Case 1:09-cv-01182-JEJ Document 1 Filed 06/22/09 Page 1 of 29

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

____________________________________

:

FRANKLIN BENJAMIN, by and through :

his next friend, Andreé Yock; RICHARD :

GROGG and FRANK EDGETT, by and :

through their next friend, Joyce McCarthy; :

WILSON SHEPPARD, by and through his :

next friend, Pamela Zotynia; SYLVIA :

BALDWIN, by and through her next friend, :

Shirl Meyers; ANTHONY BEARD, by and :

through his next friend, Nicole Turman, :

on behalf of themselves and all others

:

similarly situated,

:

:

Plaintiffs,

: Filed via ECF System

:

v.

: Civil Action No. _____________

:

DEPARTMENT OF PUBLIC WELFARE : Class Action

OF THE COMMONWEALTH OF

:

PENNSYLVANIA and

:

ESTELLE B. RICHMAN, in her official :

capacity as Secretary of Public Welfare of :

the Commonwealth of Pennsylvania,

:

:

Defendants.

:

____________________________________:

COMPLAINT

I. Introduction

1. Plaintiffs, individuals who are institutionalized in Pennsylvania’s state-

operated intermediate care facilities for persons with mental retardation (ICFs/MR),

bring this lawsuit on behalf of themselves and others similarly situated to challenge

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the Defendants’ continuing failure to offer and provide them with the opportunity to receive services in integrated, community settings that are the most appropriate settings to meet their needs, resulting in their continued unnecessary segregation and institutionalization.
2. Despite the fact that Plaintiffs and many others in the state-operated ICFs/MR want to live in community settings and that the community is the most integrated setting appropriate to meet their needs, Defendants have not offered them any alternative to remaining institutionalized.
3. The costs of providing community services to Plaintiffs and putative class members would be far less than the costs of continuing to institutionalize them. The average annual cost of providing services in a state-operated ICF/MR is nearly $228,000 per person, more than double the average per capita cost of providing community services (including residential services) to such an individual.
4. Defendants’ failure to offer and provide community alternatives to Plaintiffs and other persons confined in ICFs/MR who are appropriate for and not opposed to discharge violates Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. Plaintiffs seek appropriate declaratory and injunctive relief.
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II. Jurisdiction and Venue 5. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§
1331, 1343(a)(3), and 1343(a)(4). 6. Plaintiffs’ claims are authorized by 42 U.S.C. §§ 1983 and 12133, 29
U.S.C. § 794a(a)(1), and 28 U.S.C. §§ 2201 and 2202. 7. Venue is appropriate in this district pursuant to 28 U.S.C. § 1391(b)
since Defendants reside in this District. III. Parties
8. Plaintiff Franklin Benjamin is a 48-year-old resident of Philadelphia, Pennsylvania who has been institutionalized in a state-operated ICF/MR since 1966. He brings this lawsuit by and through his next friend, Andreé Yock, pursuant to Federal Rule of Civil Procedure 17(c).
9. Plaintiff Richard Grogg is a 45-year-old resident of York County, Pennsylvania who has been institutionalized in a state-operated ICF/MR since 1988. He brings this lawsuit by and through his next friend, Joyce McCarthy, pursuant to Federal Rule of Civil Procedure 17(c).
10. Plaintiff Frank Edgett is a nearly 51-year-old resident of Cumberland County, Pennsylvania who has been institutionalized in a state-operated ICF/MR
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since 1987. He brings this lawsuit by and through his next friend, Joyce McCarthy, pursuant to Federal Rule of Civil Procedure 17(c).
11. Plaintiff Wilson Sheppard is a 46-year-old resident of Philadelphia, Pennsylvania who has been institutionalized in a state-operated ICF/MR since 1969. He brings this lawsuit by and through his next friend, Pamela Zotynia, pursuant to Federal Rule of Civil Procedure 17(c).
12. Plaintiff Sylvia Baldwin is a 33-year-old resident of Allegheny County, Pennsylvania who has been institutionalized in a state-operated ICF/MR almost continuously since 1990. She brings this lawsuit by and through her next friend, Shirl Meyers, pursuant to Federal Rule of Civil Procedure 17(c).
13. Plaintiff Anthony Beard is a 49-year-old resident of York County, Pennsylvania who has been institutionalized in a state-operated ICF/MR since 1967. He brings this lawsuit by and through his next friend, Nicole Turman, pursuant to Federal Rule of Civil Procedure 17(c).
14. Defendant Department of Public Welfare (DPW) is the Commonwealth agency that is responsible to provide services to Pennsylvanians with mental retardation, including Plaintiffs and putative class members, under the Mental Health and Mental Retardation Act of 1966, 50 P.S.§ 4201(1). DPW operates five ICFs/MR and funds numerous privately-operated ICFs/MR, most of which are large
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institutions. DPW also arranges for and funds the provision of home and communitybased mental retardation services so that people with mental retardation can live in the community with non-disabled persons.
15. Defendant Estelle B. Richman is the Secretary of Public Welfare for the Commonwealth of Pennsylvania. Defendant Richman is responsible to administer and oversee DPW. As such, Defendant Richman is responsible to administer and oversee DPW’s mental retardation programs, including state and private ICFs/MR and community-based mental retardation services. Defendant Richman also is responsible to assure that DPW’s programs and services comply with relevant federal laws, including the Americans with Disabilities Act and Rehabilitation Act. IV. Class Action Allegations
16. Plaintiffs Benjamin, Grogg, Edgett, Sheppard, Baldwin, and Beard, by and through their next friends, bring this lawsuit on behalf of themselves and all other persons who: (1) currently or in the future will reside in one of Pennsylvania’s stateoperated intermediate care facilities for persons with mental retardation; (2) could reside in the community with appropriate services and supports; and (3) do not or would not oppose community placement.
17. The size of the class makes joinder impracticable. Currently, there are approximately 1,272 individuals who reside in Pennsylvania’s five state-operated
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ICFs/MR. The geographic dispersion of these individuals, their lack of resources, and their cognitive disabilities further render individual lawsuits impracticable.
18. There are questions of fact and law common to all class members, including, but not limited to: (a) whether Defendants’ policies and practices effectively exclude class members from accessing the community mental retardation system; (b) whether Defendants’ failure to offer and, if not opposed, provide services and supports in more integrated community settings to class members violates the integration mandates of Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act; and (c) whether Defendants use methods of administration that have the effect of discriminating against individuals with disabilities.
19. The claims of the named Plaintiffs are typical of those of all putative class members.
20. The named Plaintiffs will adequately protect the interests of the class. They have no interests which conflict with other class members. Plaintiffs’ counsel are experienced in litigating class actions, including enforcement of the civil rights of people with disabilities.
21. Defendants have acted or refused to act on grounds generally applicable to the class, thereby making appropriate injunctive and declaratory relief with respect to the class as a whole.
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V. Facts A. Plaintiffs’ Unnecessary Institutionalization 22. Plaintiff Franklin Benjamin, a 49-year-old man with mental retardation
and bipolar disorder, was admitted to Ebensburg Center in 1966 when he was six years old and where he remains institutionalized more than 40 years later.
23. Mr. Benjamin has difficulty communicating, using a few words, signs, as well as body language and facial expressions to communicate. Mr. Benjamin is extremely sensitive to light and noise. The congregate, institutional nature of Ebensburg Center exacerbates Mr. Benjamin’s mental health issues and undermines his capacity to benefit from treatment.
24. Mr. Benjamin, with appropriate services and supports, can live in the community. Ebensburg Center is not the most integrated setting appropriate to meet his needs.
25. On information and belief, DPW’s staff and agents have concluded that Mr. Benjamin is appropriate for discharge to the community, but he remains unnecessarily institutionalized.
26. Mr. Benjamin is not opposed to discharge from Ebensburg Center. His mother is willing to consider discharge to an appropriate, community placement.
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27. Plaintiff Richard Grogg, a 45-year-old man with mental retardation, was involuntarily committed to Selinsgrove Center in 1988, more than 20 years ago. He remains involuntarily committed at Selinsgrove Center.
28. Mr. Grogg is extremely independent and sociable. He holds a number of jobs at Selinsgrove Center and in the community and is involved in his church.
29. Mr. Grogg is so capable of managing his own money that Defendants do not even require him to have a representative payee appointed to receive his Supplemental Security Income payments.
30. Mr. Grogg, with appropriate services and supports, can live in the community. Selinsgrove Center is not the most integrated setting appropriate to meet his needs.
31. On information and belief, DPW’s staff and agents have concluded that Mr. Grogg is appropriate for discharge to the community, but he remains unnecessarily segregated in an institutional setting.
32. Mr. Grogg wants to be discharged from Selinsgrove Center and live in the community closer to his mother, who supports his choice.
33. Plaintiff Frank Edgett, a 51-year-old man with mental retardation, was involuntarily committed to Selinsgrove Center in 1987, more than 20 years ago. He remains involuntarily committed to Selinsgrove Center.
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34. Mr. Edgett was previously admitted to Laurelton Center, a now-closed state-operated ICF/MR, in 1973 when he was 15 years old. He was discharged to a community residential mental retardation program in 1983. He was admitted to Harrisburg State Hospital in 1987 and then transferred to Selinsgrove Center where he remains.
35. Mr. Edgett is very social, engaging, and independent. He enjoys community trips.
36. Mr. Edgett, with appropriate services and supports, can live in the community. Selinsgrove Center is not the most integrated setting appropriate to meet his needs.
37. On information and belief, DPW’s staff and agents have concluded that Mr. Edgett is appropriate for discharge to the community, but he remains unnecessarily segregated in an institutional setting.
38. Mr. Edgett wants to be discharged from Selinsgrove Center and live in the community. His sister supports his choice.
39. Plaintiff Wilson Sheppard, a 46-year-old man with mental retardation, was admitted to White Haven Center in 1969 when he was six years old. He remains at White Haven Center more than 40 years later.
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40. Mr. Sheppard, although non-verbal, can use a simple augmentative communication device to help him communicate with others. Mr. Sheppard enjoys participating in group activities and eagerly anticipates off-grounds community activities and trips.
41. Mr. Sheppard, with appropriate services and supports, can live in the community. White Haven Center is not the most integrated setting appropriate to meet his needs.
42. On information and belief, DPW’s staff and agents have concluded that Mr. Sheppard is appropriate for discharge to the community, but he remains unnecessarily segregated in an institutional setting.
43. Mr. Sheppard is not opposed to discharge from White Haven Center. His mother, who is no longer able to visit him at White Haven Center, is willing to consider community alternatives for Mr. Sheppard.
44. Plaintiff Sylvia Baldwin, a 33-year-old woman with mental retardation, bipolar disorder, and borderline personality disorder, was originally admitted to Polk Center in 1990 when she was 14 years old. Nearly 20 years later, Ms. Baldwin remains at Polk Center.
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45. Ms. Baldwin was discharged twice to residential programs in the community in 1999 and 2001, but was returned to Polk Centers after relatively short time periods due to behavioral and mental health issues.
46. Ms. Baldwin is generally very independent at Polk Center, but she has challenging behavioral issues. Defendants’ failure to develop and implement an appropriate behavioral support plan for Ms. Baldwin led Polk Center staff to use pepper spray on her in 2008 when she exhibited aggressive behavior.
47. Ms. Baldwin, with appropriate services and supports, can live in the community. Polk Center is not the most integrated setting appropriate to meet her needs.
48. On information and belief, Defendants’ staff and agents have concluded that Ms. Baldwin is appropriate for discharge to the community, but she remains unnecessarily segregated in an institutional setting.
49. Ms. Baldwin wants to be discharged from Polk Center and live in the community. Her mother supports that choice.
50. Plaintiff Anthony Beard, a 49-year-old man with mental retardation, was admitted to Ebensburg Center in 1967 when he was seven years old. He remains at Ebensburg Center more than 40 years later.
51. Mr. Beard is blind and has significant bilateral hearing loss.
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52. Mr. Beard, with appropriate services and supports, can live in the community. Ebensburg Center is not the most integrated setting appropriate to meet his needs.
53. On information and belief, DPW’s staff and agents have concluded that Mr. Beard is appropriate for discharge to the community, but he remains unnecessarily segregated in an institutional setting.
54. Mr. Beard is not opposed to discharge from Ebensburg Center. Mr. Beard’s mother is no longer able to travel from her home in York County to Ebensburg Center to visit Mr. Beard. She wants him to be discharged to a community placement closer to York County.
B. Pennsylvania’s Mental Retardation System 55. The Mental Health and Mental Retardation Act of 1966 (MH/MR Act), 50 P.S. §§ 4101-4704, requires DPW “[t]o assure within the State the availability and equitable provision of adequate ... mental retardation services for all persons who need them ....” 50 P.S. § 4201(1). 56. The MH/MR Act requires DPW to operate any state facilities and to provide at least 90 percent of the funding for community-based mental retardation services. 50 P.S. §§ 4202(a), 4509(1).
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57. The MH/MR Act also requires the establishment of county mental health and mental retardation programs that are responsible to administer community-based mental retardation programs. 50 P.S. § 4301. The county mental health and mental retardation programs act as the agents of DPW to conduct intake to assess service needs, to develop community services, and to arrange for funding for those services for individuals with mental retardation.
58. DPW implements its responsibility to provide mental retardation services to Pennsylvanians who need them in the following ways: (a) it directly operates five intermediate care facilities for persons with mental retardation (ICFs/MR); (b) it funds services in numerous privately-operated ICFs/MR; and (c) it funds the provision of community-based mental retardation services administered through its agents, the county mental health and mental retardation programs.
59. An ICF/MR is a type of licensed facility that is funded through the joint federal-state Medical Assistance program.
a. All ICFs/MR – whether private or state-operated -- must comply with detailed criteria established by federal regulations. 42 C.F.R. Pt. 483, Subpt. I.
b. As a Medical Assistance service, the federal government provides a funding match for the costs of ICF/MR services in Pennsylvania. With adjustments under the American Recovery and Reinvestment Act of 2009, the federal funding
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match for Fiscal Year 2009 (October 1, 2008 to September 30, 2009) is approximately 63.1 percent.
60. DPW directly operates five ICFs/MR (which are also called “state centers”). These state-operated ICFs/MR are: (1) Ebensburg Center, located in Cambria County; (2) Hamburg Center, located in Berks County; (3) Polk Center, located in Venango County; (4) Selinsgrove Center, located in Snyder County; and (5) White Haven Center, located in Luzerne County.
61. As of July 2008, the five state-operated ICFs/MR housed a total of 1,272 individuals, ranging from 129 at Hamburg Center to 347 at Selinsgrove Center.
62. Between July 1, 2007 and December 31, 2008, 15 residents of stateoperated ICFs/MR were discharged to community services, and five residents were admitted to those facilities. During that same time period, 57 residents died.
63. All of the state-operated ICFs/MR operate at significantly less than full capacity, with Hamburg operating at a little more than 50 percent capacity.
64. The Commonwealth’s allocation to fund services at the five stateoperated ICFs/MR for Pennsylvania’s Fiscal Year 2008-2009 (July 1, 2008 to June 30, 2009) is nearly $290 million, an average annual cost of nearly $228,000 to provide services to each of the 1,272 residents.
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65. The Governor’s proposed budget for FY 2009-2010 will increase the allocation to fund services at the five state-operated ICFs/MR to approximately $303 million, an increase of nearly 4.5 percent. With the projection that the number of individuals at the state-operated ICFs/MR will decrease to approximately 1,240 persons (primarily due to deaths), the average annual per capita cost to serve an individual in one of those facilities will increase to more than $244,000.
66. DPW funds an array of home and community-based services for persons with mental retardation. The Medical Assistance program provides nearly 90 percent of the funding for these services through home and community-based services (HCBS) waivers, including the Consolidated Waiver, approved by the federal government pursuant to 42 U.S.C. § 1396n(c).
a. HCBS waivers allow states to include in their state plans as “Medical Assistance” home or community-based services for individuals who, without such care, would require institutionalization in an intermediate care facility for persons with mental retardation, nursing facility, or similar institution. 42 U.S.C. § 1396n(c).
b. Pursuant to HCBS waivers, states can provide an array of services, including services that cannot be funded as mandatory or optional services under
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Title XIX, such as habilitation services, vocational services, and respite services for persons with mental retardation. 42 U.S.C. § 1396n(c)(4)(B); 42 C.F.R. § 440.180.
c. The purpose of Title XIX’s HCB waivers is to encourage states to provide services to assist individuals with disabilities to avoid institutionalization. 42 U.S.C. § 441.300. As long as community-based services vis-a-vis institutional services are cost-neutral, see 42 U.S.C. § 1396n(c)(2)(D), the preference is to provide services in the community.
d. The Consolidated Waiver, established in 1986, is the largest HCB Waiver in the Commonwealth, both in terms of the number of individuals served and expenditures. Approximately 15,000 Pennsylvanians receive services under the Consolidated Waiver. The Consolidated Waiver is the primary funding source for community-based mental retardation services in Pennsylvania. The Consolidated Waiver offers a broad range of community-based mental retardation services, depending on the participant’s needs, including: residential habilitation; home and community-based habilitation; day habilitation; vocational services; environmental accessibility adaptations; and transportation. For individuals who participate in the Consolidated Waiver, there is no monetary cap on services. Participants are entitled to receive any services they need that are available under the Waiver.
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e. Consolidated Waiver services are Medical Assistance services and, as such, the federal government provides a funding match for those services. Currently, the federal match is 63.1 percent.
67. The average annual cost of community-based residential services for an individual with mental retardation in Fiscal Year 2008-2009 is approximately $80,200. The average annual cost of non-residential community-based services and supports for an individual with mental retardation in Fiscal Year 2008-2009 is approximately $15,300. Accordingly, the average annual cost of community-based services for a person with mental retardation who receives residential and nonresidential supports is less than $100,000 -- less than one-half of the cost of comparable services in a state-operated ICF/MR.
68. There is a waiting list for community-based mental retardation services in Pennsylvania. Defendants divide individuals on the waiting list into three categories: “emergency” (i.e., those who need services immediately); “critical” (i.e., those who need services within two years); and “planning” (i.e., those who are anticipated to need services more than two but less than five years away).
69. Defendants require their agents to complete Prioritization of Urgency of Need for Services (PUNS) forms for each individual with mental retardation who
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applies for community mental retardation services and are not fully served, including individuals who reside in the state-operated ICFs/MR.
70. Although Defendants require Supports Coordinators (i.e., case managers) to be provided to all individuals in the state-operated ICFs/MR, the ratio of Supports Coordinators to clients in those institutions is significantly lower than the ratio of Supports Coordinators to clients who live in the community since DPW does not pay for supports coordination services provided to residents of the state-operated ICFs/MR. The low ratio, combined with the distance between many Supports Coordinators and the clients living in isolated state-operated ICFs/MR, undermine the ability of Supports Coordinators to provide effective services to clients in those facilities.
C. Defendants’ Failure to Offer Community Alternatives to State-Operated ICF/MR Residents
71. All persons with mental retardation who are institutionalized in stateoperated ICFs/MR, with appropriate supports and services, could live in more integrated, community settings.
72. State-operated ICFs/MR are not the most integrated setting appropriate to the needs of any individual resident of those facilities.
73. The Commonwealth has embraced the principle of “normalization which defines the right of the individual with mental retardation to live a life which is as
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close as possible in all aspects to the life which any member of the community might choose.” 55 Pa. Code § 64001.1.
74. Both the Secretary of Public Welfare, Defendant Richman, and the Deputy Secretary for the Office of Developmental Programs, Kevin Casey, do not dispute that people with mental retardation can reside in the community with appropriate community-based services and supports.
75. Many residents of state-operated ICFs/MR and their families are not opposed to discharge to the community as long as appropriate supports and services are in place.
76. Some residents of state-operated ICFs/MR or their families who might currently be opposed to discharge to the community may not be familiar with the types of community services and supports that could be provided and, if they were provided with information and education about such services and supports, they might not be opposed to discharge.
77. Many residents who had lived for many years in now-closed stateoperated ICFs/MR and who were discharged to community-based placements despite initial opposition by them or their families now are satisfied with the community services and supports they receive.
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78. Despite the fact that the named Plaintiffs and other state-operated ICF/MR residents are appropriate for and not opposed to discharge to the community with appropriate supports and services, Defendants have failed to offer them appropriate community alternatives.
79. Although Defendants have required PUNS forms to be completed for the named Plaintiffs and putative class members, they either are not on the waiting lists for services or are unlikely to be removed from the waiting lists despite their categorization of need.
a. Defendants’ agents have never prepared a PUNS for Plaintiff Benjamin because they do not consider him to be on the waiting list for community services.
b. In July 2007, Defendants’ agents prepared a PUNS for Plaintiff Grogg that removed him from the waiting list because “all [of his] needs [are] being met” and he has no need for community services and supports, even though he is extremely independent and capable of living in the community with appropriate services and supports. On information and belief, Defendants’ agents do not currently consider Mr. Grogg to be in need of community services and has not made and will not make any efforts to offer or develop community alternatives to meet his needs.
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c. Defendants’ agents did not complete PUNS forms for Plaintiffs Edgett and Sheppard until 2008, at which time Defendants’ agents identified their waiting list status as “planning.” Given their status as persons who are unnecessarily institutionalized, Plaintiffs Edgett and Sheppard should have been placed on the “emergency” waiting list. Moreover, individuals who are in the “planning” group, such as Messrs. Edgett and Sheppard, are not likely to be removed from the waiting list within five years given the number of individuals on the emergency and critical waiting lists.
d. Defendants’ agents completed a PUNS form for Plaintiff Baldwin in September 2008 that identified her waiting list status as “critical,” and which indicates that community residential and other supports were first requested for Ms. Baldwin in December 2003.
e. Defendants’ agents completed a PUNS form for Plaintiff Beard in May 2008 that identified his waiting list status as “emergency,” and that indicates that community services and supports were first requested for Mr. Beard in March 2006.
f. State-operated ICF/MR residents who are on the emergency or critical waiting lists, such as Mr. Beard and Ms. Baldwin, are unlikely to receive services within two years since Defendants’ agents give priority to persons living in
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the community who are on the emergency and critical waiting lists over those who are institutionalized.
80. In at least the past five fiscal years, DPW has sought and received from the General Assembly funding for initiatives to provide community-based services for individuals with mental retardation who are on the waiting list for community services, including: more than 3,400 individuals in FY 2007-2008 and more than 1,300 individuals in FY 2008-2009. DPW has requested funding for FY 2009-2010 to provide community-based services to nearly 800 persons on the waiting list.
81. On information and belief, more than 1,000 of the approximately 5,500 persons who have received or will receive funding for community services under the waiting list initiatives between FY 2007-2008 and FY 2009-2010 will receive, inter alia, residential services and supports.
82. Only 15 residents of state-operated ICFs/MR have been provided with community-based services and supports through the waiting list initiatives since the beginning of Fiscal Year 2007-2008.
83. The costs to Defendants of providing Plaintiffs and putative class members with appropriate, community-based services, including residential services, would be less than 50 percent of the average costs Defendants currently pay to provide them with services in the state-operated ICFs/MR.
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84. The costs to Defendants of providing community alternatives to stateoperated ICF/MR residents could be further reduced if they implemented the “Money Follows the Person” (MFP) Rebalancing Demonstration Project. Under this Project, the federal government authorized Pennsylvania to receive an enhanced federal match of approximately 77 percent to provide community alternatives to 87 residents of state-operated ICFs/MR (30 in calendar year 2009 and 57 in calendar year 2010). Such an increased match would defray the costs involved in transitioning people from institutional to community services (including the costs of funding, for a short period of time, both institutional and community services for the individuals). Defendants, however, have not implemented and have no plans to implement this initiative for state-operated ICF/MR residents at this time.
85. DPW does not have an integration plan -- with specific time lines and discharge benchmarks -- to develop community alternatives for residents of stateoperated ICFs/MR.
86. DPW does not have a waiting list to provide community alternatives to residents of state-operated ICFs/MR that moves at a reasonable pace.
D. Irreparable Harm 87. Plaintiffs and putative class members have suffered irreparable harm as a result of the Defendants’ actions and inactions in this case.
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VI. Claims A. Violation of Title II of the Americans with Disabilities Act 88. Paragraphs 1 through 87 are incorporated by reference. This Count is
brought solely against Defendant Richman in her official capacity for acts and omissions under state law.
89. Plaintiffs and putative class members have mental retardation, an impairment that substantially limits one or more major life activities, including but not limited to, caring for themselves, learning, concentrating, and thinking. As such, they are persons with disabilities protected by the Americans with Disabilities Act (ADA). 42 U.S.C. §§ 12102(1)(A), 12102(2)(A).
90. Plaintiffs and putative class members are eligible for community-based mental retardation services and, as such, are qualified persons with disabilities. 42 U.S.C. § 12131(2).
91. DPW, operated and administered by Defendant Richman, is a public entity subject to the requirements of Title II of the ADA. 42 U.S.C. § 12131(1)(B).
92. Defendant Richman violates Title II of the ADA, 42 U.S.C. § 12132 and 28 C.F.R. § 35.130(d), by unnecessarily segregating Plaintiffs and putative class members in institutions, by failing to offer them mental retardation services in the community, which is the most integrated setting appropriate to meet their needs, and
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by failing to provide such services to Plaintiffs and those putative class members who are not opposed to discharge.
93. Defendant Richman violates Title II of the ADA, 42 U.S.C. § 12132 and 28 C.F.R. § 35.130(b)(3), by using methods of administration that subject Plaintiffs and putative class members to discrimination through continued unnecessary segregation and institutionalization, including, but not limited to:
a. failing to effectively assess all state-operated ICF/MR residents to determine what community supports and services they need;
b. allowing DPW’s agents to completely remove state-operated ICF/MR residents from the waiting list for community mental retardation services, to improperly place them on the “planning” waiting list, and/or by not considering even those on the “emergency” waiting list as priorities;
c. not assuring that Plaintiffs and putative class members have access to effective Supports Coordination services to assist them in securing appropriate community services;
d. failing to provide ICF/MR residents and their families with adequate information about the community placements to enable them to make an informed choice if and when they are offered community services; and
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e. failing to have a plan with specific and concrete benchmarks and timelines within which state-operated ICF/MR residents and their families will be offered and, if accepted, provided with community alternatives so that there is a waiting list that moves at a reasonable pace.
B. Violation of Section 504 of the Rehabilitation Act 94. Paragraphs 1 through 93 are incorporated by reference. This Count is brought solely against Defendant DPW. 95. Plaintiffs and putative class members have mental retardation, an impairment that substantially limits one or more major life activities, including but not limited to, caring for themselves, learning, concentrating, and thinking. As such, they are persons with disabilities protected by Section 504 of the Rehabilitation Act. 29 U.S.C. § 705(20)(B). 96. Plaintiffs and putative class members are eligible for community-based mental retardation services and, as such, are qualified persons with disabilities pursuant to Section 504 of the Rehabilitation Act. 97. DPW is a recipient of federal financial assistance and, as such, is subject to the requirements of Section 504 of the RA. 29 U.S.C. § 794(b). 98. Defendant DPW violates Section 504 of the RA, 29 U.S.C. § 794 and 28 C.F.R. § 41.51(d), by unnecessarily segregating Plaintiffs and putative class members
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in institutions, by failing to offer them mental retardation services in the community, which is the most integrated setting appropriate to meet their needs, and by failing to provide such services to Plaintiffs and those putative class members who are not opposed to discharge.
99. Defendant DPW violates Section 504 of the RA, 29 U.S.C. § 794 and 28 C.F.R. § 41.51(b)(3), by using methods of administration that subject Plaintiffs and putative class members to discrimination through continued unnecessary institutionalization, including, but not limited to:
a. failing to effectively assess all state-operated ICF/MR residents to determine what community supports and services they need;
b. allowing its agents to completely remove state-operated ICF/MR residents from the waiting list for community mental retardation services, to improperly place them on the “planning” waiting list, and/or by not considering even those on the “emergency” waiting list as priorities;
c. not assuring that Plaintiffs and putative class members have access to effective Supports Coordination services to assist them in securing appropriate community services;
27

Case 1:09-cv-01182-JEJ Document 1 Filed 06/22/09 Page 28 of 29
d. failing to provide ICF/MR residents and their families with adequate information about the community placements to enable them to make an informed choice if and when they are offered community services; and
e. failing to have a plan with specific and concrete benchmarks and timelines within which state-operated ICF/MR residents and their families will be offered and, if accepted, provided with community alternatives so that there is a waiting list that moves at a reasonable pace. VII. Relief
100. Plaintiffs respectfully request that the Court award the following relief: a. exercise jurisdiction over this action; b. certify this case to proceed as a class action pursuant to Federal
Rule of Civil Procedure 23(b)(2); c. issue appropriate declaratory relief and injunctive relief; and d. grant such other relief as may be appropriate, including awarding
reasonable attorneys’ fees, litigation expenses, and costs pursuant to 42 U.S.C. §§ 1988, 12205 and 29 U.S.C. § 794a(b).
28

Case 1:09-cv-01182-JEJ Document 1 Filed 06/22/09 Page 29 of 29

Dated: June 22, 2009

Respectfully submitted,
By: /s/ Robert W. Meek Robert W. Meek PA 27870 Mark J. Murphy PA 38564 Disability Rights Network of PA 1315 Walnut Street, Suite 400 Philadelphia, PA 19107-4798 (215) 238-8070 (215) 772-3126 (fax) RMeek@drnpa.org
By: /s/ Stephen F. Gold Stephen F. Gold PA 09880 125 South Ninth Street, Suite 700 Philadelphia, PA 19107 (215) 627-7100 (215) 627-3183 (fax) stevegoldada@cs.com
Counsel for Plaintiffs

29

 
 Case 1:09-cv-01182-JEJ Document 15 Filed 08/31/09 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

____________________________________

:

FRANKLIN BENJAMIN, by and through :

his next friend, Andreé Yock; RICHARD :

GROGG and FRANK EDGETT, by and :

through their next friend, Joyce McCarthy; :

SYLVIA BALDWIN, by and through her :

next friend, Shirl Meyers; ANTHONY :

BEARD, by and through his next friend, :

Nicole Turman, on behalf of themselves :

and all others similarly situated,

:

:

Plaintiffs,

:

:

v.

