2019)
465 Transcript of Class Action Fairness Hearing Proceedings held on 12−17−19, before Judge Edmund A. Sargus, Jr.. Court Reporter/Transcriber Darla J. Coulter, Telephone number 614−719−3245. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.

01/10/2020 01/10/2020

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office.. Redaction Request due 1/24/2020. Redacted Transcript Deadline set for 2/3/2020. Release of Transcript Restriction set for 4/2/2020. (Coulter, Darla) (Entered: 01/03/2020)
466 BRIEF by Defendant John Martin. (Attachments: # 1 Exhibit Settlement Agreement) (James, Larry) (Entered: 01/10/2020)
467 BRIEF re 463 Order on Motion for Extension of Time by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, The Ability Center of Greater Toledo, Richard Walters. (Sjoberg, Kerstin) (Entered: 01/10/2020)

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01/13/2020
01/24/2020 01/30/2020 03/10/2020 03/10/2020 03/10/2020

468 Reply − ICF FAMILY GUARDIANS' REPORT ON CLASS SETTLEMENT NEGOTIATIONS by Movants Glenn Baxter, Tim Collett, Elizabeth Colombo, Kelly Jones, Shawna Klein, Caroline A. Lahrmann, Elizabeth Lahrmann, Henry Lahrmann, Barbara Meola, Mary Anne Meola, Garry Wojciak. (Attachments: # 1 Exhibit 1 − Hearing Transcript 12−17−19, # 2 Exhibit 2 − Revisions to settlement) (Sugarman, Roger) (Entered: 01/13/2020)
469 NOTICE by Plaintiffs Phyllis Ball, Antonio Butler, Ross Hamilton, Caryl Mason, The Ability Center of Greater Toledo, Richard Walters of Supplemental Authority (Attachments: # 1 Exhibit 1 − Memorandum Decision and Order, # 2 Exhibit 2 − Settlement Agreement) (Sjoberg, Kerstin) (Entered: 01/24/2020)
470 Response re 469 Notice (Other), by Movants Glenn Baxter, Tim Collett, Elizabeth Colombo, Kelly Jones, Shawna Klein, Caroline A. Lahrmann, Elizabeth Lahrmann, Henry Lahrmann, Barbara Meola, Mary Anne Meola, Garry Wojciak. (Sugarman, Roger) (Entered: 01/30/2020)
471 MOTION to Withdraw as Attorney John R. Harrison by Movant Ohio Association of County Boards Serving People with Developmental Disabilities. (Hickman, Franklin) (Entered: 03/10/2020)
472 ORDER granting 471 Motion to Withdraw as Attorney. Attorney John Richard Harrison terminated. Signed by Magistrate Judge Elizabeth Preston Deavers on March 10, 2020. (jlk) (Entered: 03/10/2020)
ORDER finding as moot 396 Motion for Settlement; finding as moot 407 Motion for Settlement. Both of these motions were rendered moot by the filing of the Motion for Settlement at 408 which was granted at 409 .Signed by Judge Edmund A. Sargus on 3/10/2020. (plb) (Entered: 03/10/2020)

 
 We have the legal right of way.
COMMUNITY INTEGRATION: Fact Sheet on DRO’s Class Action Lawsuit, Ball v. Kasich
Background
Approximately 5,800 people with intellectual and developmental disabilities live in large institutional settings called Intermediate Care Facilities (ICFs). Many people would like to move out of the institution and live in a more communitybased setting.
Throughout Ohio, there are waiting lists of over 40,000 people who have asked for home and community-based services. While many people who are waiting for services do live in a community-based setting, 22,000 are at serious risk of being forced to move into an institution because
1. they do not have access to the types of home and community-based services that they need. For example, 8,000 people live with an aging caregiver, who may not be able to continue to support their needs in the future.
2. what they need is only provided in an institution and not in a communitybased setting. For example, the services that a person needs are not provided on existing waivers, or caps or other cost factors limit the services available. When this happens, people are forced to live in an institution because it is the only place that will meet their needs.
Waiting lists for home and community-based services are long and slow-moving. Right now, the average wait time is 13 years for a person to be able to move out of an ICF.
Also, many people with intellectual and developmental disabilities want to receive job-related services in a community setting where they can work alongside people who do not have disabilities and earn more money to support themselves. However, 93% of Ohio’s funds for employment services are spent on programs where people with disabilities are kept apart from people who do not have disabilities and where they often make much less than minimum wage. In 2013, Ohio had about 17,000 individuals with intellectual and developmental disabilities receive services in sheltered workshops — more than any other state in the nation.

Disability Rights Ohio 50 W. Broad St., Suite 1400 Columbus, Ohio 43215-5923

614-466-7264 or 800-282-9181 FAX 614-644-1888 TTY 614-728-2553 or 800-858-3542
disabilityrightsohio.org

Ohio Disability Rights Law and Policy Center, Inc.

Nearly 17 years ago, the United States Supreme Court decided the landmark case of Olmstead v. L.C., ruling that keeping people with disabilities in institutions away from society when it is not needed is a form of discrimination and against the law.
Ohio is violating federal law by not giving people with disabilities real choices to live their lives connected with the community.

Who Will Be Covered by the Lawsuit
In Ball v. Kasich, Disability Rights Ohio and its partners will be trying to represent people with intellectual and developmental disabilities in institutions called Intermediate Care Facilities (ICFs) with eight beds or more, and people who are at serious risk of admission. The lawsuit seeks to increase opportunities for these individuals for community options. No one will be forced to move.

Key Goals
The way the state pays for services for people with intellectual and developmental disabilities forces individuals to receive services in institutional settings. Money is provided for anyone who resides in an institutional setting, but money for communitybased options is very limited. When money for community-based options is not available, people are forced to receive services in an institutional setting.
Ohio needs to change the way it funds programs and services so that people with intellectual and developmental disabilities have a real choice to
•• live in the community that they want, with the care that they need;
•• find a job in the community with the help that they need; and
•• pursue activities in the community with the support that they need
The way Ohio pays for and provides services will have to change. These changes will not happen right away. Changes will happen slowly. There will be time to plan and make sure that people have what they need and are safe.

What this means for individuals with disabilities and their families
Once the right services and supports are in place, more people with disabilities will be able to move out of institutional-based settings and into community-based settings. People with intellectual and developmental disabilities should have what they need to be safe. No one should move without the right care or before they are ready.
Ball v. Kasich seeks to create opportunities. The goal is not to close any ICF or workshops. However, as people choose community options, the number of ICF beds may go down and some ICFs and workshops may downsize or close.

Additional information
You can contact Disability Rights Ohio at 1-800-282-9181 (TTY 800-858-3542). Press “2” for our intake line. We will do our best to answer your questions.

COMMUNITY INTEGRATION: Fact Sheet on DRO’s Class Action Lawsuit

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