: Civil Action No. 1:09-cv-1182-JEJ

:

DEPARTMENT OF PUBLIC WELFARE :

OF THE COMMONWEALTH OF

: Class Action

PENNSYLVANIA and

:

ESTELLE B. RICHMAN, in her official : (Judge Jones)

capacity as Secretary of Public Welfare :

for the Commonwealth of Pennsylvania, :

:

Defendants.

:

___________________________________:

UNOPPOSED MOTION FOR CLASS CERTIFICATION

Pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2), Plaintiffs,

through their next friends and counsel, submit this Unopposed Motion for Class

Certification. Plaintiffs respectfully request the Court to certify the case to proceed

on behalf of the following class:

All persons who: (1) currently or in the future will reside in one of Pennsylvania’s state-operated intermediate care

Case 1:09-cv-01182-JEJ Document 15 Filed 08/31/09 Page 2 of 3

facilities for persons with mental retardation; (2) could reside in the community with appropriate services and supports; and (3) do not or would not oppose community placement.
In support of this Motion, Plaintiffs submit the accompanying Brief and
Exhibits (including a Certificate of Concurrence (Exhibit A)), which are incorporated
by reference in this Motion.
Respectfully submitted,

Dated: August 31, 2009

By: /s/ Robert W. Meek Robert W. Meek PA 27870 -- ECF User Mark J. Murphy PA 38564 -- ECF User Robin Resnick PA 46980 -- ECF User Disability Rights Network of PA 1315 Walnut Street, Suite 400 Philadelphia, PA 19107-4798 (215) 238-8070 (215) 772-3126 (fax) RMeek@drnpa.org
Stephen F. Gold PA 09880 -- ECF User 125 South 9th Street, Suite 700 Philadelphia, PA 19107 215-627-7100 215-627-3183 (fax) stevegoldada@cs.com
Counsel for Plaintiffs

2

Case 1:09-cv-01182-JEJ Document 15 Filed 08/31/09 Page 3 of 3
CERTIFICATE OF SERVICE
I, Robert W. Meek, certify that Plaintiffs’ Unopposed Motion for Class
Certification, Brief and Exhibits in Support of that Motion, and proposed Order were
filed with the Court’s ECF system on August 31, 2009 and are available for viewing
and downloading from the ECF system by the following counsel who consented to
electronic service:
Allen C. Warshaw, Esquire Chief Counsel
Howard Ulan, Esquire Chief Deputy Counsel Department of Public Welfare Health & Welfare Building, 3rd Floor West Harrisburg, PA 17120
/s/ Robert W. Meek Robert W. Meek

 
 Case 1:09-cv-01182-JEJ Document 20 Filed 09/24/09 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FRANKLIN BENJAMIN, et al,

Plaintiffs

:

v.

DEPARTMENT OF PUBLIC WELFARE,

COMMONWEALTH OF PENNSYLVANIA

and ESTELLE B. RICHMAN,

Defendants

:

: NO. 1:09-cv-1182-JEJ
: : (JUDGE JONES) : : Filed by ECF : : Class Action

MOTION TO DISMISS

Pursuant to Fed. R. Civ. P. 12 (b)(6), defendants move to dismiss all claims

in the amended complaint for failure to state claims on which relief can be granted.

Respectfully

submitted,

Date: September 24, 2009
Deputy
Office
Health Harrisburg, (717) (717)
PA

/S/ Howard Ulan Howard Ulan
Chief Counsel
Department of Public Welfare of General Counsel
3rd Floor West & Welfare Building PA 17120 783-2800 (phone) 772-0717 (fax)
hulan@state.pa.us #25058

 
 Case 1:09-cv-01182-JEJ Document 17 Filed 09/02/09 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FRANKLIN BENJAMIN, by and through his next friend, Andree Yock; RICHARD GROGG and FRANK EDGETT, by and through their next friend, Shirl Meyers; ANYTHONY BEARD, by and through his next friend, Nicole Turman, on behalf of themselves and : all others similarly situated,

No. 09-cv-O 1182

Plaintiffs,

v.

Class Action

DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA and ESTELLE B. : RICHMAN, in her official capacity as Secretary of Public Welfare for the : Commonwealth of Pennsylvania

Judge Jones

Defendants.

ORDER

September 2, 2009

Upon consideration of Plaintiffs' Unopposed Motion for Class Certification,

it is hereby ORDERED:

I. Plaintiffs' Motion (Doc. 15) is GRANTED based upon the following

findings:

Case 1:09-cv-01182-JEJ Document 17 Filed 09/02/09 Page 2 of 4
a. The requirements of Federal Rule of Civil Procedure 23(a) are satisfied. 1. The evidence indicates that there are more than 1,200 class members. These individuals have intellectual disabilities and have low incomes, making it unlikely that they would file individual lawsuits. In addition, the class members are dispersed throughout the Commonwealth, undermining the expediency of joinder. The class is thus too numerous to make joinder practicable. 11. There are questions of law and fact common to the named individual Plaintiffs and members of the class: (a) whether Defendants have a viable integration plan for residents of stateoperated ICFs/MR; (b) whether Defendants properly evaluate residents of state-operated ICFslMR to asses their community service and support needs; (c) whether Defendants' policies and practices, including its administration of its waiting list process, effectively exclude class members from accessing the community mental retardation system; (d) whether Defendants' failure to offer and, if not opposed, provide services and supports in more integrated community settings to class

Case 1:09-cv-01182-JEJ Document 17 Filed 09/02/09 Page 3 of 4
members violates the integration mandates of the Americans with Disabilities Act (ADA) and the Rehabilitation Act (RA); and (e) whether Defendants use methods of administration that have the effect of discriminating against individuals with disabilities in violation of the ADA and the RA. 111. The claims of the individual Plaintiffs are typical of those of the class members. The individual Plaintiffs' and class members' claims arise out of the same policies, practices, and procedures of Defendants and are based on the same legal theories under the ADA and the RA. IV. The individual Plaintiffs will fairly and adequately prosecute this lawsuit. They have no interests antagonistic to the class or subclass members and they have retained qualified counsel to represent them and the class. b. The requirements of Federal Rule of Civil Procedure 23(b)(2) are satisfied because final declaratory and injunctive relief would be appropriate for the class as a whole. II. Plaintiffs Franklin Benjamin, by and through his next friend, Andree York, Richard Grogg and Frank Edgett, by and through their next friend, Joyce McCarthy, Sylvia Baldwin, by and through her next friend Shirl Meyers,

Case 1:09-cv-01182-JEJ Document 17 Filed 09/02/09 Page 4 of 4

and Anthony Beard, by and through his next friend, Nicole Truman, are hereby certified as class representatives.

III. This case shall proceed on behalf of the following class:

All persons who: (1) currently or in the future will reside in on of Pennsylvania's state-operated intermediate care facilities for persons with mental retardation; (2) could reside in the community with appropriate services and supports; and (3) do not or would not oppose community placement.

IV. Attorney Robert W. Meek, Attorney Mark 1. Murphy, Attorney Robin

Resnick, all of the Disability Rights Network, and Attorney Stephen P. Gold

are hereby appointed as class counsel based upon the following findings sufficient to satisfy Federal Rule of Civil Procedure 23(g): a. Counsels' experience in handling class actions and other complex
litigation; b. Counsels' knowledge and experience with claims asserted and
governing law, specifically the ADA and the RA;

c. Counsels' experience in conducting the present litigation thus far and

willingness to continue.

/s/ John E. Jones III The Honorable John E. Jones III United States District Judge

4

 
 Case 1:09-cv-01182-JEJ Document 22 Filed 09/30/09 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

____________________________________

:

FRANKLIN BENJAMIN, by and through :

his next friend, Andreé Yock; RICHARD :

GROGG and FRANK EDGETT, by and :

through their next friend, Joyce McCarthy; :

SYLVIA BALDWIN, by and through her :

next friend, Shirl Meyers; ANTHONY :

BEARD, by and through his next friend, :

Nicole Turman, on behalf of themselves :

and all others similarly situated,

: Filed via ECF System

:

Plaintiffs,

: Civil Action No. 1:09-cv-1182-JEJ

:

v.

: Class Action

DEPARTMENT OF PUBLIC WELFARE :

OF THE COMMONWEALTH OF

: (Judge Jones)

PENNSYLVANIA and ESTELLE B.

:

RICHMAN, in her official capacity as

:

Secretary of Public Welfare of the

:

Commonwealth of Pennsylvania,

:

____________________________________:

PLAINTIFFS' BRIEF IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS

Robert W. Meek Mark J. Murphy Robin Resnick Disability Rights Network of PA 1315 Walnut Street, Suite 400 Philadelphia, PA 19107-4798 215-238-8070

Stephen F. Gold 125 South Ninth Street Suite 700 Philadelphia, PA 19107 215-627-7100

Counsel for Plaintiffs and the Class

Case 1:09-cv-01182-JEJ Document 22 Filed 09/30/09 Page 2 of 31

TABLE OF CONTENTS

Table of Citations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Counterstatement of Factual and Procedural History . . . . . . . . . . . . . . . . . . . . 1

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

I. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

II. Plaintiffs Have Stated Actionable Claims Under the Americans with Disabilities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

A.

DPW's "Queue-Jumping" Argument Is Unavailing . . . . . . 10

B. DPW's Cost Assertions Do Not Justify Dismissal of the Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

C. Plaintiffs Can Enforce the Integration Mandate . . . . . . . . . 16

III. Plaintiffs Have Stated Actionable Claims Under Section 504 of the Rehabilitation Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

i

Case 1:09-cv-01182-JEJ Document 22 Filed 09/30/09 Page 3 of 31
TABLE OF CITATIONS
Cases
Alexander v. Choate, 469 U.S. 287 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Alexander v. Sandoval, 532 U.S. 275 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 18, 21
Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
Barnes v. Gorman, 536 U.S. 181 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Brantley v. Maxwell-Jolly, Civil Action No. C09-3798 SBA, 2009 WL 2941519 (N.D. Cal. Sept. 10, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Clark v. Cohen, 794 F.2d 79 (3d Cir.), cert. denied, 479 U.S. 962 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20
Connor v. Branstad, 839 F. Supp. 1346 (S.D. Iowa 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Consolidated Rail Corp. v. Darrone, 465 U.S. 624 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Crabtree v. Goetz, Civil Action No. 3:08-0939, 2008 WL 5330506 (M.D. Tenn. Dec. 19, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Fisher v. Okla. Health Care Auth., 383 F.3d 1175 (10th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 21
Fowler v. UPMC Shadyside, ___ F.3d ___, 2009 WL 2501662 (3d Cir. Aug. 18, 2009) . . . . . . . . . . . 7, 8
ii

Case 1:09-cv-01182-JEJ Document 22 Filed 09/30/09 Page 4 of 31
Frederick L. v. Dep't of Public Welfare, 364 F.3d 492 (3d Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . 9, 14, 15, 20, 21
Frederick L. v. Dep't of Public Welfare, 422 F.3d 151 (3d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16
Frederick L. v. Dep't of Public Welfare, 157 F. Supp. 2d 509 (E.D. Pa. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 23
Grooms v. Maram, 563 F. Supp. 2d 840 (N.D. Ill. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Helen L. v. DiDario, 46 F.3d 325 (3d Cir.), cert. denied, 516 U.S. 813 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 17, 18, 19, 20
Joseph S. v. Hogan, 561 F. Supp. 2d 280 (E.D.N.Y. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Kentucky Ass'n for Retarded Citizens v. Conn, 674 F.2d 582 (6th Cir.), cert. denied, 459 U.S. 1041 (1982) . . . . . . . . . . . 20
Messier v. Southbury Training School, 562 F. Supp. 2d 294 (D. Conn. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Olmstead v. L.C., 527 U.S. 581 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 12, 17, 18, 19
Pennsylvania Protection and Advocacy, Inc. v. Pennsylvania Dep't of Public Welfare,
402 F.3d 374 (3d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15
Phillips v. Thompson, 715 F.2d 365 (7th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 21
iii

Case 1:09-cv-01182-JEJ Document 22 Filed 09/30/09 Page 5 of 31
South Camden Citizens in Action v. New Jersey Dep't of Environmental Protection,
274 F.3d 771 (3d Cir. 2001), cert. denied, 536 U.S. 939 (2002) . . . . . . . 18 Townsend v. Quasim,
328 F.3d 511 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Turner v. Pennsylvania,
Civil Action No. 07-273, 2009 WL 1858253 (W.D. Pa. June 29, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Williams v. Wasserman, 164 F. Supp. 2d 591 (D. Md. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Yeskey v. Pennsylvania Dep't of Corrections, 118 F.3d 168 (3d Cir. 1997), aff'd, 524 U.S. 206 (1998) . . . . . . . . . . . . 23 Zatuchni v. Richman, Civil Action No. 07-cv-4600, 2008 WL 3408554 (E.D. Pa. Aug. 12, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Statutes and Regulations Rehabilitation Act of 1992, Pub. L. 102-569, 106 Stat. 4344 (1992) . . . . . . . . 22 29 U.S.C. §§ 701(a)(5)-(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 29 U.S.C. § 794 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 42 U.S.C. § 12101(a)(2)-(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 42 U.S.C. § 12132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 42 U.S.C. § 12134 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 28 C.F.R. § 35.130(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18 28 C.F.R. § 41.51(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 21
iv

Case 1:09-cv-01182-JEJ Document 22 Filed 09/30/09 Page 6 of 31
Miscellaneous Brief of United States as Amicus Curiae, Long v. Benson, No. 08-16261-AA (11th Cir. Apr. 2, 2009), available at http://www.usdoj.gov/crt/briefs/longbenson.pdf . . . . . . . . . . . . . . . . . . . . . . . . . 19
v

Case 1:09-cv-01182-JEJ Document 22 Filed 09/30/09 Page 7 of 31
COUNTERSTATEMENT OF FACTUAL AND PROCEDURAL BACKGROUND Plaintiffs are individuals with mental retardation who are institutionalized in public intermediate care fac ilities for persons with ment al retardation (ICFs/MR), large institutions operated by Defendant s Department of Public Welfare and Estelle B. Richman (collectively, DPW). Am. Co mpl. && 1, 8-14, 55. Plaintiffs, who are appropriate for discharge to the community and not opposed to discharge, filed this lawsuit to challenge DPW =s failure to offer them appropriate community supports and services. See id. && 2, 4, 23-26, 29-32, 35- 37, 41-43, 46-49, 72, 86, 92. Plaintiff Franklin Benjam in has been institutionalized at Ebensburg Center for more than 40 of his 49 years. Am . Compl. & 22. The congregate, institutional nature of Ebensburg Cente r undermines his capacity to benefit from treatment there since he is extremely sensitive to noise and light. Id. & 23. Plaintiffs Richard Grogg and Frank Edgett have been instituti onalized in Selinsgrove Center for 20 years each. Id. && 27, 33. Messrs. Grogg and E dgett are both very independent and social. Id. && 28, 35. Mr. Grogg holds j obs at Selinsgrove Center and in the community and does not even need a representative payee for his federal benefits. Id. & 29. Plaintiff Sylvia Baldwin has been institutionalized at Polk Center for approximately 20 of her 33 years, and is generally independent. Id. && 38, 40. Plaintiff Anthony Beard has been institut ionalized at Ebensburg Center for about

Case 1:09-cv-01182-JEJ Document 22 Filed 09/30/09 Page 8 of 31
42 of his 49 years. Id. & 44. All of the named Plai ntiffs are appropriate for discharge to integrated, co mmunity-based placements, and they and their invol ved family members are not opposed to discharge. Id. && 25, 26, 32, 32, 37, 38, 42, 43, 48, 49, 53, 54.
The five named Plaintiffs are not alon e. There currently are approximately 1,272 individuals residing in five state- operated ICFs/MR in Pennsylva nia. Am. Compl. && 54-55. All of these individuals, with appropriate services and supports, could live in more integrated community settings. Id. & 65. Indeed, the Commonwealth has embraced the principle of Anormalization,@ i.e., the right of individual s with mental retardation to live a life Awhich is as close as possible in all aspects to the life which any mem ber of the comm unity might choose.@ Id. & 67 (citing 55 Pa. Code ' 6400.1). Neither Defendant Richman, the Secretary of Public Welfare, nor Kevin Casey, t he Deputy Secretary for DPW =s Office of Developmental Programs, disputes that people with m ental retardation can reside in the community with appropriate supports a nd services. Id. & 68. Moreover, many residents of state-operated ICFs/MR a nd their fam ilies are not opposed to discharge to the community, provi ded that appropriate supports and services ar e offered. Id. & 69. Nevertheless, DPW has failed to offe r these state-operated ICF/MR residents community alternatives. Id. & 72.
2

Case 1:09-cv-01182-JEJ Document 22 Filed 09/30/09 Page 9 of 31
The provision of community supports and services to Plaint iffs and class members would be far less costly to Penns ylvania than is their continued institutionalization in state-operated ICFs/MR. Am. Comp. ¶ 77. DPW currently pays an average of approxi mately $228,000 pe r year to serve each resident of a stateoperated ICF/MR. Id. & 58. In contrast, the aver age per p erson cost of co mmunity-based residential a nd non-residential mental reta rdation services is less than $100,000. Id. & 61.1
Although there is a waiting list for co mmunity-based mental retardation services in Pennsyl vania, Plaintiffs a nd class members either are not o n waiting lists for c ommunity-based mental retarda tion services or are not like ly to be removed from the waiting li sts regardless of their l evel of need. Am. Compl. ¶¶ 62, 63, 73.
 Defendants have never co mpleted the form necess ary to secure Plaintiff Benjamin with a place on the waiting list. Id. ¶¶ 63, 73(a).
1 Although the fede ral government, through the Medical Assistance program, pays more than half of t he costs of services for both the state I CFs/MR and community services, see Am. Compl. && 53(b), 60(e), Pennsylvania could secure an even greater federal funding match for the development of community services for state-operated ICF/MR residents unde r its AMoney Follows the Person @ Rebalancing Demonstration Project. Id. & 78. DPW, however, ha s not taken advantage of that opportunity. Id.
3

Case 1:09-cv-01182-JEJ Document 22 Filed 09/30/09 Page 10 of 31
 Plaintiff Grogg has actually been removed from the waiting list on the basis that the institution is meeting all of his needs, even though he is extremely independent and capable of living in the community with appropriate services and supports. Id. ¶¶ 27-29, 73(b).
 Plaintiff Edgett is identified as being the lowest level priority for the waiting list, even though he is very independent and with appropriate supports and services can live in the community. Id. ¶¶ 34-36, 62, 73(c).
 Even those individuals in the st ate-operated ICFs/MR who are placed in higher priority categories are unlikely to be provided with community services over individua ls in the same cat egories who currently live in the co mmunity and are not instit utionalized. Id. ¶ 73(f). Despite Pennsylvania =s appropriation of funding to provi de community services to nearly 5,000 people with mental retardation in the last two fiscal years (FY 2007-2009) (including approximately 1,000 who have received residential services in the comm unity), only about 23 residents of state-opera ted ICFs/MR received communitybased services during that peri od. See id. && 56, 74-76. 2 The rest
2 In contrast, approximately 76 resi dents of state-operated ICFs/MR died during the same period. See Am. Compl. & 56.
4

Case 1:09-cv-01182-JEJ Document 22 Filed 09/30/09 Page 11 of 31
were individuals who already were living in the comm unity. See id. ¶¶ 75-76. Thus, DPW does not have a waiting list to provide co mmunity alternatives to Plaintiffs and class memb ers that moves at a r easonable pace. Am. Com pl. ¶ 80. DPW has not even developed a viable inte gration plan -- with specific time lines and discharge benchmarks -- to develop co mmunity alternatives for residents of state-operated ICFs/MR. Id. & 79. Plaintiffs allege that DPW=s failure to offer community supports and services to Plaintiffs and class members violates the integration mandates of Title II of the Americans with Disabilities Act (ADA) a nd Section 504 of the Reh abilitation Act (RA), which require public entities to provi de services in the m ost integrated settings appropriate to their needs. Am. Com pl. && 86, 92. Plaintiffs also allege that DPW violates the ADA and RA by using methods of adm inistration that subject them and class memb ers to discrimination through continued unnecessary segregation and institutionalization, including, inter alia,:  failing to effectively assess Plaintif fs and class memb ers to determine their community support needs;  excluding some state-operated ICF/MR residents (including Plaintiffs Benjamin and Grogg) from the wa iting list for co mmunity mental retardation services and not giving t he highest priority to people, like
5

Case 1:09-cv-01182-JEJ Document 22 Filed 09/30/09 Page 12 of 31
Plaintiffs and class memb ers, who are unnecessarily institutionalized over those who are already living in the community;  failing to assure that state-operate d ICF/MR residents have access to effective case management services (known as supports coordination);  failing to provide state- operated ICF/MR residents and their fam ilies with adequate information about community options; and  failing to develop and im plement a viable integration plan to provide community alternatives for state-operated ICF/MR residents. Id. && 62-64, 70, 71 73, 85, 87, 93. Plai ntiffs seek declaratory and i njunctive relief. Id. & 94. The Court granted Plaintiffs' unopposed Motion for Class Certification, certifying this case to proceed on behalf of the following class: All persons who: (1) currently or in the future will reside in one of Pennsylva nia's state-operated intermediate care facilities for persons with ment al retardation; (2) could reside in the co mmunity with appropriate services and supports; and (3) do not or would not oppose comm unity placement. Order dated Sept. 2, 2009 at 4 (Docket # 17).
6

Case 1:09-cv-01182-JEJ Document 22 Filed 09/30/09 Page 13 of 31
DPW has now filed a Motion to Dism iss Plaintiffs' Amended Complaint.3 Although DPW seeks to dism iss all of Pl aintiffs' ADA and RA claims, it in fact addresses only Plaintiffs' clai ms that DPW violated the ADA's and RA's integration mandates. Thes e are not Plaintiffs' only ADA and RA clai ms. Plaintiffs also assert that DPW violates the ADA and RA by using discrim inatory methods of administration. See discussion, supra, at 5-6; Am. Co mpl. ¶¶ 87, 93. DPW does not assert any challenge to these ADA and RA claims and, accordingly, they should not be dismissed.
ARGUMENT I. STANDARD OF REVIEW "To survive a motion to dismiss, a co mplaint must contain sufficient factual matter, accepted as true, to 'state a cl aim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 (2009) (quotation om itted); accord Fowler v. UPMC Shadyside , ___ F.3d ___ , 2009 WL 2501662 at *4 (3d Cir. Aug. 18, 2009) (Att. A) . In other words, accepting as true a plaintiff's factual allegations and all reasonable factual inferences (and e xcluding mere legal conclusions), a court must assess whether the plaintiff has shown a plaus ible claim
3 A class of individuals with mental retardation institutionalized in DPW's psychiatric hospitals have filed sim ilar claims against DPW under the ADA and RA in Jimmie, et al. v. Dep't of Public Welfare, et al. , Civil Action No. 3:09-cv1112-TIV (M.D. Pa.). DPW recently filed a m otion to dism iss the Jimmie plaintiffs' ADA and RA claims on the identical grounds raised in this Motion.
7

Case 1:09-cv-01182-JEJ Document 22 Filed 09/30/09 Page 14 of 31
for relief and not " 'the mere possibility of m isconduct.'" Fowler, 2009 WL
2501662 at *5 (citing Iqbal, 129 S. Ct. at 1950 ); Turner v. Pennsylva nia, Civil
Action No. 07-273, 2009 WL 1858253 at *1 (W.D. Pa. June 29, 2009) (Att. B).
Even after Iqbal, the Third Circuit has emphasi zed that "standards of pleading ar e
not the same as standards of proof." Fowler, 2009 WL 2501662 at *8.4 Plaintiffs
in this case readily establish plausible claims for relief.
II. PLAINTIFFS HAVE STATED ACTIONABLE CLAIMS UNDER THE AMERICANS WITH DISABILITIES ACT.
DPW contends that the Court should dism iss Plaintiffs' claims under the
ADA's integration mandate. To establis h a claim under the integration m andate,
Plaintiffs must demonstrate t hat they are appropriate for and not opposed t o
4 Notably, the Fowler Court interpreted the plaintiff' s allegations that she had a "disability" covered by the RA and th at she was subject to disability " discrimination" as factual assertions -- not le gal conclusions -- t hat must be accepted as true. The Court had "no trouble" conc luding that the plaintiff had adequately alleged a claim for employment discrimination on the basis of her disabil ity based solely on allegations that: she had a disa bility; she requested a transfer to an open position; the defendant did not transfer her or contact her about that or any other open position; and she "believed [def endant's] actions were based on her disability." Fowler, 2009 W L 2501662 at *6. The court did not require the plaintiff, for example, to allege that a non-disabled person was given the position or any ot her specific evidence to suppor t the claim that th e defendant's actions were discriminatory. The court also rej ected the defendant's assertion that the plaintiff had failed to adequately plead that she had a "disability." Id. at *7-*8. The court held that -- even after Iqbal -- the plaintiff was "not required, at this early pleading stage, to go into parti culars about the life activity affected by her alleged disability or detail the natu re of her limitations." Id. at *8. It was enough that she simply pleaded she was a person with a disability. Id. at *7.
8

Case 1:09-cv-01182-JEJ Document 22 Filed 09/30/09 Page 15 of 31
discharge. See Olmstead v. L.C., 527 U.S. 581, 602, 607 (1999) ; Frederick L. v. Dep't of Public Welfare , 364 F.3d 492 (3d Cir. 2004) (Frederick L. I ). DPW concedes that the Amended Complaint satisfies these elements. DPW's Br. at 5.
A state can avoid liability under the in tegration mandate if it asserts and proves that the provision of c ommunity services to Plaintiffs would c onstitute a "fundamental alteration" of its se rvices, programs, or activiti es. See Olmstead v. L.C., 527 U.S. at 603-07 ; Frederick L. I, 364 F.3d at 492. It is well-settled in this Circuit and elsewhere that it is the state's burden to plead and prove a fundamental alteration defense once the p laintiff articulates a reasonable acco mmodation. Frederick L. I , 364 F.3d at 492 n.4. Plaintiffs have articulated a reasonable accommodation, i.e., the provision of more cost-efficient community services. See Compl. ¶¶ 91-97, 104. DPW' s primary challenges to Plaintiffs' ADA integration claim -- queue-jum ping and c osts -- rel ate solely to the fundamental alteration defense, as articulated in Olmstead, 527 U.S. at 603-06 , and its progeny. In othe r words, DPW seeks to use the Co mplaint to definitively establish a defense it has not yet even pleaded. It would be inappr opriate to dism iss Plaintiffs' integration mandate claims at the pleadings stage since it is DPW's burden to plead and prove a fundamental alteration defense. Joseph S. v. Hogan , 561 F. Supp. 2d 280 , 293 (E.D.N.Y. 2008). Even assuming that the validity of this defense should be judged based on the Amended Complaint, however, DPW's arguments not persuasive.
9

Case 1:09-cv-01182-JEJ Document 22 Filed 09/30/09 Page 16 of 31

A. DPW's "Queue-Jumping" Argument Is Unavailing. DPW initially contends that Plaintiffs seek to ju mp ahead of the existing waiting list for comm unity mental retardation services. DP W's Br. at 5. In Olmstead, the Suprem e Court advi sed that, if certain circumstances are met , a court should not displace unnecess arily institutionalized individuals at the top of a waiting list for community services to provide services to individuals l ower on the waiting list simply because t he former individuals commenced litigation. Olmstead, 527 U.S. at 606 .5 Although there is a genera l waiting list for individuals with mental retardation who live in the co mmunity, see Am. Compl. ¶ 62, Plaintiffs assert specific facts that dem onstrate that the queue-jum ping the Olmstead Court sought to fore close is sim ply not at issue in this case. See id. ¶ 113(b).6 First, contrary to DPW' s representations, Plaintiffs have alleged that the "waiting list" process is, in many ways, a sham for individuals with m ental

5 The Olmstead Court was concerned about queue-jumping on a waiting list

for individuals who are unneces sarily institutionalized. Unlike Plaintiffs and class

members, however, almost all of the indi viduals on the waiting list for c ommunity

mental retardation services currently live in the co mmunity and are not

institutionalized. See Am. Com pl. ¶ 73(f), 74-76. As such, Plaintiffs and class

members are not seeking to jump ahead

of ot hers who are unnecessarily

institutionalized.

6 Notably, too, Olmstead involved only two women; in contrast, the Plaintiffs in this case ar e representing a now-certified class of over 1,200 individuals.
10

Case 1:09-cv-01182-JEJ Document 22 Filed 09/30/09 Page 17 of 31
retardation who are institutionalized in state-operated ICFs/MR. Although there is a waiting list for community-based mental retardation services in Pennsyl vania, Plaintiffs and class memb ers either are not on that waiting list or are not likely to be removed from that list regardless of thei r level of need. Am. Compl. ¶¶ 62, 63, 73. As detailed above, DPW has never co mpleted the form necess ary to secure Plaintiff Benjamin with a place on the waiting list; Plaintiff Grogg ha s actually been removed from the waiting list on the basis that the institution is m eeting all of his needs, even though he is extrem ely independent and capable of living in t he community with appropriate services and supports; and Pl aintiff Edgett is identified as being the lowest level priority for the waiting list, even though he, too, is very independent and w ith appropriate support s and services can live in the community. See discussion, supra, at 3-4. Even those individuals in the stateoperated ICFs/MR who are placed in hi gher priority categories are unlikely to be provided with comm unity services over in dividuals in t he same categories who currently live in the co mmunity and are not institutionalized. In the last two fiscal years, DPW has provided community-based services to thousands of individuals on the waiting list, but only 23 residents of state-operated ICFs/MR have received those services during that period; the rest were individuals who already were living in the community. See discussion, supra, at 4.
11

Case 1:09-cv-01182-JEJ Document 22 Filed 09/30/09 Page 18 of 31
Second, the existence of a waiting list per se is not sufficient to insulate DPW from liability. In discussing the fundamental alteration defense, the Olmstead Court suggested that the Cour t should not disrupt a waiting list only if the state has demonstrated that it has "a comprehensive, effectively working plan" to provide co mmunity alternatives to unneces sarily institutionalized individuals and a "waiting list that moves at a reasonable pace ...." Olmstead, 527 U.S. at 60506. Plaintiff has specifically alleged t hat DPW does not have either a viable integration plan or a waiting list that m oves at a reasonable pace. Co mpl. ¶¶ 105106. These factual allegations -- which m ust be taken as true -- foreclose DPW's reliance on the mere existence of the waiting list as sufficient, in and of itself, to establish its fundamental alteration defense at the pleadings stage.7
B. DPW's Cost Assertions Do Not Justify Dismissal of the Complaint. DPW also contends that Plaintiffs' AD A claims must be dismissed because
the cost-savings alleged by Plaintiffs, see Compl. ¶¶ 58, 61, 77-78, do not take into account "transition" costs and because DP W cannot shift appropriations from "one line" in the budget (e.g., institutional) to another (e.g., community). DPW Br. at 56. There are several legal and factual flaws in this assertion.
7 Moreover, as discussed, infra, at 14-15, the Third Circuit has plainly established that DPW cannot escape liability without a viable integration plan, even if it ultim ately establishes that immediate relief would impose a fundam ental alteration.
12

Case 1:09-cv-01182-JEJ Document 22 Filed 09/30/09 Page 19 of 31
First, there is no evidence or even form al allegations in t his case to support DPW's factual assertions in its Brief. The Complaint alleges that it will ultim ately be less costly to serve Plaintiffs and cl ass members in the co mmunity. This is sufficient to survive a m otion to dism iss. DPW cannot offer m ere speculation about transition costs to definitively estab lish its fundamental a lteration defense at the pleadings stage. In Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004), the court overturned the entry of judgment on the pleadings for the state in an ADA integration mandate case, holding, inter alia, that issues of costs cannot be assessed on t he pleadings. Id. at 613-14 . Sim ilarly, in Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003), t he court overturned the entry of summary judgment for the state on its fundamental alteration defense in an ADA integration mandate case because it could not tell "on the present record" if the state's cost concerns were valid. Id. at 520. 8 Surely, if an assessmen t of the relative costs of institutional versus comm unity care ca nnot be made on summary judgm ent or judgment on the pleadings, it cannot be made on a motion to dismiss.
Second, any prohibition on DPW' s shifting budget funds from institutional to community services would govern onl y DPW's actions during the current fiscal
8 DPW's reliance on Williams v. Wasserman, 164 F. Supp. 2d 591 , 634 (D. Md. 2001), DPW's Br. at 5, is misplaced. Williams was decided after a 32-day trial on the merits -- not on a m otion to dismiss. Id. at 595. In reaching i ts conclusion, the court looked to a number of factors based on extensive evidence presented by the parties and did not rely on mere allegations about "transitional costs."
13

Case 1:09-cv-01182-JEJ Document 22 Filed 09/30/09 Page 20 of 31
year. As the Third Circuit observed, this does not foreclose DPW from shifting the allocation of funding in future budget ye ars to end the unnecessary institutionalization of Plaintiffs and the cl ass. Helen L. v. DiDario, 46 F.3d 325, 338 n.24 (3d Cir.), cert. denied, 516 U.S. 813 (1995).
Third, even assuming that DPW can u ltimately prove that it will incur some costs in providing c ommunity alternatives to Plaintiffs and class memb ers, the Third Circuit has established in a trio of cases -- all of which involved DPW -- that such cost issues are not, by them selves, sufficient to establish a fundamental alteration defense.
In Frederick L. I, the Court held in 2004 that cost considerati ons alone were not enough for DPW to establish a fundame ntal alteration defe nse. Although the Court concluded that the evidence suppor ted a fundamental alteration defense, 364 F.3d at 500 , it recognized t hat "[i]t is a gross injustice to keep these disabled persons in an institution notwithstanding th e agreement of all re levant parties that they no longer require institutionalization." Id. As such, the Court required DPW to "make a commitment to action in a manner for which it can be held accountable by the courts."9
9 Indeed, as the Third Circuit and other courts have recognized, the fact that some higher c osts are i nvolved in compliance with the ADA does not necessarily excuse co mpliance. Pennsylvania Protection and Advocacy, Inc. v. Pennsylvania Dep't of Public Welfare, 402 F.3d 374, 380 (3d Cir. 2005); Frederick
14

Case 1:09-cv-01182-JEJ Document 22 Filed 09/30/09 Page 21 of 31
The following year, in Pennsylvania Protection and Adv ocacy, Inc. v.
Pennsylvania Dep't of Public Welfare , 402 F.3d 374 (3d Cir. 2005), the Third
Circuit wrote:
A state cannot meet an allegation of noncompliance [with the ADA's integration mandate] sim ply by replyi ng that compliance would be too costly or w ould otherwise fundamentally alter its noncomplying programs. Any program that runs afoul of the integration mandate would be fundamentally altered if brought into com pliance. Read this broadly, the f undamental alteration defense would swallow the integration mandate whole.
Id. at 381 (emphasis in original).
Subsequently, on appeal following the remand of Frederick L. I , the Court
elaborated on the type of "commitment" that DPW m ust make to avoid liability
under the ADA' s integration mandate. Th e Court held that DPW m ust adopt a
"viable integration plan" that specifies "t he time-frame or targ et date for patient
discharge" and t he "approximate number of patients to be di scharged each time
period ...." Frederick L. v. Dep't of Public Welfare , 422 F.3d 151 , 160 (3d Cir.
2005) (Frederick L. II). The Court explained:
DPW may not avail itself of the "fundamental alteration" defense to relieve its oblig ation to deinstitutionalize eligible patients without establishing a plan that adequately demonstrates a reasonably specific and
L. I, 364 F.3d at 495-96 ; Fisher v. Okla. Health Care Auth. , 335 F.3d 1175 , 1183 (10th Cir. 2003); Messier v. Southbury Training School, 562 F. Supp. 2d 294 , 323, 345 (D. Conn. 2008).
15

Case 1:09-cv-01182-JEJ Document 22 Filed 09/30/09 Page 22 of 31
measurable commitment to deinstitutionalization for which DPW may be held accountable.
* * * DPW's failure to articulate this commitment in the form of an adequately specific co mprehensive plan for placing eligible patients in co mmunity-based programs by a target date places the "funda mental alteration defense" beyond its reach. Id. at 157, 158-59. Four years after Frederick L. II, DPW still has no viable integration plan for Plaintiffs and class memb ers. Am. Co mpl. ¶ 79. This factual allegation -- which must be accepted as true -- wholly unde rmines DPW's speculative assertions about the costs of compliance with the integration mandate.
C. Plaintiffs Can Enforce the Integration Mandate. DPW contends -- in a single sentence - - that Plaintiffs cannot rely on the integration regulation in the ADA, 28 C.F.R. § 35.130(d) . DPW's Br. at 7 (citing Alexander v. Sandoval , 532 U.S. 275 , 291 (2001)). This argum ent, too, i s unavailing for a number of reasons. Plaintiffs need not rely on the ADA' s integration regulation to challenge DPW's failure to provide them with serv ices in the m ost integrated settings appropriate to their needs. In en acting the ADA, Congress recognized that, historically, "society has tended to is olate and segregate individuals with disabilities" and that "discrimination against individuals with disabilities persists in
16

Case 1:09-cv-01182-JEJ Document 22 Filed 09/30/09 Page 23 of 31
such critical ar eas as ... institutionalization ...." 42 U.S.C. § 12101(a)(2)-(3) . Given these broad findings, the Olmstead Court re cognized that the "discrim ination" prohibited by T itle II of the ADA, 42 U.S.C. § 12132 , is sufficiently expansive to enco mpass a state's fai lure to pr ovide community services to i ndividuals who are unnecessarily institutionalized, such as Plaintiffs and class memb ers. Olmstead, 527 U.S. at 598, 600-01.
Moreover, the Supreme Court made cl ear that, when Congress inte nds a statute to be enforced through a private ca use of action, it inte nds the authoritative regulatory interpretations of that st atute to be en forced as well. Alexander v. Sandoval, 532 U.S. 275, 284 (2001). Congress intended Title II of the ADA to be enforced through private rights of action. Barnes v. Gorman , 536 U.S. 181 , 185 (2002). Thus, authoritative, regulatory i nterpretations of Title II of the ADA can be enforced as well. The Third Circuit has explained that t he ADA's integration regulation, 28 C.F.R. § 35.130(d) , not only is an authorita tive interpretation, but that Congress intended it to have the "force of law." Helen L. v. DiDario, 46 F.3d at 332-33. Congress directed the Department of Just ice (DOJ) to prom ulgate regulations under Title II of the ADA and specifically directed DOJ to model those ADA regulations on specific regulations promulgated under the RA. Id. at 331-32 (citing 42 U.S.C. § 12134). The integration regulation t hat DOJ prom ulgated under Title II of the ADA, 28 C.F.R. § 35.130(d), is "almost identical to the section
17

Case 1:09-cv-01182-JEJ Document 22 Filed 09/30/09 Page 24 of 31
504 regulation" (called the "coordi nation regulations") that Congress instructed DOJ to follow. Id. at 332. "As Congress voiced i ts approval of that coordinati on regulation, 28 C.F.R. § 35.130(d) has the force of law." Id.
Moreover, the Third Circuit has explained that, even after Sandoval, federal regulations that "define or flesh out the c ontent of a specific right" under a statute can be relied on to enforce that statutory right. South Camden Citizens in Action v. New Jersey Dep't of Environmental Protection , 274 F.3d 771, 790 (3d Cir. 2001), cert. denied, 536 U .S. 939 (2002) . At the very least, the integration mandate fleshes out the ADA' s statutory prohibi tion on "discrim ination" given the broad scope of "discrimination" that Congress s ought to address, including unnecess ary segregation and institutionalization. See Olmstead, 527 U.S. at 598, 600-01; Helen L., 46 F.3d at 332-33; 42 U.S.C. §§ 12101(a)(2)-(3).
Finally, virtually every court th at has addressed the issue post- Sandoval has agreed that Plaintiffs can enforce the ADA's integration mandate. See Brantley v. Maxwell-Jolly, Civil Action No. C09-3798 SBA, 2009 WL 2941519 at *11-*12 (N.D. Cal. Sept. 10, 2009) (Att. C); Crabtree v. Goetz, Civil Action No. 3:08-0939, 2008 WL 5330506 at *24 (M.D. Tenn. Dec. 19, 2008) (Att. D); Grooms v. Maram, 563 F. Supp. 2d 840, 852 & n.2 (N.D. Ill. 2008) ; Frederick L. v. Dep't of Public Welfare, 157 F. Supp. 2d 509, 538-39 (E.D. P a. 2001). Contra Zatuchni v. Richman, Civil Action No. 07-cv-4600, 2008 WL 3408554 at *11-*12 (E.D. Pa.
18

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Aug. 12, 2008) (Att. E) (without analyzing the re gulatory language, the court held that the i ntegration mandate did not cons true a "personal right" so as to be enforceable, even though the language is di rected explicitly and specifically at individuals with disabilities). DOJ, too, has opined that the ADA' s integration regulation is enforceable. See Brief of United States as Amicus Curiae at 8-20, Long v. Benson , No. 08-16261-AA (11th Ci r. Apr. 2, 2009), available at http://www.usdoj.gov/crt/briefs/longbenson.pdf.
III. PLAINTIFFS HAVE STATED ACTIONABLE CLAIMS UNDER SECTION 504 OF THE REHABILITATION ACT. DPW's challenges to Plaintiffs' integration mandate claim under Section 504 of the RA, 29 U.S.C. § 794 , appear trapped in a time warp, relying primarily on cases that were decided prior to Olmstead and t hat, most importantly, did not clearly address the scope of th e RA's integration regulation, 28 C.F.R. § 41.51(d) . DPW's Br. at 7. DPW's arguments simply do not reflect the current state of the law in this Circuit and elsewhere. The Third Circuit in Clark v. Cohen , 794 F.2d 79 , 85 n.3 (3d Cir.), cert. denied, 479 U.S. 962 (1986), indicated that Section 504 of t he RA did not requi re states to provide community services, but the Court subse quently explained the narrow nature of t hat ruling. In Helen L., the Third Circuit noted that Clark was not "concerned with the integration mandate of the ADA or the Rehabil itation
19

Case 1:09-cv-01182-JEJ Document 22 Filed 09/30/09 Page 26 of 31
Act." Helen L., 46 F.3d at 334 (emphasis added).10 DPW inexplicably does not
cite Clark, but the cases on which it does rely are inapposit e because, like Clark,
those cases did not clearly involve the RA' s integration regulation. See Phillips v.
Thompson, 715 F.2d 365 , 368-69 (7th Cir. 1983) (failing t o identify what, if any,
RA regulations plai ntiffs relied upon); Kentucky Ass'n for Retarded Citizens v.
Conn, 674 F.2d 582, 585 (6th Cir.) (relying on provision concerning discriminatory employment tests), cert. denied, 459 U.S. 1041 (1982).11
While DPW dwells on decisions from long ago, it i gnores more recent
jurisprudence in this Circuit and elsewh ere that explicitly allows use of the
integration mandate of Section 504 of the RA to secure community alternatives for
people who are unne cessarily institutionalized. In Frederick L. I , the Court, in a
case filed under the integration mandates of the ADA and RA, wrote: "We have
construed the provi sions of the RA and ADA in light of their close sim ilarity of
10 DPW cites Helen L., 46 F.3d at 331 , for the position that the Third Circuit recognized that Section 504 is " practically a dead letter as a remedy for segregated public services." DPW Br. at 8. In fact, this quote is from a law review article to which the Circuit cited to indicate that the ADA was enact ed due to perceived shortcomings in the RA. Helen L. did not decide whether the RA could ever be used as a vehicle to secure co mmunity alternatives for people who are unnecessarily institutionalized.
11 DPW' s citation to Connor v. Branstad , 839 F. Supp. 1346 , 1356 (S.D. Iowa 1993), DPW's Br. at 7, also is unavaili ng. The court in that case rejected not only the plaintiffs' Section 504 i ntegration mandate claims, but also those asserted under the ADA, id. at 1357-58 -- a decision t hat was repudiated by Olmstead. Plainly, the court's analysis in Connor is questionable.
20

Case 1:09-cv-01182-JEJ Document 22 Filed 09/30/09 Page 27 of 31
language and purpose." Frederick L. I, 364 F.3d at 491 (citing Helen L., 46 F.3d at 330-32). Thus, "where appr opriate for the patient, both the ADA and RA favor integrated, community-based treat ment over instit utionalization." Id. at 491-92 . This conclusion has been em braced by ot her appellate courts. See Radaszewski, 383 F.3d at, 607; Fisher, 335 F.3d a t 1179 n.3 . The Third Circuit' s ruling definitively establishes Plaintiffs' right to proceed with their integration mandat e claims under Section 504 of the RA.
DPW also contends that Congress did not intend to make Section 504 of the RA equivalent to Title II of the ADA since Congress am ended the RA to incorporate the employm ent provisions of Title I of the ADA, b ut did not incorporate into the RA th e provisions of Title II of the ADA. DPW's Br. at 8 (citing 29 U.S.C. § 794(d)). Congress, however, had no need to take special steps to make Section 504 equivalent to Title II of the ADA since it had already done so. In directing that DOJ' s Title II regulatio ns must follow specific RA regulations, Congress assured that the rights under those statutes are equivalent. See 42 U.S.C. § 12134; Helen L., 46 F.3d at 331-33.
In a footnote and again relying on Sandoval, DPW asserts that Plaintiffs cannot rely on the RA's Section 504 regulation, 28 C.F.R. § 41.51(d). DPW Br. at 8 n.2. For the same reasons discussed previously with respect to the ADA's
21

Case 1:09-cv-01182-JEJ Document 22 Filed 09/30/09 Page 28 of 31
integration regulation, the RA's integrat ion mandate is enforceable as well. See discussion, supra, at 16-19.
The RA's statutory prohibiti on on "di scrimination," like the ADA's, is sufficient to establish an integration m andate claim regardless of any regulation. As in the ADA, the RA includes specific findings that people with disabilities "continually encounter various forms of discrimination in such critical areas as ... institutionalization" and that the "goals of the Nation properly include " assuring that people with disabilities have "full in clusion and integration in society ...." 29 U.S.C. §§ 701(a)(5)-(6) . These findi ngs were added to the RA following enactment of the ADA to further assure t hat they would be construed consistentl y. Rehabilitation Act Amendments of 1992, Pub. L. 102-569, § 101, 106 Stat. 4344 (1992). Even prior to these amendments to the RA, the Supreme Court recognized that in enacting the RA Congress attempte d to reach disabi lity-based discrimination that is based on "thoughtlessness a nd indifference -- of benign neglect," including "'shameful oversights,' which caused the handicapped to li ve among society 'shunted aside, hidden, and ignore d.'" Alexander v. Choate, 469 U.S. 287 , 295-96 (1985). Thus, since the conduct which is the subject of Plaintiffs' Complaint -- unnecessary institutionalization -- is precisely the sort of conduct that Congress intended to reach, Plaintiffs' RA claim is va lid, and the RA regulation does not expand the scope o f the stat utory prohibition on discrimination. See
22

Case 1:09-cv-01182-JEJ Document 22 Filed 09/30/09 Page 29 of 31

Frederick L., 157 F. Supp. 2d at 537-38 integration mandate claim).12

(rejecting Sandoval challenge to RA

CONCLUSION

For all the reasons set forth a bove, Plaintiffs respectfully request that this

Court deny Defendants' Motion to Dismiss.

Respectfully

submitted,

Dated: September 30, 2009
Robert Mark Robin Disability 1315 Philadelphia, 215-238-8070 215-772-3126

By: /s/ Robert W. Meek
W. Meek - PA 27870 J. Murphy - PA 38564 Resnick - PA 46980
Rights Network of PA Walnut Street, Suite 400
PA 19107-4798
(fax) RMeek@drnpa.org

125 Philadelphia, 215-627-7100 215-627-3183

Stephen F. Gold South Ninth Street, Suite 700 PA 19107
(fax) stevegoldada@cs.com

Counsel

for Plaintiffs and the Class

12 In addition, both the Supreme Court and Third Circuit have emphasized that the RA' s regulations are entitled to controlling weight in interpreting the statute. See Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 634 (1984); Yeskey v. Pennsylvania Dep't of Corrections , 118 F.3d 168 , 170-71 (3d Cir. 1997), aff'd, 524 U.S. 206 (1998).
23

Case 1:09-cv-01182-JEJ Document 22 Filed 09/30/09 Page 30 of 31
LOCAL RULE 7.8(b)(2) CERTIFICATE I certify under penalty of perjury t hat Plaintiffs' Brief in Oppositi on to Defendants' Motion to Dism iss complies with Local Rule 7.8(b)(2) because it contains 4,786 words (excludi ng the Table of Contents and Table of Citations) based on the processing system used to prepare the Brief (Word 2003).
/s/ Robert W. Meek
Robert W. Meek

Case 1:09-cv-01182-JEJ Document 22 Filed 09/30/09 Page 31 of 31
CERTIFICATE OF SERVICE
I, Robert W. Meek, hereby certify that Plaintiffs' Brief in Oppositi on to
Defendants' Motion to Dism iss, Attachments, and proposed Orde r were filed with
the Court’s ECF system on September 30, 2009 and are available for vi ewing and
downloading from the ECF system by th e following counsel who consented to
electronic service:
Allen C. Warshaw, Esquire Chief Counsel
Howard Ulan, Esquire Deputy Chief Counsel Office of General Counsel Department of Public Welfare 3rd Floor West, Health & Welfare Building Harrisburg, PA 17120
/s/ Robert W. Meek
Robert W. Meek

 
 Case 1:09-cv-01182-JEJ Document 21 Filed 09/25/09 Page 1 of 10
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FRANKLIN BENJAMIN, et al,

Plaintiffs

:

v.

DEPARTMENT OF PUBLIC WELFARE,

COMMONWEALTH OF PENNSYLVANIA

and ESTELLE B. RICHMAN,

Defendants

:

: NO. 1:09-cv-1182-JEJ
: : (JUDGE JONES) : : Filed by ECF : : Class Action

BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS AMENDED COMPLAINT

Deputy
Department Office
Harrisburg, (717) (717)
PA

Howard Ulan Chief Counsel
of Public Welfare of General Counsel 3rd Floor West Health & Welfare Building
PA 17120 783-2800 (phone) 772-0717 (fax) hulan@state.pa.us #25058
Allen C. Warshaw Chief Counsel

Case 1:09-cv-01182-JEJ Document 21 Filed 09/25/09 Page 2 of 10
PROCEDURAL HISTORY Plaintiffs, five individuals with mental retardations who reside at three stateoperated intermediate care facilities for persons with mental retardation (ICFs/MR), and a class of over 1200 similarly situated, seek community residential services in lieu of institutional care. The legal predicates for the amended complaint are Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132 (claim A) and its regulations, and section 504 of the Rehabilitation Act (§ 504), 29 U.S.C. § 794 (claim B) and its regulations. On September 2, 2009, with the concurrence of defendants, this Court granted Plaintiffs’ Motion to Certify a Class. On September 24, 2009, defendants filed a motion to dismiss both claims. This brief is submitted in support of that motion.
1

Case 1:09-cv-01182-JEJ Document 21 Filed 09/25/09 Page 3 of 10
STATEMENT OF FACTS For purposes of this motion only, defendants assume the following facts to be true. All five named plaintiffs and class members are persons with mental retardation who receive residential care and services at ICFs/MR operated by defendants. All are clinically eligible for community placement, i.e., given sufficient funding to create community placements, defendants would discharge them to community placements.
2

Case 1:09-cv-01182-JEJ Document 21 Filed 09/25/09 Page 4 of 10
STATEMENT OF QUESTIONS INVOLVED 1. Whether Claim A under Title II of the Americans with Disabilities Act and
its regulations states a claim for relief? 2. Whether Claim B under section 504 of the Rehabilitation Act and its
regulations states a claim for relief?
3

Case 1:09-cv-01182-JEJ Document 21 Filed 09/25/09 Page 5 of 10
ARGUMENT
I. CLAIM A FAILS TO STATE A CLAIM FOR RELIEF.
Under the contemporary standards for sufficiency of a complaint under Fed.
R. Civ. P. 8,
only a complaint that states a plausible claim for relief survives a motion to dismiss . . . . Determining whether a complaint states a plausible claim for relief will . . . be a context specific task that requires the reviewing court to draw on its judicial experience and common sense . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not “show[n]” -- “that the pleader is entitled to relief.” Fed.Rule Civ. Proc. 8(a)(2)
Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937, 1950 (2009). Claim A fails
this test. Because the facts pleaded here “do not permit the court to infer more than
the possibility of misconduct,” id., Claim A must be dismissed.
Claim A, a claim for community care in lieu of institutional care under Title
II of the ADA, is governed by Olmstead v. L.C., 527 U.S. 581, 119 S.Ct. 2176
(1999). See also Frederick L. v. Dep’t of Public Welfare, 422 F.3d 151 (3d Cir.
2005) (Frederick II); Frederick L. v. Dep’t of Public Welfare, 364 F.3d 487 (3d
Cir. 2004) (Frederick I). In its plurality opinion, the Olmstead Court explained:
[U]nder Title II of the ADA, States are required to provide community-based treatment for persons with mental disabilities when [1] the State’s treatment professionals determine that such placement is appropriate, [2] the affected persons do not oppose such treatment, and [3] the placement can be reasonably accommodated, taking into
4

Case 1:09-cv-01182-JEJ Document 21 Filed 09/25/09 Page 6 of 10
account the resources available to the State and the needs of others with mental disabilities. 527 U.S. at 606, 119 S.Ct. at 2190. The amended complaint here satisfies the first two elements of the three Olmstead cumulative elements required for relief, but fails to do so for the third element -- it gives no plausible account of how the relief it seeks can be granted without simply allowing plaintiffs to jump the queue. Plaintiffs acknowledge the existence of a waiting list for community care. Amended Complaint ¶ 62. They further allege that those living in the community who are on the emergency and critical waiting lists are given community placement priority over those, such as plaintiffs, who are receiving institutional care. Id. ¶¶ 62, 63. This prioritization is wholly compatible, however, with the requirements of Olmstead, which allows that “the needs of others with mental disabilities be taken into account.” 527 U.S. at 606, 119 S.Ct. at 2190. Plaintiffs’ situation is not “emergency” or “critical,” and so their claim to community care must yield to claims of those whose situation is “emergency or critical.” The Supreme Court, the Third Circuit, and common sense, foreclose the relevance here of plaintiffs’ various fiscal claims. See Amended Complaint ¶¶ 3, 53, 58, 61. Plaintiffs fail to take into account transition costs, i.e., the costs of simultaneously running institutions while creating community programs, see Williams v. Wasserman, 164 F. Supp. 2d 591, 637 (D. Md. 1991), and the
5

Case 1:09-cv-01182-JEJ Document 21 Filed 09/25/09 Page 7 of 10
difference between the marginal cost of care at an institution versus the average cost of care at institutions that still operate. See Olmstead, 527 U.S. at 604 n.15; 119 S.Ct. at 2189 n.15; Frederick I, 364 F.2d at 497. The Third Circuit has already rejected plaintiffs’ notion that Olmstead can require that funding be shifted from one appropriation line to another. Id.
Given that plaintiffs acknowledge the existence of a waiting list for community services, and in light of plaintiffs’ failure to allege a plausible case that the relief they seek would not simply allow them to jump the queue for community services, the question of the existence or nonexistence of a “comprehensive, effectively working plan” for deinstitutionalization, Olmstead, 527 U.S. at 606607, 119 S.Ct. at 2189, is simply irrelevant. Under the “common sense” and “plausibility” pleading standard of Iqbal, Claim A must be dismissed. Indeed, because the Third Circuit already has recognized that defendants have the objective of community placement as soon as fiscally feasible, Frederick II, 422 F.3d at 153, and because the Supreme Court has declared that “officials of the State must be presumed to have a high degree of competence in deciding how to discharge their governmental responsibilities,” Frew v. Hawkins, 540 U.S. 431, 442, 124 S. Ct. 899, 906 (2004) (emphasis added), Claim A must be regarded as highly implausible.
6

Case 1:09-cv-01182-JEJ Document 21 Filed 09/25/09 Page 8 of 10
And because “language in a regulation…may not create a right that Congress has not,” Alexander v. Sandoval, 532 U.S. 275, 291, 121 S.Ct. 1511, 1522 (2001), plaintiffs’ reliance on ADA regulations is to no avail. II. CLAIM B UNDER SECTION 504 OF THE REHABILITATION
ACT FAILS TO STATE A CLAIM FOR RELIEF. Federal courts have routinely rejected claims for deinstitutionalization of persons with mental disabilities under section 504 of the Rehabilitation Act. See Phillips v. Thompson, 715 F.2d 365 (7th Cir. 1983) (deinstitutionalization not required by section 504) (per Posner, J.); Kentucky Ass’n for Retarded Citizens v. Conn, 674 F.2d 582 (6th Cir. 1982) (class of individuals with mental disabilities did not have right to treatment in the least restrictive environment possible; section 504 does not prohibit institutionalization of individuals with mental disabilities); Connor v. Branstad, 839 F. Supp. 1346 (S.D. Iowa 1993) (individuals in facilities for people with mental disabilities do not have right under section 504 to community-based treatment services); Sabo v. O’Bannon, 586 F. Supp. 1132 (E.D. Pa. 1984) (no cause of action where complaint alleged that section 504 was violated because a person with mental disabilities was denied placement in a residential, non-institutional facility).1
1 Section 504 has been amended since these cases were decided, but, with the exception of 29 U.S.C. § 794(d), which is relevant for reason described supra, the amendments are of no consequence here. See 29 U.S.C.A. § 794 (Historical and Statutory Notes 2008).
7

Case 1:09-cv-01182-JEJ Document 21 Filed 09/25/09 Page 9 of 10
Plaintiffs do not have a right to community care under section 504 (claim B). Section 504 is simply not a deinstitutionalization statute. While in some contexts “the protections found in [Title II of] the ADA and in the Rehabilitation Act are interpreted similarly,” Doe v. County of Centre, 242 F.3d 437, 446 (3d Cir. 2001), the Third Circuit has recognized that section 504 is “practically a dead letter as a remedy for segregated public services.” Helen L. v. DiDario, 46 F.3d 325, 331 (3d Cir. 1995) (citation and internal quotation marks omitted). Moreover, Congress itself clearly indicated that ADA/504 equivalence is limited to the employment provisions of the ADA (Title I), and not Title II (public services), when it enacted subsection (d) of section 504, 29 U.S.C. § 794(d), which provides for ADA/504 equivalence solely in Title I (employment) cases. See Pub. L. 102-569, § 506.2
2 Sandoval, supra, here, as in the case of the ADA, deprives section 504 regulations of the force plaintiffs attribute to them.
8

Case 1:09-cv-01182-JEJ Document 21 Filed 09/25/09 Page 10 of 10

CONCLUSION

For the reasons set forth above, claims A and B should be dismissed.

Respectfully

Submitted,

Date: September 24, 2009
Deputy
Office
Health Harrisburg, (717) (717)
PA

/S/ Howard Ulan Howard Ulan
Chief Counsel
Department of Public Welfare of General Counsel
3rd Floor West & Welfare Building PA 17120 783-2800 (phone) 772-0717 (fax)
hulan@state.pa.us #25058
Allen C. Warshaw Chief Counsel

9

 
 Case 1:09-cv-01182-JEJ Document 27 Filed 11/10/09 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

---------------------------------------------------------------------x

FRANKLIN BENJAMIN, et al., on behalf of

:

themselves and all others similarly situated,

:

:

Plaintiffs,

:

: No. 09-cv-01182

-against-

:

(Jones, U.S.D.J.)

:

DEPARTMENT OF PUBLIC WELFARE OF

: (Am. Compl.

THE COMMONWEALTH OF

:

Filed 7/14/09)

PENNSYLVANIA, et al.,

:

:

Defendants,

:

-and-

:

:

CRAIG SPRINGSTEAD, by and through his

:

father and guardian, BERTIN SPRINGSTEAD, et al., :

:

Proposed

Intervenors.

:

---------------------------------------------------------------------x

PROPOSED INTERVENORS’ MOTION FOR INTERVENTION PURSUANT TO FED. R. CIV. P. 24 Proposed Intervenors, Craig Springstead, by and through his father and guardian, Bertin Springstead, Maria Meo, by and through her mother and guardian, Grace Meo, Daniel Bastek, by and through his father and guardian, John Bastek, Michael Storm, by and through his guardian, Polly Spare, Beth Ann Lambo, by and through her father and guardian, Joseph Lambo, Richard Clarke, by and through his father and guardian, Leonard Clarke, Richard Kohler, by and through his sister and guardian, Sara Fuller, Maria Kashatus, by and through her father and

Case 1:09-cv-01182-JEJ Document 27 Filed 11/10/09 Page 2 of 8
guardian, Thomas Kashatus, and Wilson Sheppard, by and through his brother and next friend, Alfred Sheppard (collectively, the “Springstead Intervenors”), respectfully move this Court, pursuant to Rule 24 of the Federal Rules of Civil Procedure, for an Order allowing the Springstead Intervenors to intervene in the above-captioned matter.
In support of this Motion, the Springstead Intervenors aver as follows: 1. By their Amended Complaint, dated July 14, 2009, Plaintiffs commenced this putative class action against Defendant Department of Public Welfare of the Commonwealth of Pennsylvania, “the Commonwealth agency that is responsible to provide services to Pennsylvanians with mental retardation.” (Am. Compl. ¶ 13.) 2. Plaintiffs’ allegations concern “Defendants’ continuing failure to offer and provide them with the opportunity to receive services in integrated, community settings that are the most appropriate settings to meet their needs.” (Am. Compl. ¶ 1.) Plaintiffs seek “appropriate declaratory relief and injunctive relief” (id. ¶ 4), pursuant to Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 and 28 C.F.R. § 35.130(b)(3) (id. ¶¶ 82-87), and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 and 28 C.F.R. § 41.51(d) (id. ¶¶ 88-93). 3. Plaintiffs seek this relief on behalf of a class that, as certified, includes:
2

Case 1:09-cv-01182-JEJ Document 27 Filed 11/10/09 Page 3 of 8
All persons who: (1) currently or in the future will reside in on[e] of Pennsylvania’s state-operated intermediate care facilities for persons w ith mental retardation; (2) could reside in the co mmunity with appropriate services and supports; and (3) do not or woul d not oppose community placement. (Order, Sept. 2, 2009, § III.) 4. The Springstead Intervenors are de facto members of the class certified by this court on September 2, 2009. Notwithstanding Plaintiffs’ claims that appropriate care can only be provided by community-based programs, the Springstead Intervenors believe that persons with developmental disabilities should receive the care and support they require in a setting appropriate to each individual’s unique needs, be it a community-based facility or an Intermediate Care Facility for the Mentally Retarded (“ICF/MR”). Intervenors do not oppose the named Plaintiffs’ right to community care for themselves, but object to this action being prosecuted on behalf of a class – including the Intervenors – who do not seek this relief. 5. The Springstead Intervenors respectfully submit that this request for intervention is timely. 6. The Springstead Intervenors have a concrete, legally protectable interest in their own care (more broadly, the availability of institutional care), that is implicated in this litigation. Specifically, they are all residents of ICFs/MR who do not wish to be forced into community care.
3

Case 1:09-cv-01182-JEJ Document 27 Filed 11/10/09 Page 4 of 8
7. Plaintiffs’ claims, if allowed to proceed on a class action basis, will impair the Springstead Intervenors’ rights to choose ICF/MR care because the Springstead Intervenors will, as a practical matter, be bound by any potential judgment or settlement in this case.
8. Because Plaintiffs seek to force all class members to “choose” community-based care, whereas the Springstead Intervenors wish to protect their rights to choose appropriate treatment in an institutional setting, Plaintiffs do not adequately represent the Springstead Intervenors’ interests.
9. Further, Defendants, who appear to acquiesce in Plaintiffs’ assertion that community placement is appropriate for all persons residing in the stateoperated ICFs/MR, do not adequately represent the Springstead Intervenors’ interests.
10. In the alternative, should the Court deny this motion for intervention as of right pursuant to Rule 24(a)(2) of the Federal Rules of Civil Procedure, the Springstead Intervenors move this Court for an Order, pursuant to Rule 24(b), allowing them to permissively intervene.
In support of this Motion, the Springstead Intervenors submit the accompanying Memorandum of Law, Proposed Order, Response to the Complaint, and Certificate Regarding Concurrence.
4

Case 1:09-cv-01182-JEJ Document 27 Filed 11/10/09 Page 5 of 8
WHEREFORE, the Springstead Intervenors respectfully request that this Court enter an Order allowing them to intervene in the above-captioned action.

Dated: Philadelphia, Pennsylvania November 10, 2009
John
1600 Philadelphia, (215) (215)
Of Counsel:
Michael Rato Sarah M. Goldstein David F. Bacon IV SIDLEY AUSTIN LLP 787 Seventh Avenue New York, New York 10019 (212) 839-5300 (212) 839-5599 (fax)

Respectfully submitted,
VAIRA & RILEY, P.C.
By: /s/ John E. Riley E. Riley
PA ID# 22504 William J. Murray, Jr.
PA ID# 73917 Market Street, Suite 2650 Pennsylvania 19103 789-9405 751-9420 (fax)
Attorneys for Proposed Intervenors

5

Case 1:09-cv-01182-JEJ Document 27 Filed 11/10/09 Page 6 of 8

CERTIFICATE OF SERVICE

I hereby certify that on this 10th day of November 2009, I caused the

foregoing Proposed Intervenors’ Motion for Intervention Pursuant to Fed. R.

Civ. P. 24 and Proposed Intervenors’ Memorandum of Law In Support of

Motion for Intervention to be served upon the attorneys listed below via U.S.

First-Class Mail:

Mark J. Murphy Robert W. Meek Disability Rights Network of PA 1315 Walnut Street Suite 400 Philadelphia , PA 191074798

Stephen F. Gold Stephen F. Gold 125 S. Ninth Street Suite 700 Philadelphia , PA 19107

Allen C. Warshaw Howard Ulan Office of General Counsel Health & Welfare Bldg. 3rd Floor West 7th & Forster Streets Harrisburg , PA 17120

s/ Michael Rato Michael Rato

6

Case 1:09-cv-01182-JEJ Document 27 Filed 11/10/09 Page 7 of 8

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

---------------------------------------------------------------------x

FRANKLIN BENJAMIN, et al., on behalf of

:

themselves and all others similarly situated,

:

:

Plaintiffs,

:

: No. 09-cv-01182

-against-

:

(Jones, U.S.D.J.)

:

DEPARTMENT OF PUBLIC WELFARE OF

: (Am. Compl.

THE COMMONWEALTH OF

:

Filed 7/14/09)

PENNSYLVANIA, et al.,

:

:

Defendants,

:

-and-

:

:

CRAIG SPRINGSTEAD, by and through his

:

father and guardian, BERTIN SPRINGSTEAD, et al., :

:

Proposed

Intervenors.

:

---------------------------------------------------------------------x

CERTIFICATE REGARDING CONCURRENCE PURSUANT TO LOCAL RULE 7.1

Defendants concur in this motion. Plaintiffs do not concur in this motion.

Dated: Philadelphia, Pennsylvania November 10, 2009
John

Respectfully submitted,
VAIRA & RILEY, P.C.
By: /s/ John E. Riley E. Riley
PA ID# 22504 William J. Murray, Jr.
PA ID# 73917

Case 1:09-cv-01182-JEJ Document 27 Filed 11/10/09 Page 8 of 8

Philadelphia, (215) (215)
Of Counsel:
Michael Rato Sarah M. Goldstein David F. Bacon IV SIDLEY AUSTIN LLP 787 Seventh Avenue New York, New York 10019 (212) 839-5300 (212) 839-5599 (fax)

1600 Market Street, Suite 2650 Pennsylvania 19103
789-9405 751-9420 (fax)
Attorneys for Proposed Intervenors

2

 
 Case 1:09-cv-01182-JEJ Document 29 Filed 11/12/09 Page 1 of 41

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

--------------------------------------------------------------x

FRANKLIN BENJAMIN, et al., on behalf of :

themselves and all others similarly situated,

:

:

Plaintiffs,

:

:

-against-

:

:

DEPARTMENT OF PUBLIC WELFARE OF :

THE COMMONWEALTH OF

:

PENNSYLVANIA, et al.,

:

:

Defendants,

:

:

-and-

:

:

CRAIG SPRINGSTEAD, by and through his :

father and guardian, BERTIN SPRINGSTEAD, :

et al.,

:

:

Proposed

Intervenors. :

--------------------------------------------------------------x

No. 09-cv-01182 (Jones, U.S.D.J.)
(Am. Complaint Filed 7/14/09)

PROPOSED INTERVENORS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR INTERVENTION

Case 1:09-cv-01182-JEJ Document 29 Filed 11/12/09 Page 2 of 41
TABLE OF CONTENTS
PRELIMINARY STATEMENT AND STATEMENT OF FACTS .........................1 PROCEDURAL HISTORY.......................................................................................5 STATEMENT OF QUESTIONS INVOLVED.........................................................5 ARGUMENT .............................................................................................................6 I. THE SPRINGSTEAD INTERVENORS FULFILL THE
REQUIREMENTS FOR INTERVENTION AS OF RIGHT .........................6 A. The Springstead Intervenors’ Application Is Timely ................................7 B. The Springstead Intervenors’ Right To Appropriate
Care Is Implicated By The Present Action ................................................8 C. The Springstead Intervenors’ Interests Are At
Risk In The Present Action...................................................................... 12 D. The Springstead Intervenors’ Rights Are Not Adequately
Represented By Any Party In The Existing Litigation............................17 II. IN THE ALTERNATIVE, THE SPRINGSTEAD INTERVENORS
SHOULD BE ALLOWED TO INTERVENE BY PERMISSION...............19 CONCLUSION ........................................................................................................21
i

Case 1:09-cv-01182-JEJ Document 29 Filed 11/12/09 Page 3 of 41

CASES

TABLE OF AUTHORITIES

Page(s)

Amerimar Cherry Hill Assocs., L.P. v. U.S. Fidelity & Guar. Co., No. 90-3354, 1991 WL 137153 (E.D. Pa. July 22, 1991) ....................................6

Baldridge ex. rel. Stockley v. Clinton, 139 F.R.D. 119 (E.D. Ark. 1991) ...................................................................4, 11

Brody by and Through Sugzdinis v. Spang, 957 F.2d 1108 (3d Cir. 1992) .............................................................................19

Cont’l Cas. Co. v. SSM Group, Inc., No. 94-7789, 1995 WL 422780 (E.D. Pa. July 13, 1995) ..................................20

Doe v. Allentown Sch. Dist., No. 06-cv-1926, 2009 WL 2058726 (E.D. Pa. July 10, 2009)...........................17

Harris v. Pernsley, 820 F.2d 592 (3d Cir. 1987) .................................................................................6

Hyland v. Harrison, No. Civ.A. 05-162-JJF, 2006 WL 288247 (D. Del. Feb. 7, 2006) .......................7

In re Cmty. Bank of N. Va., 418 F.3d 277 (3d Cir. 2005) .............................................................................6, 7

In re Real Estate Title & Settlement Servs. Antitrust Litig., 869 F.2d 760 (3d Cir. 1989) ...............................................................................13

Kleissler v. U.S. Forest Serv., 157 F.3d 964 (3d Cir. 1998) ........................................................................passim

Ligas v. Maram, No. 1:05-cv-04331 (N.D. Ill. March 7, 2006) ..............................................15, 16

Ligas v. Maram, No. 1:05-cv-04331 (N.D. Ill. July 7, 2009) ........................................................16

Mountain Top Condo. Ass’n v. Dave Stabbert Master Builder, Inc., 72 F.3d 361 (3d Cir. 1995) .........................................................................7, 8, 17

ii

Case 1:09-cv-01182-JEJ Document 29 Filed 11/12/09 Page 4 of 41
NLRB v. Frazier, 144 F.R.D. 650 (D.N.J. 1992)...............................................................................6
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999).....................................................................................passim
Penn. Truck Lines, Inc. v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., No. 88-6968, 1990 WL 59305 (E.D. Pa. May 4, 1990) .....................................12
Phila. Recycling & Transfer Station, Inc. v. City of Phila., No. 95-4597, 1995 WL 517644 (E.D. Pa. Aug. 29, 1995).................................19
Prudential Prop. & Cas. Inc. Co. v. Leach, No. 03-6352, 2004 WL 1243763 (E.D. Pa. Jun. 7, 2004) ....................................9
Thompson v. Horsham Twp., No. 07-5255, 2008 WL 2389258 (E.D. Pa. June 10, 2008) .....................7, 17, 18
Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)............................................................................17
United States v. Alcan Aluminum, Inc., 25 F.3d 1174 (3d Cir. 1994) ...............................................................................17
Youtie v. Macy’s Retail Holding, Inc., No. 07-3182, 2009 WL 2835156 (E.D. Pa. Aug. 31, 2009)...............................20
STATUTES, RULES AND REGULATIONS 28 C.F.R. § 35.130(e)(1) ......................................................................................4, 10 Fed. R. Civ. P. 24(a)(2)..............................................................................................6
Fed. R. Civ. P. 24(b) ................................................................................................19 Fed. R. Civ. P. 24(c)...................................................................................................2
OTHER AUTHORITIES Abram Chayes, The Role of the Judge in Public Law Litigation,
89 Harv. L. Rev. 1281, 1310 (1976)...................................................................13 7C Wright, Miller & Kane, Federal Practice & Procedure..................................7, 11
iii

Case 1:09-cv-01182-JEJ Document 29 Filed 11/12/09 Page 5 of 41
Proposed Intervenors, Craig Springstead, by and through his father and guardian, Bertin Springstead, Maria Meo, by and through her mother and guardian, Grace Meo, Daniel Bastek, by and through his father and guardian, John Bastek, Michael Storm, by and through his guardian, Polly Spare, Beth Ann Lambo, by and through her father and guardian, Joseph Lambo, Richard Clarke, by and through his father and guardian, Leonard Clarke, Richard Kohler, by and through his sister and guardian, Sara Fuller, Maria Kashatus, by and through her father and guardian, Thomas Kashatus, and Wilson Sheppard, by and through his brother and next friend, Alfred Sheppard (collectively, the “Springstead Intervenors”), respectfully submit this memorandum of law in support of their motion, pursuant to Rule 24 of the Federal Rules of Civil Procedure, to intervene in the abovecaptioned action.
PRELIMINARY STATEMENT AND STATEMENT OF FACTS This case is part of a larger debate taking place in courts (and, more appropriately, legislatures) all across the country regarding the care of the developmentally disabled. The issues raised are complex, emotional, and – too often – divisive. On one side here are the Plaintiffs and their representatives, who want all persons with developmental disabilities to be placed into community care, with immediacy and without exception. On the other side are the state administrators who develop policies to fulfill great needs with scant resources, all

Case 1:09-cv-01182-JEJ Document 29 Filed 11/12/09 Page 6 of 41
while trying to pacify multiple constituencies. Caught in the crossfire are those – such as the proposed intervenors – who believe that each individual is unique, and that a continuum of care – both community and institutional – should be available.
To be clear at the outset, the Springstead Intervenors1 – residents of institutional facilities – wish to remain where they are, and seek to intervene to protect that right. At the same time, however, they respect the right of the named Plaintiffs to choose their own destiny. The Springstead Intervenors are not advocating exclusively institutional care, or exclusively community care, but rather (and only) the best care – as chosen by the individuals, their guardians, and their medical professionals.
In this action, Plaintiffs claim that the manner in which the Commonwealth of Pennsylvania provides community-based services to the developmentally disabled violates the American with Disabilities Act, the Rehabilitation Act, and runs afoul of the Supreme Court’s decision in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), which recognized that people with developmental disabilities have the right to choose to live in the “most integrated setting” appropriate to their particular condition. There is more to this case, however, than the named
1 Specifically, the Springstead Intervenors are all residents of Intermediate Care Facilities for the Mentally Retarded (“ICF/MR”), who do not wish to be forced into community care. A copy of the Springstead Intervenors’ proposed Response to the Complaint, as required by Fed. R. Civ. P. 24(c), which provides more details concerning the proposed intervenors, is submitted herewith.
2

Case 1:09-cv-01182-JEJ Document 29 Filed 11/12/09 Page 7 of 41
Plaintiffs’ desire to live where they choose. Plaintiffs also seek to require the Commonwealth of Pennsylvania to provide community care to a class consisting of all current and future residents of state-run Intermediate Care Facilities for the Mentally Retarded (“ICF/MR”), who “could reside in the community with appropriate services and supports,” and who “do not or would not oppose community placement.” (Am. Compl. ¶ 15.) Elsewhere in the Amended Complaint, Plaintiffs make clear their view that this class includes all of the “approximately 1,272 individuals who reside in Pennsylvania’s five state-operated ICFs/MR.” (Id. ¶ 16.)
Plaintiffs obtained certification of this class without asking how many of these 1,272 individuals in fact desire community care. Sadly, this neglect is strategic; it is in keeping with Plaintiffs’ belief – as explicitly stated in the Amended Complaint – that community care is the only appropriate option for the entire developmentally disabled population. (See Am. Compl. ¶ 65 (stating that all ICF/MR residents should and “could live in more integrated community settings”); id. ¶ 66 (“State-operated ICFs/MR are not the most integrated settings appropriate to the needs of any individual resident of those facilities.”) (emphasis added).) In other words, Plaintiffs are asking this Court (via ruling) or the Commonwealth Defendants (via settlement) to assume that community care is good for all, to assume that all are somehow required by Olmstead or the ADA to choose
3

Case 1:09-cv-01182-JEJ Document 29 Filed 11/12/09 Page 8 of 41
community care (and have in fact done so), and to shift the burden onto individuals like the Intervenors to come forward and explain why they oppose the choice that Plaintiffs have made for them. The law, however, is quite the contrary. See Olmstead, 527 U.S. at 602 (“Nor is there any federal requirement that communitybased treatment be imposed on patients who do not desire it.”); 28 C.F.R. § 35.130(e)(1) (“Nothing in this part shall be construed to require an individual with a disability to accept an accommodation … which such individual chooses not to accept.”); Baldridge ex. rel. Stockley v. Clinton, 139 F.R.D. 119, 127 (E.D. Ark. 1991) (“The law is settled: the constitution does not require that habilitation of mentally retarded persons be provided in a community setting.”).
Although this action has just begun, and the case is not scheduled to go to trial until nearly a year from now, it is already clear that the Plaintiffs – the supposed and self-appointed class representatives – will litigate the case against the Intervenors’ interests, but in their name. Whether it is because Plaintiffs believe that community care is good for all (see Am. Compl. ¶¶ 65-66) or because they believe that the Intervenors do not know any better (see id. ¶ 70), the Plaintiffs have already decided to pursue a community-only litigation strategy.
By failing to oppose class certification, the Defendants have likewise failed to respect the non-homogenous nature of the putative class. Accordingly, the Springstead Intervenors move to intervene in this lawsuit in order to protect their
4

Case 1:09-cv-01182-JEJ Document 29 Filed 11/12/09 Page 9 of 41
own interests. They take no pleasure in delaying or complicating the named Plaintiffs’ efforts to live where they want; they simply have the well-grounded fear that allowing this lawsuit to proceed without their participation will result in their losing that same choice.
PROCEDURAL HISTORY Plaintiffs commenced this action by Summons and Complaint dated June 22, 2009 (Dkt. No. 1), as amended on July 14, 2009. (Dkt. No. 9.) On September 1, 2009, the Plaintiffs filed a motion for class certification, which was unopposed by the Defendants. (Dkt. Nos. 15, 16.) The next day, this Court granted that motion. (Dkt. No. 17.) On September 24, 2009, the Defendants filed a motion to dismiss the Amended Complaint (Dkt. Nos. 20, 21), which has been fully briefed and is currently pending. This motion followed.
STATEMENT OF QUESTIONS INVOLVED Whether the Springstead Intervenors are entitled to intervene in this matter pursuant to Rule 24 of the Federal Rules of Civil Procedure, where the Intervenors’ application is timely, where they have legally protectable interests that might be impaired by the resolution of this lawsuit without their involvement, and where their interests are not adequately represented by any party to the litigation.
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ARGUMENT I. THE SPRINGSTEAD INTERVENORS FULFILL THE
REQUIREMENTS FOR INTERVENTION AS OF RIGHT To intervene as a matter of right pursuant to Federal Rule of Civil Procedure
24(a)(2), “the prospective intervenor must establish that: (1) the application for intervention is timely; (2) the applicant has a sufficient interest in the litigation; (3) the interest may be affected or impaired, as a practical matter by the disposition of the action; and (4) the interest is not adequately represented by an existing party in the litigation.” In re Cmty. Bank of N. Va., 418 F.3d 277, 314 (3d Cir. 2005) (citation omitted); see also Kleissler v. U.S. Forest Serv., 157 F.3d 964, 969 (3d Cir. 1998). “Rule 24(a) is to be liberally construed in favor of intervention,” and any party who meets these criteria “must” be permitted to intervene. NLRB v. Frazier, 144 F.R.D. 650, 655 (D.N.J. 1992) (citations omitted); Fed. R. Civ. P. 24(a)(2); see also Amerimar Cherry Hill Assocs., L.P. v. U.S. Fidelity & Guar. Co., No. 90-3354, 1991 WL 137153, at *4 (E.D. Pa. July 22, 1991) (“Rule 24(a)(2) restricts the district court’s discretion by providing that an applicant shall be permitted to intervene if he or she satisfies the requirements of the Rule.”) (citing Harris v. Pernsley, 820 F.2d 592 (3d Cir. 1987)). As set out below, the Springstead Intervenors easily satisfy each of these elements.
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A. The Springstead Intervenors’ Application Is Timely. The current application is timely by any measure under Rule 24(a). In considering whether an application is timely, the factors the court considers are: “(1) the stage of the proceeding; (2) the prejudice that delay may cause the parties; and (3) the reason for the delay.” Cmty. Bank, 418 F.3d at 314 (citation omitted); see also Hyland v. Harrison, No. Civ.A. 05-162-JJF, 2006 WL 288247, at *4 (D. Del. Feb. 7, 2006) (citation omitted). Significantly, the Third Circuit has noted that “[s]ince in situations in which intervention is of right the would-be intervenor may be seriously harmed if he is not permitted to intervene, courts should be reluctant to dismiss a request for intervention as untimely.” Mountain Top Condo. Ass’n v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, 369 (3d Cir. 1995) (citing 7C Wright, Miller & Kane, Federal Practice & Procedure §1916 at 424 (1986)). Here, Plaintiffs filed their amended complaint on July 14, 2009, the Defendants moved to dismiss the complaint on September 24, 2009, and trial is scheduled to occur in October 2010. At this early point in the proceeding, where the Defendants have yet to file a responsive pleading, no discovery has taken place, and the Court has yet to rule on the Defendants’ Motion to Dismiss, neither Plaintiffs nor Defendants can plausibly argue that granting the instant application for intervention will cause any prejudice whatsoever. See, e.g., Thompson v.
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Horsham Twp., No. 07-5255, 2008 WL 2389258, at *2 (E.D. Pa. June 10, 2008) (motion to intervene filed more than two months after motion to dismiss had “caused no delay and no prejudice to the parties,” was filed at an “early stage of the proceedings,” and was timely); Mountain Top, 72 F.3d at 370 (“[T]he stage of the proceeding is inherently tied to the question of the prejudice the delay in intervention may cause to the parties already involved.”) (citation omitted). The Springstead Intervenors have filed their motion promptly and the motion is timely under Rule 24(a).
B. The Springstead Intervenors’ Right to Appropriate Care is Implicated by the Present Action.
The Springstead Intervenors have a concrete, protectable interest in their own care. More generally, they also have an interest in the continued availability of institutional care. These interests are both more than sufficient to meet Rule 24’s interest prong. With regard to the “interest” requirement for intervention, the Third Circuit has established that:
[T]he polestar for evaluating a claim for intervention is always whether the proposed intervenors’ interest is direct or remote. Due regard for efficient conduct of the litigation requires that intervenors should have an interest that is specific to them, is capable of definition, and will be directly affected in a substantially concrete fashion by the relief sought. Kleissler, 157 F.3d at 972.
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Intervenors are all residents of ICFs/MR who do not wish to be forced into community care. In this case, the Plaintiffs are attempting to redefine (or, more precisely, reduce) the care options available to the Intervenors in furtherance of the belief that all ICF/MR residents should and “could live in more integrated community settings.” (Am. Compl. ¶ 65; see id. ¶ 66 (“State-operated ICFs/MR are not the most integrated settings appropriate to the needs of any individual resident of those facilities.”) (emphasis added).) More insultingly, the Plaintiffs disparage institutional care as “unnecessary,” and suggest that those who oppose their ideology just do not know any better. (See Am. Compl. ¶ 70 (stating that “residents . . . or their families who might currently be opposed to discharge to the community may not be familiar with the types of community services and supports that could be provided”).)
While the Intervenors support the named Plaintiffs’ right to choose community care for themselves, the Springstead Intervenors no doubt have a legally protectable interest in their own care, as well as an interest in retaining a meaningful right to choose institutional options. The Intervenors also have an interest in opposing Plaintiffs’ claims that ICFs/MR “are not the most integrated settings appropriate to the needs of any individual resident of those facilities.” (Am. Compl. ¶ 66 (emphasis added).) See Prudential Prop. & Cas. Inc. Co. v. Leach, No. 03-6352, 2004 WL 1243763, at *1 (E.D. Pa. Jun. 7, 2004) (“an interest
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in the merits of the pending claims constitutes sufficient grounds to intervene as of
right”). Indeed, the Supreme Court’s decision in Olmstead, which is the genesis of
Plaintiffs’ claims, expressly rejected Plaintiffs’ one-size-fits-all mentality, and
recognized the need to provide an array of care options:
Unjustified isolation, we hold, is properly regarded as discrimination based on disability. But we recognize, as well, the States’ need to maintain a range of facilities for the care and treatment of persons with diverse mental disabilities.
527 U.S. at 597. The Olmstead Court also acknowledged the existence of the
specific interest raised by the Springstead Intervenors in this litigation – the right to
choose whether community care or institutional care is appropriate. See id. at 602
(“Nor is there any federal requirement that community-based treatment be imposed
on patients who do not desire it.”).
Moreover, contrary to the impression that the Plaintiffs’ advocacy groups try to foster, neither Olmstead nor the ADA requires individuals to “choose” 2
community-based care. See, e.g., 28 C.F.R. § 35.130(e)(1) (“Nothing in this part
2 As will become clearer as this case proceeds, there are likely to be significant factual issues specific to individual class members regarding how their “desire” to move into the community was expressed. As the Amended Complaint makes clear, often the expression of preferences or needs by a developmentally disabled individual takes the form of some non-verbal cue. (See, e.g. Am. Compl. ¶ 22.) While this is certainly not to suggest that named Plaintiffs and others do not, in fact, wish to choose community care, it does raise another reason not to take at face value the parties’ attempt to portray ICF/MR residents as a uniform, homogeneous class.
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shall be construed to require an individual with a disability to accept an accommodation … which such individual chooses not to accept.”); see also Baldridge, 139 F.R.D. at 127 (“The law is settled: the constitution does not require that habilitation of mentally retarded persons be provided in a community setting.”).
It is the interest of choice – the right of the individual and his or her guardian (not the Plaintiffs, not the Commonwealth) to choose the best care option in light of his or her own personal circumstances – that the Springstead Intervenors seek to protect by intervening. Because Plaintiffs’ action threatens that choice, the Springstead Intervenors’ interests are necessarily implicated. The fact that Plaintiffs seek Rule 23(b)(2) relief – from which there is no ability to opt-out – converts the present case from perhaps a policy disagreement into a dispute with concrete consequences. As commentators have noted, the interest requirement is:
one of inclusion rather than exclusion. If there is a direct substantial legally protectable interest in the proceedings, it is clear that this requirement of the rule is satisfied . . . . It surely is sufficient also if the judgment will have a binding effect on the would-be intervenor. 7C Wright, Miller & Kane, Federal Practice & Procedure, Civ. 3d § 1908 (2009). Viewed under the applicable standard, it is clear that the Springstead Intervenors have an interest in this action.
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C. The Springstead Intervenors’ Interests Are At Risk in the Present Action It is also beyond cavil that the Springstead Intervenors’ interests in their own care and in preserving choice may be impaired by this litigation. Quite simply, the Plaintiffs and Defendants – by ignoring commonality problems and agreeing to proceed on a class basis – will no doubt conduct this litigation in the manner which best serves each of their policy interests. There is nothing wrong with that per se; that is the nature of litigation. As a practical matter, however, individuals such as the Intervenors will be caught in the middle, and those policy decisions will be just as binding on them, despite their non-participation. See, e.g., Penn. Truck Lines, Inc. v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., No. 88-6968, 1990 WL 59305, at *6 (E.D. Pa. May 4, 1990) (finding impairment element met and noting that “[a] showing that a district court judgment might ‘practically disadvantage’ the applicant suffices to demonstrate such a tangible threat”) (citations omitted). Because neither the Plaintiffs nor the Commonwealth have seen fit to determine at the outset who “would not oppose” being forced out of ICFs/MR, those who meet the objective criteria of the class definition (such as the Intervenors) are going to be bound by any potential judgment or settlement in this case. Specifically, the Amended Complaint asks this Court to enter “appropriate declaratory relief and injunctive relief” on behalf of a class of persons who:
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(1) currently or in the future will reside in one of Pennsylvania’s state-operated intermediate care facilities for persons with mental retardation; (2) could reside in the community with appropriate services and supports; and (3) do not or would not oppose community placement. (Class Certification Order (Dkt. No. 17).) The “do not or would not oppose” limitation – as a practical matter – does not alleviate the threat of harm. The Plaintiffs seek “appropriate” injunctive relief pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, “which do[es] not provide the right to opt out.” In re Real Estate Title & Settlement Servs. Antitrust Litig., 869 F.2d 760, 763 (3d Cir. 1989). Neither party, however, specifies what exactly is the “appropriate” relief for the class (all of whom have unique circumstances, varied physical and medical conditions, and different needs). Especially where, as here, the class is defined in part by the subjective (and as of yet unexpressed) preferences of the class members, there is no way for the Springstead Intervenors (who are class members by the objective standards) to protect their own interests except to intervene. See Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281, 1310 (1976) (explaining that public law litigation has brought about an increased capacity for affecting the rights of those not party to the suit, and noting that at the settlement or decree stage “if the decree is to be quasi[-]negotiated and party participation is to
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be relied upon to ensure its viability, representation at the bargaining table assumes very great importance”).
Moreover, this backwards procedure (i.e., seeking relief before the class is precisely defined) is a conscious, strategic choice by Plaintiffs to force policy changes without the inconvenient matter of determining how many favor that policy. Indeed, any ambiguity regarding the Plaintiffs’ intentions is clarified where, with regard to the numerosity of the proposed class, they simply cite to the fact that “there are approximately 1,272 individuals who reside in Pennsylvania’s five state-operated ICFs/MR.” (Am. Compl. ¶ 16; see also Pl. Opp. Br. at 10 n.6 (“[T]he Plaintiffs in this case are representing a now-certified class of over 1,200 individuals.”).) In other words, Plaintiffs take the position – a position directly contrary to the Springstead Intervenors’ interests – that all persons in ICFs/MR should be in community care. Plaintiffs’ position is further clarified by the Amended Complaint, which provides that “[s]tate-operated ICFs/MR are not the most integrated settings appropriate to the needs of any individual resident of those facilities.” (Id. ¶ 66 (emphasis added).)
The outcome of this litigation could have tragic effects on those who rely upon institutional care, and the Intervenors will not sit idly by while their so-called “advocates” attempt to strike the fatal blow to ICF/MR care in this Commonwealth. Notably, this problem was foreseen when Olmstead was handed
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down; Justice Kennedy’s concurring opinion was prescient in recognizing that
ideological goals such as those of Plaintiffs’ counsel may have disastrous effects if
applied in a Procrustean fashion to the entire developmentally disabled
community:
It would be unreasonable, it would be a tragic event, then, were the Americans with Disabilities Act . . . 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.
Olmstead, 527 U.S. at 610 (Kennedy, J., concurring in judgment).
Indeed, other courts addressing almost precisely the same issues have
recognized the risks inherent in ignoring the stark differences among the class
members until the end of the litigation. For example, in Ligas v. Maram, No. 1:05cv-04331 (N.D. Ill. March 7, 2006)3 the district court certified a class very similar
to this one, consisting of:
[a]ll persons in Illinois with disabilities who:
(1) have mental retardation and/or other developmental disabilities and who qualify for long-term care services;
(2) with appropriate supports and services, could live in the community and who would not oppose community placement; and
(3) either are institutionalized in private [Intermediate Care Facilities for the Developmentally Disabled] with nine or more residents or are living in a home-based
3 A copy of the class certification order in Ligas is attached hereto as Exhibit A.
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setting and are at risk for institutionalization because of their need for services. Id. After four years of litigation, the district court held a fairness hearing in
connection with a proposed consent decree jointly supported by the plaintiffs and
state defendants. As explained by the district court:
Approximately 240 people attended the fairness hearing, and thirty-four individual class members or their legal guardians spoke at the hearing. Many more objectors were represented at the hearing by counsel. A common theme among the objectors was the concern that many developmentally disabled individuals, who are within the class definition, would be adversely affected by provisions of the Proposed Consent Decree even though the individual neither met the Olmstead criteria nor desired placement in a community-based setting.
Ligas v. Maram, No. 1:05-cv-04331 (N.D. Ill. July 7, 2009) (class decertification order).4 Ultimately, the district court concluded that, as a practical matter, “the
class definition fail[ed] to restrict the class to . . . [those who] desire[] community
placement” and that “sufficient commonality does not exist among the highly
specialized needs and desires of the class members and their legal guardians.” Id.
at 2. It is those “highly specialized” needs that may be impaired by the overly
broad and rigid approach advocated by Plaintiffs. Allowing intervention now – as
opposed to collateral attack later – will permit the Intervenors to protect their rights
in an expeditious fashion without needlessly delaying or complicating the
4 A copy of the class decertification order in Ligas is attached hereto as Exhibit B.
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litigation. See Kleissler, 157 F.3d at 970 (noting Third Circuit’s “policy preference which, as a matter of judicial economy, favors intervention over subsequent collateral attacks”) (citation omitted).
D. The Springstead Intervenors’ Rights Are Not Adequately Represented by Any Party In the Existing Litigation.
Finally, it is beyond dispute that neither party is adequately representing the Springstead Intervenors’ interests. Under the fourth prong of the test for intervention as of right, a party seeking to intervene must demonstrate that “the existing parties cannot adequately protect the intervener’s interest.” Thompson, 2008 WL 2389258, at *3. This element is satisfied “if the applicant shows that representation of his interest ‘may be’ inadequate; and the burden of making that showing should be treated as minimal.” Mountain Top, 72 F.3d at 368 (quoting Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)). A prospective intervenor can show inadequacy of representation where, among other things, “the interest of the applicant so diverges from those of the representative party that the representative party cannot devote proper attention to the applicant’s interest.” United States v. Alcan Aluminum, Inc., 25 F.3d 1174, 1186 n.15 (3d Cir. 1994) (citation omitted); Doe v. Allentown Sch. Dist., No. 06-cv-1926, 2009 WL 2058726, at *4 (E.D. Pa. July 10, 2009).
Here, not only do the Springstead Intervenors’ interests diverge from those of Plaintiffs, but Plaintiffs are, in fact, openly antagonistic of the Intervenors’
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wishes. Quite simply, the Springstead Intervenors do not desire the relief that is at the core of Plaintiffs’ suit; rather, they seek to protect their rights to appropriate treatment, which, in many instances, will be in an institutional setting. That view is anathema to the Plaintiffs. The belief that each person with developmental disabilities should be treated as an individual is not a point that the Springstead Intervenors should have to argue with the advocate that claims to speak for them. In any event, the record to date makes clear that the Springstead Intervenors will need to speak for themselves.
Nor do the Defendants adequately represent the Springstead Intervenors’ interests. As noted by the Kleissler court, “when an agency’s views are necessarily colored by its view of the public welfare rather than the more parochial views of a proposed intervenor whose interest is personal to it, the burden [of showing inadequate representation] is comparatively light.” Kleissler, 157 F.3d at 972 (citation omitted). Indeed, governmental entities often have “numerous complex and conflicting interests” that cause personal interests to “become lost in the thicket of sometimes inconsistent governmental policies.” Id. at 973-74; see also Thompson, 2008 WL 2389258, at *3 (town had “broader and different interests concerning the matters raised in [the] lawsuit than the [intervenors]”). Here, Defendants acquiesce in Plaintiffs’ assertion that community placement is appropriate for all persons residing in the state-operated ICFs/MR. (Def. Mot. to
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Dismiss at 6 (“defendants have the objective of community placement as soon as fiscally feasible”).) The Springstead Intervenors disagree, and reject the Defendants’ apparent contention that it is only a matter of time and money at issue in this case. See Olmstead, 527 U.S. at 605 (recognizing that the “most integrated setting” possible “may be in an institution”). More troubling, the Defendants decided not to oppose Plaintiffs’ class certification motion, ignoring the fact that the class definition impermissibly relies upon a subjective, individualized assessment of whether the potential class member opposes community placement. Phila. Recycling & Transfer Station, Inc. v. City of Phila., No. 95-4597, 1995 WL 517644, at *2 (E.D. Pa. Aug. 29, 1995) (granting intervention, and finding that municipality did not adequately represent intervenor’s interests where it might “reach some accommodation with Plaintiff that may adversely affect” the interests of the intervenor). Defendants’ view of the “public welfare” squarely conflicts with the Springstead Intervenors’ personal interests, and Defendants thus do not adequately represent the Springstead Intervenors. II. IN THE ALTERNATIVE, THE SPRINGSTEAD INTERVENORS
SHOULD BE ALLOWED TO INTERVENE BY PERMISSION Alternatively, should this Court deny intervention as of right, the Springstead Intervenors respectfully request that this Court allow them to intervene permissively, pursuant to Fed. R. Civ. P. 24(b). “Permissive intervention is available upon timely application ‘when an applicant’s claim or defense and the
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main action have a question of law or fact in common.’” Brody by and Through Sugzdinis v. Spang, 957 F.2d 1108, 1115 (3d Cir. 1992) (quoting Fed. R. Civ. P. 24(b)). Whether to grant such permission is entirely within the district court’s discretion. Cont’l Cas. Co. v. SSM Group, Inc., No. 94-7789, 1995 WL 422780, at *5 (E.D. Pa. July 13, 1995) (citation omitted).
In deciding whether to grant permissive intervention, the potential commonality of the intervenors’ “claim or defense” with the pending action have been broadly defined. See id. at *5 (citation omitted). That requirement is easily met here. Here, the Intervenors have an interest in many of the questions of law or fact arising from the parties’ claims and defenses, including, but not limited to: (1) whether class action treatment is appropriate; (2) whether community care is appropriate for all class members; and (3) whether community care is, in fact, desired by all class members.
Finally, the court may also analyze whether allowing permissive intervention will unduly delay the litigation. See Cont’l Cas. Co., 1995 WL 422780, at *6. This action is not scheduled to go to trial until October 2010, and no discovery has taken place. Indeed, Defendants have not even filed a responsive pleading. Accordingly, the inclusion of the Intervenors would cause no delay or undue hardship. See Youtie v. Macy’s Retail Holding, Inc., No. 07-3182, 2009 WL 2835156, at *6 (E.D. Pa. Aug. 31, 2009).
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CONCLUSION For the foregoing reasons, the Springstead Intervenors respectfully request that the Court grant their motion for intervention pursuant to Rule 24(a)(2) of the Federal Rules of Civil Procedure. In the alternative, the Springstead Intervenors respectfully request that the Court grant permission to intervene pursuant to Rule 24(b) of the Federal Rules of Civil Procedure.

Dated: Philadelphia, Pennsylvania November 10, 2009
John
1600 Philadelphia, (215) (215)
Of Counsel:
Michael Rato Sarah M. Goldstein David F. Bacon IV SIDLEY AUSTIN LLP 787 Seventh Avenue New York, New York 10019 (212) 839-5300 (212) 839-5599 (fax)

VAIRA & RILEY, P.C.
By: /s/ John E. Riley E. Riley
PA ID# 22504 William J. Murray, Jr.
PA ID# 73917 Market Street, Suite 2650 Pennsylvania 19103 789-9405 751-9420 (fax)
Attorneys for Proposed Intervenors

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CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.8(b)(2) I certify under penalty of perjury that Proposed Intervenors’ Memorandum
of Law in Support of Motion for Intervention complies with Local Rule 7.8(b)(2) because it contains 4,803 words (excluding the cover page, Table of Contents, Table of Authorities, and signature block) according to the “word count” feature of the processing system used to prepare the Memorandum of Law (Microsoft Word 2003).

/s/

John E. Riley

John

E. Riley

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EXHIBIT A

CCaassee11::0059--ccvv--0041313812-JEDJocDumoceunmt 8e6nt 29FilFeidle0d31/017/1/20/0096 PaPgaege281ooff4110

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

STANLEY LIGAS, by his sister and next friend, )

Gina Foster, et al., on behalf of themselves and all )

others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

BARRY S. MARAM, in his official capacity as )

Director of the Illinois Department of Healthcare )

and Family Services, et al.,

)

)

Defendants.

)

No. 05 C 4331

MEMORANDUM OPINION AND ORDER REGARDING CLASS CERTIFICATION

JAMES F. HOLDERMAN, District Judge:

Stanley Ligas and eight other individually named plaintiffs (“named plaintiffs”) filed a

renewed motion for class certification under Federal Rule of Civil Procedure 23(b)(2) against

Illinois officials (“defendants”)) who administer state programs that provide long-term care

services for people with developmental disabilities.1 (Dkt. No. 61.) For the reasons stated

below, the renewed class certification motion under Rule 23(b)(2) is granted.

BACKGROUND

The named plaintiffs filed a complaint individually and on behalf of similarly situated

individuals alleging that the defendants’ failure to provide the plaintiffs with the option of long-

term care services in the most integrated setting appropriate for their needs violates Title II of

1Plaintiffs’ first motion for class certification, filed on August 8, 2005, was dismissed as moot, after parties agreed to have the court first chose to address three petitions to intervene.
1

CCaassee11::0059--ccvv--0041313812-JEDJocDumoceunmt 8e6nt 29FilFeidle0d31/017/1/20/0096 PaPgaege292ooff4110
Americans with Disabilities Act, see 42 U.S.C. § 12111 et seq., Section 504 of the Rehabilitation Act of 1973, see 29 U.S.C. § 794, and Title XIX of the Social Security Act, see 42 U.S.C. § 1396 et seq. The plaintiffs seek as injunctive relief for the defendants to give eligible developmentally disabled individuals the option of being placed in community settings with appropriate services and support rather than in institutions, such as Medicaid-certified long-term care placements serving those with developmental disabilities called intermediate care facilities (“ICF-DD”). The plaintiffs’ lawsuit relies heavily on Olmstead v. L.C., 527 U.S. 581, 587 (1999), which held that developmentally disabled individuals should be placed in community settings rather than institutions when a state’s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account available state resources and the needs of others with disabilities. The Supreme Court explained that a state may rely on the reasonable assessments of its own professionals in determining whether an individual meets the essential eligibility requirements for community placement. Id. at 602.
The named plaintiffs allege in the complaint that they satisfy Illinois’s eligibility requirements for community placement: (1) they have been found eligible for Medicaid services, see 89 Ill. Admin. Code § 140.642(b); (2) they either qualify for or have been recommended for community placement, and six of the nine plaintiffs specifically allege that a state assigned preadmission screening and resident review agent (“PAS agent”) determined that they are capable of living in a community-based setting, see 59 Ill. Admin. Code § 120.140; (3) and they or their guardians have requested to be placed in community settings or Community-Integrated Living
2

CCaassee11::0059--ccvv--0041313812-JEDJocDumoceunmt 8e6nt 29FilFeidle0d31/017/1/20/0096 PaPgaege303ooff4110
Arrangements (“CILA”). The crux of the named plaintiffs’ allegations is that all the named plaintiffs could meet, and most do meet, Illinois’s eligibility requirements for living in a community setting, yet the state has refused to place the plaintiffs in such a setting.
The proposed class that the named plaintiffs additionally seek to certify would consist of: “All persons in Illinois with disabilities who (1) have mental retardation and/or other developmental disabilities and who qualify for long-term care services; (2) with appropriate supports and services, could live in the community and who would not oppose community placement; and (3) either are institutionalized in private ICF-DDs with nine or more residents or are living in a home-based setting and are at risk for institutionalization because of their need for services.” (Pl. Renewed Mot. for Class Cert. at 1.)
LEGAL STANDARDS As prerequisites for certification, the potential class must satisfy the following criteria: (1) numerosity; (2) commonality of facts and law; (3) typicality between the class claims and those of the named parties; and (4) adequacy of the representation by the named parties and class counsel. Fed. R. Civ. P. 23(a). Failure of the potential class to satisfy any one of these prerequisite elements precludes class certification. Retired Chicago Police Assoc. v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993); Rahim v. Sheahan, 2001 WL 1263493, *9 (N.D. Ill. Oct. 19, 2001). In addition, because the plaintiffs are seeking to certify a class under Rule 23(b)(2), they also must establish that “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed. R. Civ. P. 23(b)(2). In deciding whether the party who is seeking class certification has met its burden of
3

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demonstrating that certification is appropriate, the court should make whatever factual and legal inquiries are necessary under Rule 23. Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001). The decision to certify a class does not depend on the strengths or weaknesses of the asserted claims, but instead on whether the potential class satisfies the requirements under Rule 23. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974).
ANALYSIS A. Commonality: The defendants first challenge the potential class’s ability to satisfy the commonality requirement. The defendants argue that, as a result of the broad class definition, common issues of fact and law do not predominate. According to the defendants, their alleged conduct does not apply to the entire proposed class in that “potential class members might not be entitled to all or any of the requested relief” under the defendants’ interpretation of the proposed class definition. (Defs. Resp. at 8.) The defendants also argue that the broad class definition would be inclusive of factual circumstances that vary too broadly among class members individuals with too diverse of factual circumstances. To exemplify this point, the defendants note that the proposed class would include as potential class members those who live at home “and are at risk for institutionalization because of their need for services.” (Pl. Renewed Mot. for Class Cert. at 1.) Defendants argue that this class definition would encompass “all developmentally disabled persons living at home because all such persons conceivably would be ‘at risk.’” (Defs. Resp. at 9.) To some extent, the defendants may misunderstand the class definition. In arguing against commonality, the defendants seem to overlook the limitation on the class definition that
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all members “qualify for long-term care” and “could live in the community.” For example, the defendants’ concern that the class would encompass all developmentally disabled living at home is resolved by the class requirement that members “could live in the community.” (Pl. Renewed Mot. for Class Cert. at 1.)
Whether the proposed class satisfies the commonality requirement, however, is a close question. See Wallace v. Chicago Housing Auth., 224 F.R.D. 420, 423 (N.D. Ill. 2004) (courts have broad discretion in deciding whether to certify a class and should err in favor of maintaining a class action.) A defendant’s standardized conduct toward proposed class members, such as a generalized policy that affects all class members in the same way, has been considered sufficient to satisfy commonality. Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998); see Gen. Tele. Co. of the SW v. Falcon, 457 U.S. 147, 159 n.15 (1982). Where a defendant’s standardized conduct is at issue, this court does not require that the putative class members all suffer the same injury, but rather the uniformity of the defendant’s conduct toward the potential members and the plaintiffs’ legal theory. See Rosario v. Livaditis, 963 F.3d 1013, 1018 (7th Cir. 1992).
In this case, the proposed class seeks to require the defendants to enact standardized policies regarding the community placement of eligible developmentally disabled individuals. The proposed class challenges the defendants’ failure to provide developmentally disabled individuals with information about the option of community placement, systematically evaluate developmentally disabled individuals that qualify for long-term services to determine whether they are eligible for community placement, place those who are eligible in the community, and maintain a wait list for community placement. The fact that the named plaintiffs and some
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proposed class members may have learned about the option of community placement or already have been assessed qualified for community placement by a PAS agent relates to the level of the injury suffered and not whether the defendants’ conduct was sufficient standardized. See Rosario, 963 F.3d at 1018. The defendants have acted, or have failed to act, uniformly toward the proposed class based on their policies and lack of policies in place, and that is what the proposed class’s legal claims challenge. This court determines that the proposed class is challenging the defendants’ failure to enact policies regarding community placement, and in assessing this standardized conduct, common questions of law and fact predominate.
B. Typicality: The commonality discussion also resolves most of the defendants’ challenges to class certification based on the typicality requirement. See Falcon, 457 U.S. at 158 n.13 (“The commonality and typicality requirements of Rule 23(a) tend to merge.”) Related to their argument against commonality, the defendants contend that the breadth of the class definition results in too many legal and factual differences between the named plaintiffs and the potential class members. The defendants assert that, consequently, a showing that the named plaintiffs are entitled to relief would not necessarily prove that the potential class was also so entitled. The claims of the named plaintiffs and the proposed class, however, only must share the “same essential characteristics”; factual differences may still exist. Retired Chicago Police Ass’n, 7 F.3d at 597 (internal citations and quotations omitted); see Chapman v. Worldwide Asset Mgmt, LLC, No. 04-C-7625, 2171168, *3 (N.D. Ill. Aug. 30, 2005). That is the case here. The named plaintiffs, like the potential class members, seek to have the defendants establish a policy of informing individuals about community placement and of evaluating those interested in the
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placement, regardless of whether they each have learned about community services or have been assessed “qualified” by a PAS agent. By definition, the class would be necessarily entitled to the same relief as the named plaintiffs if the named plaintiffs were to prove their case. The class members all qualify for long-term services, “could live in the community,” and desire to do so. Part of the relief sought by the class is for the defendants to systematically evaluate those qualifying for long-term care who wish to be placed in the community. At this stage in the litigation, this court may presume based on the pleadings that a PAS agent would find qualified for community services the proposed class because by definition the class members qualify for long-term services and “could live in the community.” Fed. R. Civ. P. 23(c)(1)(C); see Morse v. Bankers Life & Cas. Co and PCS, Inc., No. 99-C-0193, 2000 WL 246245, *4 (N.D. Ill. Feb. 24, 2000).
One issue regarding typicality remains. Whether the three named plaintiffs’, two of whom—David Childers and Tiffany McFadden—have been moved to CILAs and one of whom—Alex Tyner—now lives in a six-bed ICF-DD since the filing of the complaint, various residency circumstances destroy typicality. As a result of their moves, the three plaintiffs’ claims for injunctive relief to live in a more integrated setting are moot. In re Resource Tech. Corp., 430 F.3d 884, 886 (7th Cir. 2005) (case is moot when no further judicial relief is possible). The plaintiffs contend that these three plaintiffs may remain class representatives because their moves in residences occurred in December 2005, after the filing of the first motion for class certification on August 8, 2005. That motion, however, was dismissed as moot. The relevant date is the filing of the pending motion for class certification on January 10, 2005, after the three plaintiffs were moved to the CILAs and the six-bed ICF-DD in December 2005. See
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Fields v. Maram, No. 04-C-0174, 2004 WL 1879997, *9 (N.D. Ill. Aug. 17, 2004) (certification relates back to the time that the class certification motion was filed). The three plaintiffs’ claims do not relate back to the filing of the motion for class certification. Because their claims became moot prior to the filing of the motion for class certification, this court determines that David Childers, Tiffany McFadden, and Alex Tyner do not have claims typical of the class and are not adequate class representatives in this litigation. See Gates v. Towery, 430 F.3d 429, 430 (7th Cir. 2005). The dismissing of David Childers, Tiffany McFadden, and Alex Tyner as named plaintiffs does not, however, affect class certification. Six adequate class representatives whose claims are not moot remain. See Robinson v. Sheriff of Cook County, 167 F.3d 1155, 1157 (7th Cir. 1999) (suitability of new class representative must be determined independently of former proposed class representative found to be inadequate); Cowen v. Bank United of Texas, FSB, 70 F.3d 937, 941 (7th 1995) (disqualification of the named plaintiff moots question whether to certify class unless lawyers for class find another representative). The proposed class satisfies the requirements of typicality (and, for that matter, adequacy, a ground not challenged by the defendants).
C. Indefiniteness: The defendants also express concern that the proposed class is not sufficiently definite and so this court would have to engage in individual determinations to decide class membership. The individual determinations identified by the defendants are whether an individual is at risk for institutionalization because of their need for services, qualify for long-term care services, and could live in the community with appropriate support and services. As class is sufficiently definite if its membership may be determined by an objective criteria. See Wallace, 224 F.R.D.
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at 425. The plaintiffs represent that they “do not ask this Court to make those determinations but rather enjoin defendants to do so.” (Pl. Reply at 9.) In essence, the plaintiffs are willing to have the defendants make these determinations based on reasonable assessments from their own state treatment professionals in accordance with Olmstead, 527 U.S. 581. Because the defendants would be evaluating based on their own criteria whether a potential class member would meet the state’s requirements and thus the class definition, court could order the defendants to engage in individual determinations should any relief be granted and not do so itself. See Fields, 2004 WL 1879997 at *7 n.8.
D. Unchallenged Rule 23 Requirements: The defendants appropriately do not raise objections to the other requirements of Rule 23(a), numerosity and adequacy, or of Rule 23(b)(2). With regard to the numerosity requirement, plaintiffs estimate that 6000 individuals live in ICF-DDs. Although not all of these individuals could live or wish to live in the community, this court may infer based on common sense that there are enough individuals living in ICF-DDs, as well as those living at home, who qualify for long-term care, could live in the community, and want to do so as to make joinder impractical. See Mirfasihi v. Fleet Mortgage Corp., No. 01-C722, 2005 WL 1950386, *12 (N.D. Ill. Aug. 11, 2005). As for adequacy, no reason has been brought to this court’s attention that would make this court question the remaining representatives’ and plaintiffs’ attorneys’ abilities to adequately represent the class. Finally, the proposed class fits the definition for certification under Rule 23(b)(2), in that the defendants allegedly have acted or refused to act on grounds generally applicable to the class and appropriate for injunctive relief. Fed. R. Civ. P. 23(b)(2).
CONCLUSION
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Accordingly, the plaintiffs’ renewed motion for class certification under Federal Rule of Civil Procedure 23(b)(2) for injunctive relief (Dkt. No. 61) is granted. This court certifies as class representatives Stanley Ligas, by his sister and next friend, Gina Foster; Lorene Bierman, by her guardians, Darlene and Joseph Bierman; Isaiah Fair, by his guardian Lutricia Fair; Adam Kulig, by his guardian, Norb Kulig; Jamie McElroy, by his guardian, Patricia McElroy; and Jennifer Wilson, by her guardians, Nancy and Richard Wilson. This court appoints the plaintiffs’ counsel as class counsel. The class is defined as:
A class for injunctive relief consisting of all persons in Illinois with disabilities who (1) have mental retardation and/or other developmental disabilities and who qualify for longterm care services; (2) with appropriate supports and services, could live in the community and who would not oppose community placement; and (3) either are institutionalized in private ICF-DDs with nine or more residents or are living in a homebased setting and are at risk for institutionalization because of their need for services. Parties are to submit a revised Form 35 on or before 3/20/06. Counsel are requested to submit a courtesy copy of the Form 35 to Chambers on the day of filing. This case is set for a report on status and entry of a scheduling order at 9:00 a.m. on 4/4/06. The status report set for 3/30/06 is vacated.
ENTER:

DATE: March 7, 2006

__________________________________ JAMES F. HOLDERMAN United States District Judge

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EXHIBIT B

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 Case 1:09-cv-01182-JEJ Document 34 Filed 11/23/09 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

____________________________________

:

FRANKLIN BENJAMIN, by and through :

his next friend, Andreé Yock; RICHARD :

GROGG and FRANK EDGETT, by and : Filed via ECF System

through their next friend, Joyce McCarthy; :

SYLVIA BALDWIN, by and through her : Civil Action No. 1:09-cv-1182-JEJ

next friend, Shirl Meyers; ANTHONY :

BEARD, by and through his next friend, : Class Action

Nicole Turman, on behalf of themselves :

and all others similarly situated,

: Complaint Filed June 22, 2009

:

Plaintiffs,

: Judge Jones

:

v.

:

DEPARTMENT OF PUBLIC WELFARE :

OF THE COMMONWEALTH OF

:

PENNSYLVANIA and ESTELLE B.

:

RICHMAN, in her official capacity as

:

Secretary of Public Welfare of the

:

Commonwealth of Pennsylvania,

:

____________________________________:

PLAINTIFFS' BRIEF IN OPPOSITION TO MOTION FOR INTERENTION PURSUANT TO FED. R. CIV. P. 24

Robert W. Meek Mark J. Murphy Robin Resnick Disability Rights Network of PA 1315 Walnut Street, Suite 400 Philadelphia, PA 19107-4798 215-238-8070

Stephen F. Gold 1709 Benjamin Franklin Pkwy. 2nd Floor Philadelphia, PA 19103 215-627-7100

Counsel for Plaintiffs and the Class

Case 1:09-cv-01182-JEJ Document 34 Filed 11/23/09 Page 2 of 25

TABLE OF CONTENTS

Table of Citations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Counterstatement of Factual and Procedural History . . . . . . . . . . . . . . . . . . . . 1

Statement of the Questions Involved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. The Movants Have Failed to Meet Their Burden to Prove that They Have a Right to Intervene Under Rule 24(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A.

Since They Are Explicitly Excluded from the

Class Definition, the Movants Have No

Significantly Protectible Interest . . . . . . . . . . . . . . . . . . . . 5

B. Even Assuming that the Movants Have a Significantly Protectible Interest, the Scope of the Class Definition and Lawsuit Assures that Their Interest Is Not in Jeopardy . . . . . . . . . . . . . . . . . 8

C.

The Movants' Rights Are Adequately

Represented by the Existing Parties in

the Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

II. Permissive Intervention Is Not Justified . . . . . . . . . . . . . . . . . . . . 17

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

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TABLE OF CITATIONS
Cases
Brody ex rel. Sugzdinis v. Spang, 957 F.2d 1108 (3d Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Churchill v. Star Enterprises, 183 F.3d 184 (3d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
CSX Transp. v. City of Philadelphia, Civil Action No. 04-cv-5023, 2005 WL 1677975 . . . . . . . . . . . . . . . . 16 (E.D. Pa. July 15, 2005)
EEOC v. Waffle House, 534 U.S. 279 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Estate of Kelly ex rel. Gafni v. Multiethnic Behavioral Health, Inc., Civil Action No. 05-3700, 2009 WL 2902350 (E.D. Pa. Sept. 9, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17
Flemming ex rel. Estate of Flemming v. Air Sunshine, Inc., 311 F.3d 282 (3d Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Hoots v. Pennsylvania, 672 F.2d 1133 (3d Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Kleissler v. United States Forest Service, 157 F.3d 964 (3d Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6
Liberty Mutual Ins. Co. v. Treesdale, Inc., 419 F.3d 216 (3d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 8, 9, 17
Ligas ex rel. Foster v. Maram, 478 F.3d 771 (7th Cir. 2007) . . . . . . . . . . . . . . . . 9, 10, 11, 15, 16, 18, 19
Ligas ex rel. Foster v. Maram, Civil Action No. 1:05-cv-4331, 2006 WL 644474 (N.D. Ill. Mar. 7, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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Ligas ex rel. Foster v. Maram, Civil Action No. 1:05-cv-4331, slip op. (N.D. Ill. July 7, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Olmstead v. L.C., 527 U.S. 581 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 15, 18, 19
United States v. City of Philadelphia, 798 F.2d 81 (3d Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Statutes, Regulations, and Rules Fed. R. Civ. P. 23(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 12 Fed. R. Civ. P. 23(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 17 Fed. R. Civ. P. 24(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Fed. R. Civ. P. 24(b)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Fed. R. Civ. P. 24(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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COUNTERSTATEMENT OF FACTUAL AND PROCEDURAL BACKGROUND Plaintiffs are individuals with mental retardation who are institutionalized in intermediate care facilities for persons with mental retardation (ICFs/MR) operated by Defendants Department of Public Welfare and Estelle B. Richman (collectively, DPW). Am. Compl. && 1, 8-14, 55. Pla intiffs, who are appropriate for discharge to the community and not opposed to di scharge, filed this lawsuit in June 2009 t o challenge DPW=s failure to offer them appr opriate community supports and services. See id. && 2, 4, 23-26, 29-32, 35-37, 41-43, 46-49, 72, 86, 92. There currently are approximately 1,272 individuals residing in fi ve stateoperated ICFs/MR in Penns ylvania. Am. Com pl. && 54-55. All of these individuals, with appropriate services and suppo rts, could li ve in m ore integrated community settings. Id. & 65. Many, although not all, residents of state-operated ICFs/MR and their families are not opposed to discharge, provided that appropriate and adequate community supports and services are offered. See id. &¶ 69, 70. Some residents or fam ily members who may currently be oppo sed to discharge might change their minds if they were provided with information about the types of community services and supports that would be made available to them. Id. ¶ 70. Indeed, many form er residents who had lived for years in now-closed state ICFs/MR and who were di scharged by DPW to small, co mmunity-based placements over their or their fam ily members' initial opposition now are happy

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with the community supports and services they receive, as are their famili es. Id. ¶ 71.
Plaintiffs allege that DPW violat es the inte gration mandates of th e Americans with Disabilities Act (ADA) and Rehabilitation Act (RA) by "unnecessarily segregating Plaintiffs and putative class members in institutions, by failing to offer them mental retardation se rvices in the comm unity, ... and by failing to provide such services to Plaintiffs and those putative class members who are not opposed to discharge." Am. Com pl. ¶¶ 86, 92 (em phasis added). Plaintiffs seek declaratory and injunctive relief, id. ¶ 94, on behalf of a cla ss of similarly situated individuals. Id.
Following briefing by the Plaintiffs, th e Court issued an Order that certified this case pursuant to Federal Rule of Civil Procedure 23(b)(2) to proceed on behalf of the following class:
All persons who: (1) currently or in the future will reside in one of Pennsylva nia's state-operated intermediate care facilities for persons with ment al retardation; (2) could reside in the co mmunity with appropriate services and supports; and (3) do not or would not oppose community placement. Order dated Sept. 2, 2009 at 4 (emphasis added) (Docket # 17).
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Although DPW did not oppose Plaintiffs' class certification m otion, it certainly has not conceded defeat in t his case. To the contrary, DPW filed a Motion to Dismiss the Amended Complaint in its entirety.1
Nine residents of the state ICF/MR in stitutions (Movants) have now filed a Motion for Intervention to intervene on the side of DPW. These residents, through their guardians or next friends, state th at they are opposed to discharge from the ICFs/MR. The Movants assert no claim s against DPW nor does their Response to Plaintiffs' Amended Com plaint assert any count erclaims against the Plaintiffs. Instead, they apparently seek to have th is Court decertify the Class and to require the Plaintiffs to proceed only on an individual basis. Movants' Response at 33.
The Movants fail to satisfy the criteria for intervention as a matter of right. Since the Movants are opposed to discharge, they are not m embers of the Class. By definition, then, they have no direct, sp ecific interest that is threatened by this litigation. Any interest th e Movants m ight have already is represented by the existing parties. In additi on, permissive intervention would be inappropriate. The Movants have asserted neither claims nor defenses, and their "interest" in the scope of the class has nothing in common with this case since the Class has already been defined to exclude all pe rsons, like Movants, who are opposed to comm unity
1 Given the co mplexity of this case, th e parties have agreed to proceed with discovery while the Motion to Dismiss is pending.
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placement. Moreover, intervention woul d prejudice absent class mem bers, who would be deprived of the right to m ake an informed choice about comm unity placement, and would potentially prejudice even the named Plaintiffs.
STATEMENT OF THE QUESTIONS INVOLVED 1. Do the Movants have a right to intervene in this lawsuit when they are explicitly excluded from the class definitio n and, thus, have no direct, specific interest which can be jeopardized by the litigation and w hen any interest they might have already is represented by existing parties? 2. Should the Court exercise its di scretion to permit the Movants to intervene when the class definition' s exclusion of persons opposed to comm unity placement eviscerates any potential shared questions of law and fact between the Movants' purported "interests" and this lawsuit and when intervention would be highly prejudicial to absent class members and potentially the named Plaintiffs?
ARGUMENT I. THE MOVANTS HAVE FAILED TO MEET THEIR BURDEN TO PROVE THAT THEY HAVE A RIGHT TO
INTERVENE UNDER RULE UNDER RULE 24(a). A person who seeks to interve ne as a matter of right under Federal Rule of Civil Procedure 24(a) must establish:
1) a tim ely application for leave to intervene, 2) a sufficient interest in the underl ying litigation, 3) a threat that the interest will be im paired or affected by the disposition of the underlying action, and 4) tha t the
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existing parties to the action do not adequately represent the prospective intervenors' interests. Liberty Mutual Ins. Co. v. T reesdale, Inc., 419 F.3d 216, 220 (3d Cir. 2005) . "‘Each of these requirem ents must be met to intervene as of right.’" Id. (citations omitted). Although the Motion is not untimely,2 it fails to satisfy every other criterion for intervention. Despite the Movants' hyperbolic and mostly irrelevant assertions about the Plaintiffs and their alleged sub rosa "agenda," the Movants have no direct, legally protectible interest that is jeopardized by this litigation since they are excluded from the Class. Even assuming arguendo that the Movants' interests suffice to satisfy the second and third prongs of the test, those interests are am ply represented by the existing parties. A. Since They Are Explicitly Excluded From the Class Definition, the Movants Have No Significantly Protectible Interest. "To justify intervention as of right, the applicant m ust have an interest ‘relating to the property or t ransaction which is the subject of the action’ that is ‘significantly protectible.’" Kleissler v. United States Forest Service , 157 F.3d 964, 969 (3d Cir. 1998) . "[T]he polestar for evaluating a clai m for intervention is whether the proposed intervenors' interest is direct or rem ote." Id. at 972; see also
2 Plaintiffs do not c hallenge the tim eliness of the Motion for Intervention since the Movants indicate that they would not need to change the current schedule if intervention is permitted. See Movants' Br. at 7.
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Liberty Mutual Ins. Co. , 419 F.3d at 220 (a "significantly protectible interest" is one that is not "of a general and indefinite character.").
The Movants state that they have an interest in "choice," i.e., choice between institutional and co mmunity services. Mova nts' Br. at 11. Th e class definition approved by this Court has transform ed any interest the Movants m ight have had from one that could be signifi cant and l egally protectible to one that is, at best, general and remote, if not pu rely illusory. The clas s definition preserves the very choice that the Movants seek to protect by including in the Class only those state ICF/MR residents who "do not or woul d not oppose comm unity placement" and, conversely, excluding those i ndividuals -- including the Movants -- who are opposed to community services. The class definition is consistent with the scope of Plaintiffs' ADA and RA claim s, which are based on t he failure of DPW t o provide community alternatives to those individuals who are not opposed to discharge. Am . Compl. ¶¶ 86, 92. Indeed , Plaintiffs formulated the cas e in this narrow way in recogniti on that the right to community services afforded by the ADA and RA h as been limited to those i ndividuals who are not opposed to such services. Olmstead v. L.C., 527 U.S. 581, 602, 607 (1999).
Put simply, since the Movants are oppos ed to comm unity placement, they are not members of the Class and will not be subject to any relief. Contrary to the Movants' claims, Plaintiffs -- as ev idenced by the Amended Com plaint and the
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Case 1:09-cv-01182-JEJ Document 34 Filed 11/23/09 Page 11 of 25
class definition -- do not have some nefari ous plan to secure relief to "force" or "require" the Movants to leave state ICFs/MR. See Movants' Br. at 10, 12. To t he contrary, the class definition and the scop e of the Amended Co mplaint reveal that the Plaintiffs have carefully circu mscribed their clai ms in accordance with Olmstead to assure that co mmunity services will be provided only to those who desire such services.
The Movants' contention tha t they will be bound by a settlem ent or judgment, thus givi ng rise to a legally prot ectible interest, Movants' Br. at 11, i s untenable. The Movants are not class mem bers and, thus, are not pa rties to thi s case. As such, the y cannot be bound by any potential settlem ent between the Plaintiffs and DPW. A settlement agreement is a contract, Flemming ex rel. Estate of Flemming v. Air Sunshine, Inc., 311 F.3d 282, 289 (3d Cir. 2002) , and "[i]t goes without saying that a contract cannot bind a non-party." EEOC v. Waffle House, Inc., 534 U.S. 279, 294 (2002) . Nor would a judgment on t he merits in this case preclude any claim s that the Movants m ight have since one of the e lements of claim preclusion or res judi cata is identity of the par ties or their privities. See Churchill v. Star Enterprises, 183 F.3d 184, 194 (3d Cir. 1999).
In sum, the Movants' purported signi ficantly protectible interest rests on a fallacy, i.e., that they are Class mem bers who will be bound by a judgm ent or settlement. Such a fallacy can not give rise to an interest that justifies intervention
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as a matter of ri ght. See Liberty Mutual Ins. Co., 419 F.3d at 225-26 (finding that
proposed intervenors did not have a legally protectible interest since the premise of that interest -- i.e., that one of the parties was insolvent -- was "baseless").3
B. Even Assuming that the Movants Have a Significantly Protectible Interest, the Scope of the Class Definition and Lawsuit Assures that Their Interest Is Not In Jeopardy. Even assuming arguendo that the Movants have so me sort of signific antly
protectible legal interest in this action, intervention as a matter of right is warranted
only if they can show that thei r claim "‘is in jeopardy.’" Liberty Mutual Ins. Co. ,
419 F.3d at 226 (citation om itted). The Movants "‘m ust demonstrate that their
legal interests may be affected or impaired, as a practical matter, by the disposition
of the action.’" Id. (citation om itted). This requ ires the Court to determ ine
whether the litigation will have "‘any significant legal effect on the [Movants']
interest.’" Id. (emphasis added; citation o mitted). "‘It is not sufficient that the
3 The Movants also im ply that they ha ve a legally protectible interest in proving that, contrary to Plaintiffs' claims, some state ICF/MR residents require an institutional level of care. See Movants' Br. at 9. Since individuals, such as the Movants, who are opposed to comm unity placement are not members of the Class, their ability to rem ain in the state ICFs/MR is not affected b y this case regardless of whether an institution is the m ost integrated setting appropriate to meet their needs. The Movants' interest in the pr opriety of community placement is merely academic and cannot rise to a significant, direct, legally protectible interest. In essence, it merely wants the Court to is sue an improper advisory opinion on that issue.
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Case 1:09-cv-01182-JEJ Document 34 Filed 11/23/09 Page 13 of 25
claim be incidentally affect ed; rather, there must be a tangible threat to the applicant's legal interest.’" Id. at 226-27 (emphasis added; citation omitted).
Once again, the premise of the Movants' argument that their interests will be jeopardized rests on an invisi ble foundation, i.e., that the Movants are members of the Class who will be bound by a settlement or judgm ent that resolves the Class's claims. But the Movants are not m embers of the Class, and they cannot be bound by any judgment or settlement. See discussion, supra, at 7. As outsi ders to this case, the Movants' interests cannot be tangibly threatened by this litigation.
The Seventh Circuit rejected an inte rvention motion in virtually identical circumstances. In Ligas ex rel. Foster v. Maram , 478 F.3d 771 (7th Cir. 2007) , individuals with developmental disabilities brought a class action lawsuit under the ADA to challenge their unnecessary institu tionalization. Individuals who opposed community placement sought to intervene "to ensure that the disabled would still retain a choice of where they lived." Id. at 773. The district court held that any interest of the proposed intervenors woul d not be threatened or im paired by the lawsuit, and the Court of Appeals agreed. Id. at 774.4 Reviewing the language in the complaint, the appellate court reasoned that the lawsuit would not leave th e
4 Notably, the Movants here are represented by t he same counsel as the unsuccessful movants in the Ligas intervention motion, yet they failed to bring this decision to the Court's attention.
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Case 1:09-cv-01182-JEJ Document 34 Filed 11/23/09 Page 14 of 25
proposed intervenors without a choice of instit utional care. Id. The court explained:
[T]he complaint is "replete with language on choice." Nothing in the complaint, either on its face or as correctly construed by the dist rict court, would require the state to force those who desire institutional care to move out. Id. Like the Ligas case, the Plaintiffs in this case have assured -- through the class definition and the framing of the claim -- that people who are opposed to discharge will not be required by the lawsuit to l eave an institutiona l setting. Since the Movants' choices are, indeed, respected by the Plaintiffs' claims, they cannot establish that their interest in choice is at risk in this case. The Movants' reliance on the later history of t he Ligas case to establish a risk to their purported interest, Movants' Br. at 15-16, is unavailing. In Ligas, the district court in 2006 certified a class simil ar to the one in this case, consisting of Illinois residents with m ental retardation or other de velopmental disabilities who: lived in privately-run institutions or were at risk of insti tutionalization; qualified for long-term care; could l ive in the community with appropriate supports a nd services; and " would not oppose community placement .". Ligas ex rel. Foster v. Maram, Civil Action No. 1:05-cv-4331, 2006 WL 644474 at *5 (N.D. Ill. Mar. 7, 2006) (emphasis added) (Att. A). After this Ligas class was certified and the Seve nth Circuit denied the intervention motion by individual s opposed to community placement, the parties
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entered into a consent decree. See Ligas ex rel. Foster v. Maram, Civil Action No. 1:05-cv-4331, slip op. (N.D. Ill. July 7, 2009) (subm itted as Attachment B to Motion for Intervention). The proposed c onsent decree changed the definiti on of the class in a way that would include a ll persons living in private institutions regardless of whether they are opposed to community placement . Id. at 1-2.5 As the court correctly observed, the c onsent decree's class definition was "considerably broader than the class contemplated by the plaintiffs' lawsuit." Id. at 2. In response to the class notice, more than 2,500 objections were filed, and more than 240 people attended the fairness hearing to oppose the consent decree. Id. In light of the m arkedly expanded class definition and the opposition to the consent decree, the court rejected the s ettlement and decertified the class. The court noted, inter alia, that comm onality and typicality we re no longer satisfied because the proposed settlement class, unlike the pr eviously-certified class, would include individuals who were opposed to community placement. Id. 6
5 It appears that the district court -- at some point prior to its certification of the class and the appeal of the interv ention motion -- dism issed a previouslyproposed class definition and "instruct[ed ] ... the plaintiffs to ensure that parties such as [the proposed intervenors who were opposed to community placement] not be included in a future request to certify a class ...." Ligas, 478 F.3d at 776.
6 Contrary to the Movants' implication, Movants' Br. at 16, the Ligas Court's criticism of the "class definition" related to the revised c lass definition in the proposed consent decree -- not the original class definition.
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Far from demonstrating that intervention is needed to prote ct the Movants' alleged interests, the Ligas case demonstrates that in tervention was not necess ary to do so. The indivi duals opposed to co mmunity placement were not allowed to intervene in Ligas. Yet, when the plaintiffs i n that case sought to enter into a settlement that would am end the class defi nition to include individuals regardless of opposition to community placement and that would bind those individuals, the Court correctly used the well-established cl ass actions procedures of Rule 23(e) to provide those opposing community placement with notice and an opportunity to be heard. They were h eard, and their position prevailed. In this litigation, Plaintiffs have specifically excluded opponents of community placement from the Class. Accordingly, there is no risk that they will be bound by any judgm ent or settlement, and thus the Ligas Court's decertification decision does not support the Movants' contention that they have interests placed in jeopardy by this case.
In lieu of dealing with the realities of this lawsuit as it has been fram ed and actually litigated, the Movants rely on fantas y to establish the risk of harm necessary to justify intervention as of right. The Movants a ssert that the cl ass definition's exclusion of people who are oppos ed to comm unity placement does not matter because the Movants are "class me mbers by the objective standards," and they will thus be bound by any settlement or judgment since there is no right to opt out of a Rule 23(b)(2) class. Movants' Br. at 13. The "objective standards" of the
12

Case 1:09-cv-01182-JEJ Document 34 Filed 11/23/09 Page 17 of 25
class definition, though, explicitly exclude the Movants based on their opposition to community placement and, as such, the y will not be bound by any judgm ent or settlement. See discussion, supra, at 7. The Movants' assertion that they are class members, despite the express and "objectiv e" terms of the class definition, is meritless.
Contrary to the Movants' protests that they respect the rights of Plaintiffs and others who want to live in the comm unity to "choose their own destiny," see Movants' Br. at 2, the Movants are effec tively seeking to strip other state ICF/M R residents from exercising the very choice that they want for them selves. Plaintiffs are asking for relief that would allow stat e ICF/MR residents to m ake informed choices and be provided wit h appropriate options. The Movants, on t he other hand, would foreclose the Court (if it finds DPW violated the ADA and RA) from affording other state ICF/MR residents and their families the information they need to make informed decisions about community placement. The Movants' opposition to the provisi on of accurate inform ation to state ICF/MR residents and their families about community alternatives is incomprehensible.
Finally, the Movants' assertion that the litigation poses a risk of harm to their interests because it is mere ly a s mokescreen to al low "so-called ‘advocates’ t o strike the fatal blow to ICF/MR care in this Commonwealth," Movants Br. at 14, is not credible. There sim ply is no basis fo r this allegation and Movants offer none.
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Case 1:09-cv-01182-JEJ Document 34 Filed 11/23/09 Page 18 of 25
The limited scope of the class definition and the Com plaint make clear that this lawsuit is not about outlawing ICFs/MR in Pennsylvania, but, rather, about assuring that people are provi ded with appropriate community alternatives when they choose them . The Movants' exaggerated claims to transform this case into something it is not should not be permitted to obscure the basic issue, which is that the Movants have no interests that will be harmed in this case because th ey are not members of the Class.7
C. The Movants' Rights Are Adequately Represented by the Existing Parties in the Litigation. To justify intervention as a m atter of right, t he Movants also m ust demonstrate that their interest in the litig ation is not adequately represented by an existing party. Absent collusion or a failure to prosecute, a potential intervenor can establish this element only by showing that his interests "diverge sufficiently [from the party's interests] that the existing pa rty cannot devote proper attention to the applicant's interests." Brody ex rel. Sugzdinis v. Spang , 957 F.2d 1108, 1122-23 (3d Cir. 1992). The burden, "however m inimal" rests with the Movant to satisfy this criterion. Hoots v. Pennsylvania, 672 F.2d 1133, 1135 (3d Cir. 1982) . Here,
7 In fact, this lawsuit coul d not be t he death knell of ICFs/MR in Pennsylvania since this lawsuit only i nvolves state-operated ICFs/M R. As the Movants admit, there also are numerous privately-operated ICFs/MR in the Commonwealth, Am. Co mpl. & Movants' Resp. ¶ 52, and this case would not preclude the Movan ts or others who seek institutional care from using such options.
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whatever interests the Movants m ight have are adequately represented by the Plaintiffs and DPW.
The Plaintiffs have, in fact, r epresented the Movants' interests by carefull y framing this lawsuit and the class defi nition to exclude from the Class those individuals, like Movants, who are opposed to community placement. Contrary to the Movants' assertions, the Plaintiffs are not seeking to "litigate the case against [the Movants'] interests, but in their na me" nor are they "openly antagonistic of [their] wishes." Movants' Br. at 4, 17. Indeed, the Plaintiffs have been cognizant and extremely respectful of the Movants' ability under Olmstead to oppose community placement. The Plai ntiffs already have m ade clear to this Court that the relief they seek will not apply to th ose opposed to community placement. The Movants' intervention would do nothing more than reiterate this point.
DPW, as well, has proved its elf able to represent the Mov ants' interests. "[W]hen a representative party is a governmental body charged by law with protecting the interests of the proposed inte rvenors, the representative is presumed to adequately represent their interests unless there is a showing of gross negligence or bad faith." Ligas, 478 F.3d at 774; accord United States v. City of Philadelphia, 798 F.2d 81, 90 (3d Cir. 1986) . In Ligas, the Seventh Circuit held that the proposed intervenors, indivi duals opposed to community placement, failed to overcome the presumption that the govern ment defendants adequately represented
15

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their interests since there was no evidence that the defendants were grossly negligent or acted in bad faith. Ligas ex rel. Foster, 478 F.3d at 774.
The Movants contend that DPW' s failure to oppose class certification demonstrates a conflict. Movants' Br. at 19. It does not. It merely suggests a difference in litigation tactics. DPW h as vigorously defended this action and, indeed, has filed a Motion to Dism iss the Plaintiffs' claims in their entirety. The decision by DPW not to oppose class cer tification, but rather to seek to defeat the claims and thereby bind all class members to the decision and preclude relitigation, is a reasonable strategic choice. The Movants thus "fail to appreciate the difference between an intervenor' s interest in the litigation and an inte rvenor's interest in litigation strategy." Estate of Kelly ex rel. Gafni v. Multiethnic Behavioral Heath, Inc., Civil Action No. 05-3700, 2009 WL 2902350 at *8 (E.D. P a. Sept. 9, 2009) (Att. B). A mere disagreement with litigation strategy is not sufficient to conclude that DPW cannot represent the Movants' interest capably. See CSX Transp. v. City of Philadelphia, Civil Action N o. 04-cv-5023, 2005 WL 1677975 at *5 (E.D. Pa . July 15, 2005) (the governm ent adequately repres ented the proposed i ntervenors' interest, even though it adopted a narro wer defense than t hat preferred by the
16

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proposed intervenors and sought slightly different relief since "these superficial differences do not reflect any true divergence of interests") (Att. C).8
II. PERMISSIVE INTERVENTION IS NOT JUSTIFIED. When, as here, there is no right to in tervene, the Court may nevertheless
grant permission to intervene to a person w ho "has a clai m or defense that shares
with the main action a comm on question of la w or fact." Fed. R. Civ. P .
24(b)(1)(B); accord Liberty Mutual Ins. Co. , 419 F.3d at 227 . The Court m ust
consider, as well, "whether the interv ention will unduly delay or prejudice the
adjudication of the original parties' rights." Fed. R. Civ. P. 24(c); accord Estate of
Kelly ex rel. Gafni , 2009 WL 2902350 at *8. The decision whether to perm it
intervention is "highly discretionary." Liberty Mutual Ins. Co., 419 F.3d at 227.
Here, the Movants have no "claim or defense" that share common questions
with the main lawsuit since they have a sserted neither a cl aim nor a defense.
Instead, they assert an amorphous "interest" in questions presented in the case and,
8 The Movants' challenge to the adequacy of DPW's representation is based on the assertion that DPW's general interest in the "public welfare" could lead it to enter into a settlement that would adversel y impact the Movants. Movants' Br. at 18-19. The cases cited by the Movants, however, were not class actions so that the proposed intervenors would have no protection if the government defendants made an agreement contrary to thei r interests. Since this is a class action, the Movants would be entitled to notice of any potential settlement if it im pacted their rights, and they would be provi ded with an opportunity to object to such a settlem ent and participate in a fairness hearing. See Fed. R. Civ. P. 23(e) . At this juncture, though, there is no reason to anticipate a conflict between the Movants and DPW.
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specifically, in the certification of the class and whether al l class memb ers are appropriate for or desire community placement. Movant s' Br. at 20. Even assuming that such vague "interests" rise to a legal clai m or defense, they are not sufficient to justify perm issive intervention. In Ligas, the Seventh Circuit upheld the denial of permissive intervention based on these precise "interests." Ligas, 478 F.3d at 775-76. The court noted that those intere sts were addressed by the district court's "instructions to the plaintiffs to en sure that parties such as [the proposed intervenors who were oppose d to com munity placement] not be i ncluded in a future request to certify a class ...." Id. at 776.
In addition, the Court should not permit intervention because doing so would prejudice the adjudi cation of t he parties' rights. Most absent class mem bers are isolated, have lim ited resources, and ha ve disabilities that prevent them from bringing individual lawsuits. Thus, inte rvention to decertify th e class and exclude other state ICF/MR residents who seek co mmunity placement or who, after receipt of appropriate information, might opt for community placement would prejudice the rights of those absent class mem bers by effectively foreclosing their ability to secure relief.
Moreover, decertification of the class mi ght prejudice the named Plaintiffs. Olmstead strongly suggests that ADA integration mandate cases should proceed on a class basis. The Court was concerne d about individuals who, by commencing
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civil actions, can effectively displace others in institutions who are waiti ng for and

desire community services. See Olmstead, 527 U.S. at 606 . If this case is lim ited

to five individuals w ho desire and are appropriate for commu nity services, DP W

will no doubt challenge their right to secure co mmunity services ahead of other

state ICF/MR residents who are also waiting for community placements.

CONCLUSION

For all the reasons set forth a bove, Plaintiffs respectfully request that this

Court deny the Motion for Intervention.

Respectfully

submitted,

Dated: November 23, 2009
Robert Mark Robin Disability 1315 Philadelphia, 215-238-8070 215-772-3126

By: /s/ Robert W. Meek
W. Meek - PA 27870 J. Murphy - PA 38564 Resnick - PA 46980
Rights Network of PA Walnut Street, Suite 400
PA 19107-4798
(fax) RMeek@drnpa.org

1709 2nd Philadelphia, 215-627-7100 215-627-3183

Stephen F. Gold Benjamin Franklin Pkwy.
Floor PA 19103
(fax) stevegoldada@cs.com

Counsel

for Plaintiffs and the Class

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Case 1:09-cv-01182-JEJ Document 34 Filed 11/23/09 Page 24 of 25
LOCAL RULE 7.8(b)(2) CERTIFICATE I certify under penal ty of perj ury that Plaintiffs' Brief in Oppositi on to the Proposed Intervenors' Motion for Intervention Pursuant to Federal Rule of Civil Procedure 24 complies with Lo cal Rule 7.8(b)(2) because it contains 4,583 words (excluding the Table of Cont ents and Table of Citations) based on the word processing system used to prepare the Brief (Word 2003).
/s/ Robert W. Meek
Robert W. Meek

Case 1:09-cv-01182-JEJ Document 34 Filed 11/23/09 Page 25 of 25
CERTIFICATE OF SERVICE
I, Robert W. Meek, hereby certify that Plaintiffs' Brief in Opposition to the
Proposed Intervenors' Motion for Intervention Pursuant to Federal Rule of Civil
Procedure 24, Attachments, and proposed Or der were filed with the Court’s E CF
system on Novem ber 23, 2009 and are available for viewing and downloading
from the ECF system by the following counsel who consented to electroni c
service:
Allen C. Warshaw, Chief Counsel Howard Ulan, Deputy Chief Counsel
Office of General Counsel Department of Public Welfare 3rd Floor West, Health & Welfare Building
Harrisburg, PA 17120
John E. Riley, Esquire William J. Murray, Esquire
Vaira & Riley, P.C. 1600 Market Street, Suite 2650
Philadelphia, PA 19103
Michael Rato, Esquire Sarah M. Goldstein, Esquire
David F. Bacon IV Sidley Austin LLP 787 Seventh Avenue New York, NY 10019
/s/ Robert W. Meek
Robert W. Meek

 
 Case 1:09-cv-01182-JEJ Document 38 Filed 01/25/10 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FRANKLIN BENJAMIN, et. al

:

:

Plaintiffs,

:

:

v.

:

:

DEPARTMENT OF PUBLIC

:

WELFARE, COMMONWEALTH :

OF PENNSYLVANIA and

:

ESTELLE B. RICHMAN,

:

:

Defendants.

:

09-cv-1182 Hon. John E. Jones III

MEMORANDUM AND ORDER January 25, 2010
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS: Before the Court in this action brought under the Americans with
Disabilities act and the Rehabilitation Act is Defendants Department of Public Welfare (“DPW”) and Estelle Richman’s (“Richman”) (“collectively, “Defendants”) Motion to Dismiss the Amended Complaint (“the Motion”). (Doc. 20). For the reasons articulated below, the Court will deny the Motion. I. PROCEDURAL HISTORY

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Plaintiffs Franklin Benjamin1 (“Benjamin”), Richard Grogg (“Grogg”), Frank Edgett (“Edgett”)2, Wilson Sheppard3, Sylvia Baldwin (“Baldwin”)4, and Anthony Beard (“Beard”)5 initiated this action with the filing of a Complaint on June 22, 2009. (Doc. 1). With leave, all of above-named Plaintiffs but Wilson Sheppard (collectively, “Plaintiffs”) filed an Amended Complaint on July 14, 2009. (Doc. 9). Plaintiffs are institutionalized in Pennsylvania’s state-operated intermediate care facilities for persons with metal retardation (“ICFs/MR”). Plaintiffs assert that Defendants’ failure to offer and provide to Plaintiffs community alternatives in lieu of institutionalization where appropriate violates Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 (“ADA”) and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (“Section 504" or “RA”).
On September 2, 2009, the Court granted Plaintiffs’ unopposed Motion to Certify a Class (Docs. 15), and certified a class of all persons who: (1) currently or in the future will reside in one of Pennsylvania’s ICFs/MR, (2) could reside in the
1Benjamin’s interests are represented by and through his next friend, Andree Yock. 2Grogg’s and Edgett’s interests are represented by and through their next friend, Joyce McCarthy. 3 Sheppard’s interests were represented by and through his next friend, Pamela Zotynia. 4Baldwin’s interests are represented by and through her next friend, Shirl Meyers. 5Beard’s interests are represetned by and through his next friend Nicole Turman.
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community with appropriate services and supports, and (3) do not or would not oppose community placement. (Doc. 17). The named Plaintiffs, Benjamin, Grogg, Edgett, Baldwin, and Beard, were named as class representatives. (Doc. 17).
Defendants filed the instant Motion on September 24, 2009. (Doc. 20). The Motion has been fully briefed and, therefore, is ripe for disposition. (Docs. 21, 22, 26). Defendants assert that Plaintiffs have failed to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. II. STANDARD OF REVIEW
In considering a motion to dismiss pursuant to Rule 12(b)(6), courts “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).
A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a). Rule 8(a)(2) requires that a complaint contain a short and plain statement of the claim showing that the pleader is entitled to relief, “in order to give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
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(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. A plaintiff must make “a ‘showing’ rather than a blanket assertion of an entitlement to relief”, and “without some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only ‘fair notice,’ but also the ‘grounds’ on which the claim rests.” Phillips, 515 F.3d at 232 (citing Twombly, 550 U.S. at 555 n.3). “[A] complaint must allege facts suggestive of [the proscribed] conduct,” and the “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 563 n.8. Therefore, “stating a claim requires a complaint with enough factual matter (taken as true) to suggest the required element.” Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 555 n. 3).
On the other hand, “a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits.” Id. at 231 (citing Twombly, 550 U.S. 554-56, 563 n.8). Rule 8 “does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal
4

Case 1:09-cv-01182-JEJ Document 38 Filed 01/25/10 Page 5 of 9
evidence of the necessary element.” Id. at 234. III. FACTUAL BACKGROUND
In accordance with the standard of review, the following facts, derived from the Amended Complaint and other submissions, are viewed in the light most favorable to the Plaintiffs.
Plaintiff Benjamin has been institutionalized at the Ebensburg ICF/MR since 1966. Plaintiffs Grogg and Edgett have been institionalized at the Selinsgrove ICF/MR for twenty (20) years each. Plaintiff Baldwin has been institutionalized at the Polk ICF/MR since 1990. Plaintiff Beard has been institutionalized at the Ebensburg ICF/MR for forty-two (42) years. (Docs. 9 ¶¶ 8-12, 22 p. 1-2). All named Plaintiffs are more or less generally independent and, with proper support, could live in more integrated community settings. (Doc. 22 p. 2). The class members and their families are generally unopposed to community integration, and community support and services would be far less costly than continued institutionalization of the residents. (Doc. 22 pp. 2-3). The Plaintiffs are either not on a waiting list for these community-based services or are likely to be removed from such a list regardless of their level of need. (Doc. 9 ¶¶ 62-63, 73). Further, Plaintiffs assert that DPW has also failed to develop an integration plan to support future community integration. (Doc. 22 p. 11).
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IV. DISCUSSION Defendants note that Plaintiffs’ ADA claim is governed by Olmstead v. L.C.,
527 U.S. 581 (1999). In a plurality opinion, the Supreme Court asserted that a state is required to provide community-based services for persons with mental disabilities when “(1) the State’s treatment professionals determine that such placement is appropriate, (2) the affected persons do not oppose such treatment, and (3) the placement can be reasonably accommodated, taking into account the resources available to the state and the needs of others.” Id. at 606.
The Court noted that the integration mandate “is not boundless” and is limited by “reasonable modifications” and “fundamental-alteration” clauses.6 Id. at 603. Therefore, if a state can prove that integration or modification of its policies and practices would require a fundamental alteration of its services, programs, or activities, it can avoid liability under the mandate for the state’s alleged insufficient integration. See Olmstead, 527 U.S. at 603-607. In evaluating the reasonableness of modification, Olmstead requires consideration of the state’s available resources and responsibility to other patients. See id. at 604.
Defendants assert that Plaintiffs’ claim for community care in lieu of
6 “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, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7).
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institutional care under the ADA should be dismissed because the claim fails satisfy the third element as required by Olmstead, that the placement can be reasonably accommodated. Specifically, Defendants assert that Plaintiffs give “no plausible account of how the relief it seeks can be granted without simply allowing plaintiffs to jump the queue.” (Doc. 21 p. 5). Defendants essentially maintain that Plaintiffs are requesting that DPW disregard the rights or needs of other individuals with mental disabilities to provide Plaintiffs with community-based services.
As Plaintiffs note, Defendants are, basically, asserting that the Plaintiffs have not properly pleaded facts sufficient to suggest that integration would not result in a “fundamental alteration.” Although Plaintiff will bear the initial burden of demonstrating the availability of a reasonable accommodation, if Plaintiff is successful in that task then the burden of proof would shift to the Defendant to establish that the relief demanded would be unduly burdensome or require a fundamental alteration of policy. See Frederick L. v. Dep’t of Public Welfare, 364 F.3d 487, 492 n. 4 (3d Cir. 2004). Therefore, Defendants cannot properly assert that Plaintiffs have failed to meet such a burden when in fact it belongs to Defendants. Accordingly, the Court will not dismiss the Amended Complaint with respect to Plaintiffs claim under the ADA.
7

Case 1:09-cv-01182-JEJ Document 38 Filed 01/25/10 Page 8 of 9
Defendants also tersely assert that Plaintiffs have no entitlement to relief under the RA because “Section 504 is simply not a deinstitutionalization statute.” (Doc. 21 p. 8). The RA, however, like the ADA favors “[t]he most integrated setting appropriate to the needs of qualified individuals with disabilities.” See Frederick L., 364 F.3d at 491 (quoting 28 C.F.R. § 35.130(d)). As such, under Section 504, when appropriate, community-based treatment is preferable over institutionalization. We therefore find that Plaintiffs have also stated a viable claim under Section 504 of the RA.
The Court is satisfied that Plaintiffs have sufficiently alleged a cause of action under both the ADA and the RA. We note that at this stage we are neither evaluating the merits of Plaintiffs claims nor determining Plaintiffs’ probability of success. We are simply evaluating whether Plaintiffs have alleged facts sufficient to state a cognizable claim under the ADA and the RA, and we find that they have. Accordingly, we will deny Defendants’ Motion to Dismiss the Amended Complaint. (Doc. 20). NOW, THEREFORE, IT IS HEREBY ORDERED:
1. Defendants’ Motion to Dismiss the Amended Complaint (Doc. 20) is DENIED.
/s/ John E. Jones III John E. Jones III
8

Case 1:09-cv-01182-JEJ Document 38 Filed 01/25/10 Page 9 of 9
United States District Judge
9

 
 Case 1:09-cv-01182-JEJ Document 48 Filed 06/23/10 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

____________________________________

:

FRANKLIN BENJAMIN, by and through :

his next friend, Andreé Yock; RICHARD :

GROGG and FRANK EDGETT, by and : Filed via ECF System

through their next friend, Joyce McCarthy; :

SYLVIA BALDWIN, by and through her : Civil Action No. 1:09-cv-1182-JEJ

next friend, Shirl Meyers; ANTHONY :

BEARD, by and through his next friend, : Class Action

Nicole Turman, on behalf of themselves :

and all others similarly situated,

: Complaint Filed June 22, 2009

:

Plaintiffs,

: Judge Jones

:

v.

:

DEPARTMENT OF PUBLIC WELFARE :

OF THE COMMONWEALTH OF

:

PENNSYLVANIA and HARRIET

:

DICHTER, in her official capacity as

:

Secretary of Public Welfare of the

:

Commonwealth of Pennsylvania,

:

____________________________________:

PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

Pursuant to Federal Rule of Civil Pr ocedure 56, Plaintiffs and the Class ,

through their Counsel, subm it this Motion for Sum mary Judgment on their claims

under the Americans with Disabilities Act a nd Rehabilitation Act. F or the reasons

set forth in the accompanying Brief, there are no genuine issues of material fact, and

the Plaintiffs and the Class are entitled to j udgment as a matter of law. In support of

this Motion, Plaintiffs and the Class submit a Statemen t of U ndisputed Material

Case 1:09-cv-01182-JEJ Document 48 Filed 06/23/10 Page 2 of 3

Facts, Brief, and Exhibits, which are incorpor ated by reference as if fully set forth in this Motion, as well as a Certification of Non-Concurrence.

Dated: June 23, 2010 Robert Mark Robin Disability 1315 Philadelphia, 215-238-8070 215-772-3126
1709 2nd Philadelphia, 215-627-7100 215-627-3183
Counsel

By: /s/ Robert W. Meek
W. Meek - PA 27870 J. Murphy - PA 38564 Resnick - PA 46980
Rights Network of PA Walnut Street, Suite 500
PA 19107-4705
(fax) RMeek@drnpa.org
Stephen F. Gold Benjamin Franklin Pkwy.
Floor PA 19103
(fax) stevegoldada@cs.com
for Plaintiffs and the Class

2

Case 1:09-cv-01182-JEJ Document 48 Filed 06/23/10 Page 3 of 3
CERTIFICATE OF SERVICE I, Robert W. Meek, he reby certify that Plaintiffs' Motion for Summary Judgment, Brief and Exhib its in Support of t hat Motion, Certificate of NonConcurrence, and proposed Order were filed with the Court’s ECF system on June 23, 2010 and are available for viewing and downloading from the ECF system by the following counsel, who consented to electronic service:
Allen C. Warshaw, Chief Counsel Howard Ulan, Deputy Chief Counsel
Office of General Counsel Department of Public Welfare 3rd Floor West, Health & Welfare Building
Harrisburg, PA 17120
/s/ Robert W. Meek
Robert W. Meek

 
 Case 1:09-cv-01182-JEJ Document 49 Filed 06/23/10 Page 1 of 51

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

____________________________________

:

FRANKLIN BENJAMIN, by and through :

his next friend, Andreé Yock; RICHARD :

GROGG and FRANK EDGETT, by and : Filed via ECF System

through their next friend, Joyce McCarthy; :

SYLVIA BALDWIN, by and through her : Civil Action No. 1:09-cv-1182-JEJ

next friend, Shirl Meyers; ANTHONY :

BEARD, by and through his next friend, : Class Action

Nicole Turman, on behalf of themselves :

and all others similarly situated,

: Complaint Filed June 22, 2009

:

Plaintiffs,

: Judge Jones

:

v.

:

DEPARTMENT OF PUBLIC WELFARE :

OF THE COMMONWEALTH OF

:

PENNSYLVANIA and HARRIET

:

DICHTER, in her official capacity as

:

Secretary of Public Welfare of the

:

Commonwealth of Pennsylvania,

:

____________________________________:

BRIEF IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

Robert W. Meek Mark J. Murphy Robin Resnick Disability Rights Network of PA 1315 Walnut Street, Suite 500 Philadelphia, PA 19107-4705 215-238-8070

Stephen F. Gold 1709 Benjamin Franklin Pkwy. 2nd Floor Philadelphia, PA 19103 215-627-7100

Counsel for Plaintiffs and the Class

Case 1:09-cv-01182-JEJ Document 49 Filed 06/23/10 Page 2 of 51

TABLE OF CONTENTS

Table of Citations ............................................................................................. . iv

Procedural History ........................................................................................... . 1

Statement of Facts ............................................................................................ . 2

A. Plaintiffs' and Class Members' Unnecessary

Institutionalization

........................................................................ 2

B. Opposition to Discharge ................................................................. 4

C. DPW's Failure to Develop and Implement an

Integration Plan for State ICF/MR Residents and

Its

Effective Exclusion of Those Residents from

the Community Mental Retardation System .................................. 6

D. The Costs and Savings of Providing Community Services to Plaintiffs and Class Members .................................... 10

Questions Involved .......................................................................................... 12

Argument .......................................................................................................... 13

I. Standard of Review ..................................................................... 13

II. Defendants Violate the Integration Mandates of the ADA and RA by Failing to Offer Community Services to State
ICF/MR Residents Who Are Not Opposed to Discharge ............ 13

A. The ADA's and RA's Integration Mandates ...................... 13

B.

The Undisputed Facts Demonstrate that State

ICF/MR

Residents Are Unnecessarily Institu-

tionalized, Many Are Not Opposed to Community

Placement,

and Reasonable Modifications

Are

Available .....................................................................15

1.

Community Placement Is Appropriate ................... 16

Case 1:09-cv-01182-JEJ Document 49 Filed 06/23/10 Page 3 of 51

2. Residents Opposed

Plaintiffs and Many State ICF/MR Are Not or Would Not Be to Community Placement ....................... 17

3.

Reasonable Modifications Are Possible................. 20

C. Defendants Are Precluded From Asserting a

Fundam

ental Alteration Defense ......................................21

1. Defendants Have Not Adopted and

Implement

ed a Viable Integration Plan ..................21

2. Plaintiffs the

Defendants Have Effectively Excluded and Class Members from Access to
Community Mental Retardation System ..........24

D. Even If Defendants Are Not Barred From

Asserting a Fundamental Alteration Defense,

the Undisputed Facts Preclude Them From

Prevailing

on that Defense ................................................27

1. Any Costs of Community Services Will

Be

Offset By Significant Savings ...........................27

2.

Relief for Plaintiffs and Class Members

Will Not Result in the Type of Queue-

Jum

ping Criticized in Olmstead .............................29

3. Cannot Defense

DPW's Alleged Current Budget Constraints Sustain a Fundamental Alteration ...................................................................31

III. Defendants Violate the ADA and RA by Using Discriminatory Methods of Administration ............................................. 33

IV. The Declaratory and Injunctive Relief Plaintiffs Request

Is

Appropriate to Remedy Defendants' Discriminatory

Conduct .......................................................................................35

ii

Case 1:09-cv-01182-JEJ Document 49 Filed 06/23/10 Page 4 of 51

A. Plaintiffs and the Class Satisfy the Standard

for

Permanent Injunctive Relief ....................................... 35

B. The Court Should Grant the Requested Relief .................39

Conclusion ...................................................................................................... 41

iii

Case 1:09-cv-01182-JEJ Document 49 Filed 06/23/10 Page 5 of 51
TABLE OF CITATIONS
Cases
Benjamin v. Dep't of Public Welfare, Civil Action No. 1:09-cv-1182-JEJ, slip op. (M.D. Pa. Jan. 25, 2010) .................................................................................. 14, 20, 21
Bjorgung v. Whitetail Resort, LP, 550 F.3d 263 (3d Cir. 2008) .........................................................................13
Borough of Palmyra Bd. of Educ. v. F.C., 2 F. Supp. 2d 637 (D.N.J. 1998) ............................................................35, 36
Burriola v. Greater Toledo YMCA, 133 F. Supp. 2d 1034 ................................................................................. 36
Community Services, Inc. v. Heidelberg Township, 439 F. Supp. 2d 380 (M.D. Pa. 2006) ........................................................ 37
Cota v. Maxwell-Jolly, 688 F. Supp. 2d 980 (N.D. Cal. 2010) .................................................. 32, 33
Crabtree v. Goetz, Civil Action No. 3:08-0939, 2008 WL 5330506 (M.D. Tenn. Dec. 19, 2008) ................................................................. 23, 38
Deck v. City of Toledo, 29 F. Supp. 2d 431 (N.D. Ohio 1998) ........................................................ 36
Disability Advocates, Inc. v. Paterson, 598 F. Supp. 2d 289 (E.D.N.Y. 2009) ........................................................17
Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184 (E.D.N.Y. 2009), app. pending .................................19
Disability Advocates, Inc. v. Paterson, Civil Action No. 03-CV-3209, 2010 WL 786657 (E.D.N.Y. Mar. 1, 2010), app. pending ..........................................19, 39, 40
iv

Case 1:09-cv-01182-JEJ Document 49 Filed 06/23/10 Page 6 of 51
Disability Advocates, Inc. v. Paterson, Civil Action No. 03-CV-3209, Remedial Order and Judgment (E.D.N.Y. Mar. 1, 2010) .............................................................................41
Disability Advocates, Inc. v. Paterson, Civil Action No. 03-CV-3209, 2010 WL 933750 (E.D.N.Y. Mar. 11, 2010) ......................................................................... 38
Fisher v. Okla. Health Care Auth., 335 F.3d 1175 (10th Cir. 2003) ..................................................................22
Frederick L. v. Dep't of Public Welfare (Frederick L. I), 364 F.3d 487 (3d Cir. 2004) .........................................14, 16, 17, 20, 21, 22
Frederick L. v. Dep't of Public Welfare (Frederick L. II), 422 F.3d 151 (3d Cir. 2005) ................................................................ 23, 24
Helen L. v. DiDario, 46 F.3d 325 (3d Cir.), cert. denied, 516 U.S. 813 (1995) ......................... 15
Independent Living Center of Southern California v. Maxwell-Jolly, 572 F.3d 644 (9th Cir. 2009), petition for cert. filed, 78 U.S.L.W. 3500 (U.S. Feb. 16, 2010) (No. 09-958) ............................. 38
James ex rel. James v. Richman, 465 F. Supp. 2d 395 (M.D. Pa. 2006), aff'd, 547 F.3d 214 (3d Cir. 2008)............... ................................................ 35, 36
Kathleen S. v. Dep't of Public Welfare, 10 F. Supp. 2d 460 (E.D. Pa. 1998) ......................................................... 39
Liberty Resources, Inc. v. Southeastern Pennsylvania Transp. Auth., Civil Action No. 99-4837, 2001 WL 1047061 (E.D. Pa. Aug. 30, 2001), vacated as moot, 54 Fed. Appx. 769 (3d Cir. 2002) .....................39
Lovely H. v. Eggleston, 235 F.R.D. 248 (S.D.N.Y. 2006) ............................................................. 37
Messier v. Southbury Training School, 562 F. Supp. 2d 294 (D. Conn. 2008) ......................................................22 v

Case 1:09-cv-01182-JEJ Document 49 Filed 06/23/10 Page 7 of 51
Olmstead v. L.C., 527 U.S. 581 (1999) .................................14, 15, 16, 17, 18, 21, 29, 31, 35
Pennsylvania Protection and Advocacy, Inc. v. Pa. Dep't of Public Welfare,
402 F.3d 374 (3d Cir. 2005) .............................................21, 22, 23, 24, 25 Rite Aid of Pennsylvania, Inc. v. United Food & Commercial Workers Union,
595 F.3d 128 (3d Cir. 2010) ....................................................................13 Smith v. Johnson & Johnson
593 F.3d 280 (3d Cir. 2010) ....................................................................13 Spieler v. Mt. Diablo Unified School Dist.,
Civil Action No. C 98-0951 CW, 2007 WL 3245286 (N.D. Cal. Nov. 2, 2007) ........................................................................ 37 Swann v. Charlotte-Mecklenburg Bd. of Educ. 402 U.S. 1 (1971) ....................................................................................39
Statutes, Regulations, and Rules 29 U.S.C. § 701(a)(5) ........................................................................................38 29 U.S.C. § 701(a)(6) ....................................................................................... 38 29 U.S.C. § 705(20)(B) .....................................................................................16 29 U.S.C. § 794 .................................................................................................33 29 U.S.C. § 794(a) .............................................................................................14 29 U.S.C. § 794(b).............................................................................................16 42 U.S.C. § 1396n(c) ......................................................................................... 2 42 U.S.C. § 12101(a)(3) ...................................................................................38
vi

Case 1:09-cv-01182-JEJ Document 49 Filed 06/23/10 Page 8 of 51
42 U.S.C. § 12012(a)(7) ................................................................................... 38 42 U.S.C. § 12102(1)(A) ...................................................................................16 42 U.S.C. §§ 12131-12134 ................................................................................33 42 U.S.C. § 12131(1)(B) ...................................................................................16 42 U.S.C. § 12131(2) ........................................................................................16 42 U.S.C. § 12132 ............................................................................................13 28 C.F.R. § 35.130(b)(3) ..................................................................................33 28 C.F.R. § 35.130(b)(7) ..................................................................................15 28 C.F.R. § 41.51(b)(3) ....................................................................................33 Fed. R. Civ. P. 23(b)(2) ......................................................................................1 Fed. R. Civ. P. 25(d) ...........................................................................................1 Fed. R. Civ. P. 56(c) ........................................................................................ 13 55 Pa. Code § 6400.1 ......................................................................................... 3
Miscellaneous HCFA, Developing Comprehensive Effectively Working Plans Initial Technical Assistance Recommendations (Jan. 14, 2000), available at http://www.cms.gov/smdl/downloads/smd011400c.pdf. .............18
vii

Case 1:09-cv-01182-JEJ Document 49 Filed 06/23/10 Page 9 of 51
PROCEDURAL HISTORY Plaintiffs, individuals with mental reta rdation, are institutionalized in intermediate care facilities for persons with me ntal retardation (ICFs/MR) operated by Defendants, the Department of Public Welfare and the S ecretary of Public Welfare (collectively, DPW).1 Plaintiffs filed this lawsuit in June 2009 to challenge DPW=s failure to offer them appropr iate community supports and services in violation of Title II of the Americans with Disabili ties Act (ADA) an d Section 504 of the Rehabilitation Act (RA). Plaintiffs seek only declaratory and injunctive relief. The Court certified this case t o proceed on behalf of the following class pursuant to Federal Rule of Civil Procedure 23(b)(2):
All persons who: (1) currently or in the future will reside in one of Pennsylva nia's state-operated intermediate care facilities for persons with ment al retardation; (2) could reside in the co mmunity with appropriate services and supports; and (3) do not or would not oppose comm unity placement. Class Certification Order (Sept. 2, 2009) (Docket # 17). The Court denied Defendant s' Motion to Dism iss, Memorandum and Order (Jan. 25, 2010), and a Motion to Intervene filed by families or guardians of nine state ICF/MR residents. Memorandum and Order (Mar. 10, 2010), app. pending.
1 Pursuant to Fed. R. Civ. P. 25(d), Harriet Dichter was automatically substituted for Defendant Richman, who she succeeded in office as Secr etary of Public Welfare.

Case 1:09-cv-01182-JEJ Document 49 Filed 06/23/10 Page 10 of 51
STATMENT OF FACTS A. Plaintiffs' and Class Members' Unnecessary Institutionalization The five named Plaintiffs are i ndividuals with mental retardation ranging in age from 34 to 52 years old. Pls.' SUF ## 1-5. 2 The Plaintiffs have been institutionalized in state ICFs/MR (also known as state centers) for periods ranging from 20 to 44 years. Id. DPW' s five state-operated ICFs/MR are licensed facilities funded through the Medical Assistan ce program, under which the federal government pays more than half the costs. Pls.' SUF ## 12-15. As of Septem ber 30, 2009, the five state ICFs/MR housed a total of 1,224 residents. Id. # 17. DPW also funds an array of comm unity-based mental retardation servi ces, including residential services (such as group hom es) and da y programs (such as vocational training and socialization). Pls.' SUF # 28. Comm unity-based mental retardation services in Pennsylvania ar e funded primarily t hrough the Medical Assistance program, specifically two home and community-based waivers know n as the Consoli dated Waiver and the Person/Family Directed Support (P/FDS) Waiver. Id. # 30.3 The federal government pays th e same percentage of the costs
2 Refer ences to "Pls.' SU F" are to the Statement of Undisputed Mat erial Facts filed in support of Plaintiffs' Motion for Summary Judgment, which includes citations to admissible evidence.
3 Medical Assistance home and community-based waivers are authorized by 42 U.S.C. § 1396n(c). Waivers allow states to ac cess Medical Assistance funding
2

Case 1:09-cv-01182-JEJ Document 49 Filed 06/23/10 Page 11 of 51
of these waiver services as it does for services in state ICFs/ MR. Id. ## 32, 33. Although the Waivers lim it the num ber of individuals who can receive services, the federal government has readily approv ed Pennsylvania's requests to amend the Waivers to increase those caps. Id. # 37.
Residents of state ICFs/MR ar e more segregated than individuals with mental retardation who receive co mmunity-based services. Pl s.' SUF # 52. State ICFs/MR are locat ed in more rural parts of the state. Id. ## 12, 52. Most state ICF/MR residents live in units ranging fr om 16 to 20 people , usually receive day services on the grounds of the facilities, and do not have as m uch opportunity as those living in the comm unity to interact with a wide range of people and have access to community services. Id. # 52.
DPW's stated policy is to provide in dividuals with m ental retardation services in the co mmunity. Pls.' SUF # 50. Indeed, Pennsylvania has em braced the policy of "norm alization," which "def ines the right of the indivi dual with mental retardation to live a life which is as close as possible in all aspects to the life which any member of the community might choose." Id. # 48; 55 Pa. Code § 6400.1. Normalization is based on rese arch that shows tha t people with mental retardation do significantly better if they receive services in a "normal" environ-
to provide services that could not othe rwise be funded under the state Medical Assistance plan. Pls.' SUF # 31.
3

Case 1:09-cv-01182-JEJ Document 49 Filed 06/23/10 Page 12 of 51

ment, i.e., the environment in which non-d isabled people typically live. Id. # 49.

Individuals who live in the state ICFs/MR cannot learn to live a norm

al life

because institutions are abnormal s ettings, and individuals who live in them come

to rely on the structures of the institutionalized routine. Id. # 51.

There are no types of serv ices that DPW provi des in its state ICFs/MR t hat

are not currently provided to i ndividuals with mental retardation who live in th e

community. Pls.' SUF # 46. Accord ing to DPW 's Deputy Secretary for

Developmental Programs, "although the aver age acuity in the state [ICF/MR] is

significantly higher than the average acuity in the comm unity, there is no person

we are serving in the state [ICFs/MR] for whom we are not serving a very sim ilar

person in the community." Id. # 47.

Most significantly, Defendant s have admitt ed that all persons with m ental

retardation who are institutionalized in the state ICFs/MR, including the named

Plaintiffs, could live in mo re integrated community settings if they received

appropriate services. Pls. ' SUF ## 43-45. Accordingl y, Plaintiffs and class

members are unnecessarily segregated in institutional settings.

B. Opposition to Discharge

Plaintiffs and their involved families do not oppose discharge to community-

based programs. Pls.' SUF ## 53-60. Ind eed, they have expre ssed an affirmative

desire to move to the community. Id. ## 54-58, 60. In many cases, this is based on

4

Case 1:09-cv-01182-JEJ Document 49 Filed 06/23/10 Page 13 of 51
the desire of Plaintiffs and family members to live closer to each other, particularly as the Plaintiffs' family memb ers age. Id. ## 54-56, 60, 137. There are also other state ICF/MR residents who have affirma tively asked to live in the comm unity, particularly to be closer to their aging parents. Id. # 135.
After this lawsuit was filed, DPW re viewed the opini ons of state ICF/MR residents and their families regarding community placement. Pl s.' SUF ## 61-62. According to this review, nearly 1,100 state ICF/MR residents either expressed that they were not opposed or did not otherw ise indicate any oppositi on to discharge. Id. # 63. The fam ilies of 33 1 state ICF/MR residents e ither expressed that they were not opposed or did not otherwis e indicate opposition to discharge. Id. # 64. Thus, at least 27 percent of state ICF/MR residents' families are not opposed to discharge.
DPW's assessment likely overstated op position by fam ilies. First, the assessment was based essen tially on a paper revi ew of existing documentation. Pls.' SUF # 62. Second, there are plainly instances in which DPW staff incorrectly concluded that family members were opposed to discharge. Id. ## 65-69. Third, it is impossible to assess with accuracy th e number of state ICF/MR residents and their families who are opposed to disc harge since they generally lack the information needed to make an inform ed choice. Id. ## 71, 72. Apprehension about community services is not uncomm on, but experience and research have
5

Case 1:09-cv-01182-JEJ Document 49 Filed 06/23/10 Page 14 of 51
demonstrated that most fam ilies are satisfi ed with co mmunity services after their relatives are discharged from state institutions. Id. # 70. Accordingl y, Defendants admit that the opposition of many family members to the discharge of their relatives in state ICFs/MR could be over come through effective education about community services. Id. # 71.
C. DPW's Failure to Develop and Implement an Integration Plan for State ICF/MR Residents and Its Effective Exclusion of Those
Residents from the Community Mental Retardation System. Defendants admit that they have faile d to offer comm unity services to Plaintiffs and other state ICF/MR resi dents who are appropr iate for and not opposed to discharge. Pls. ' SUF # 74. Defendants also admit that they have neither adopted nor implemented a plan to discharge to community placements any state ICF/MR residents who are not oppos ed to discharge that includes specific benchmarks to identify the number of state ICF/MR residents for whom DPW will provide community mental retardation serv ices and the tim e lines in which those services will be provided. Id. # 100. D efendants further admit that they do not have a waiting list to provide community supports and services to residents of state ICFs/MR that moves at a reasonable place. Id. # 99. Indeed, in t he five fiscal years between FY 2004-2005 and 2008-200 9, inclusive, only 54 state ICF/MR residents were discharged to community-based services (while 200 died during the same time period). Id. ## 20, 22.
6

Case 1:09-cv-01182-JEJ Document 49 Filed 06/23/10 Page 15 of 51
There is a waiting list for co mmunity mental retardation servic es in Pennsylvania. Pls.' SUF # 75. When in dividuals who are not institutionalized in ICFs/MR apply for comm unity mental re tardation services, DPW 's agents complete a "Prioritization and Urgency for Need of Services (PUNS)" form to determine the person' s waiting list category -- "emergency" (i.e., needs services immediately); "critical" (i.e., needs services within tw o years); or "planning" ( i.e., will need services in more than two but fewer than five years). Id. ## 75-77.
State ICF/MR residents, in contrast, do not automatically have PUNS form s completed to assess their waiting list category. See Pls.' SUF ## 80-81. To the contrary, only 113 of the approxim ately 1,200 state ICF/MR residents have had PUNS forms co mpleted. Id. # 81. Of those 113 indi viduals, seven are on the emergency waiting list, six are on t he critical waiting list, 65 are on the planning waiting list, and 35 have been determined to be fully served. Id.4
Individuals who have not had PUNS forms completed or whose PUNS forms conclude that they are "fully se rved" -- li ke 94 percent of st ate ICF/MR residents -- are not on the waiting li st for community mental retardation services at
4 Plaintiff Benjamin has never had a PUNS form completed. Pls.' SUF # 83. Plaintiff Grogg, despite the undisput ed fact that he is ext remely independent and wants to be discharged, has been ca tegorized on his PUNS form as "fully served" in the state ICF/MR. Id. # 82. Plaintiffs Edgett, Baldwin, and Beard have been placed, respectively, in the planni ng, critical, and em ergency categories. Id. ## 84, 85.
7

Case 1:09-cv-01182-JEJ Document 49 Filed 06/23/10 Page 16 of 51
all. Pls.' SUF # 78. More over, Defendants admit that even the very few stat e ICF/MR residents who have had PUNS completed and are placed on the waiting list are unlikely ever to be removed fro m the waiting list and provided with community services regardless of their level of need. Id. ## 84-86, 88.
While only 54 state ICF/MR resident s were discharged between FY 20042005 and FY 2008-2009, incl usive, Pls.' SUF ## 22, 92, D PW received $316.4 million during that period to fund comm unity services for 6,784 people with mental retardation who were on the waiting list. Id. # 89. This included funding to provide 2,488 i ndividuals with reside ntial services in the community. Id. # 90. DPW received additional funding to serve 793 individuals on the waiting list in FY 2009-2010. Id. # 93. In addition, the Governor has requested funding to serve an additional 150 individuals on the waiting list in FY 2010-2011. Id. # 94. It is not expected that the waiting list funding for FY 2009-2010 or 2010-2011 will be used to provide community services to any state ICF/MR residents. Id. # 95.
In allocating waiting list expansion fund s, Defendants have consciously and continually chosen t o use virt ually all of those funds t o provide servi ces to non institutionalized individuals rather than to use any portion of t he money to provide community services for state ICF/MR residents. Pls.' SUF # 104.5 This decision is
5 Comm unity services for m ost of the state ICF/MR residents who have been discharged in recent years has been funded through non-w aiting list
8

Case 1:09-cv-01182-JEJ Document 49 Filed 06/23/10 Page 17 of 51
not based on budget constraints, sin ce it was im plemented even when DPW received significant funding to provide residential and non- residential services for thousands of individuals on the waiting list. See id. ## 89-90, 92-95, 103. Some of the more than $316 m illion that has been allocated since FY 2004-2005 to fund community mental retardation services for individuals on the waiting list have been used to provide comm unity services to individuals who are in trul y emergency situations, but m any of the m ore than 7,500 individuals who have received community services were not in such situations. For example, 2,160 of the 6,200 individuals on the waiting li st who re ceived community services between FY 2006-2007 and FY 2009-2010, inclusive, were youngsters w ho were graduating from school, most of whom are not in imminent danger. Id. # 91.
Individuals on the waiting list can also be provided with community services when vacancies in existing services ar ise due to deaths or other reasons. See Pls.' SUF ## 97. Each year, approximately 700 to 750 vacan cies in the Consolidated Waiver arise, about two-thirds of which are in residential program s. Id. # 96. DPW has instructed the Ad ministrative Entities (the local agencies that contract with DPW to im plement the Waivers) to consider only individuals who are on or would meet the crit eria for the emer gency waiting list when filling vacan cies,
expansion initiatives, such as th e closure of Altoona Center. See Pls.' SUF # 92, 110.
9

Case 1:09-cv-01182-JEJ Document 49 Filed 06/23/10 Page 18 of 51
which excludes almost all state ICF/MR residents. Id. ## 38, 81, 97. Defendants have been unable to provide any evidence that any state ICF/MR resident has been discharged to a vacancy in an existing community program in the last 10 years. Id. # 98.
D. The Costs and Savings of Providing Community Services to Plaintiffs and Class Members.
The average cost to provide services to each resident in a state ICF/M R in FY 2008-09 was $228,000 per resident. Pls.' SUF # 23. That cost will increase to $240,000 per person in FY 2009 -2010 and is expected to furt her increase to $256,000 per person in FY 2010-2011 -- a 12 percent increase in just two years. Id. ## 23, 24.6 The costs t o operate the stat e ICFs/MR increase annually even though the population at those facilities continues to decline each year. Id. # 25.7
DPW currently does not have inform ation concerning how much it would cost to provide community services to the remaining state ICF/MR residents. Pls.' SUF # 112. The average an nual cost to serve the 58 individuals most recently
6 DPW also funds many privately-ope rated ICFs/MR that serve approximately 2,500 Pennsylvanians. Pls.' SUF # 26. The average annual cost to provide services to resident s in the privately- operated ICFs/MR is about $138,000 per person -- over $100, 000 per person less than the cost of th e state ICFs/MR. Pls. ' SUF # 27.
7 The population at the state ICFs/MR is expected to fall to 1,190 by Jul y 2010, due almost exclusively to resident deaths. Pls.' SUF ## 18, 21.
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discharged from the state ICFs /MR is $166,000 per person. Id. # 113. 8 Further, the services for approximately 75 percent of those 58 indi viduals cost less than $169,000 per person annually. Id. # 116.
Although there can be no dispute that the average cost to provide community services to state ICF/MR residents is far lo wer than the average co st to continue to provide them with institutional care, Defendants have contended that DPW would incur "transition cost s" when m oving people to the co mmunity. Transition costs refer to the m oney spent during the s hort-term period when DPW m ust fund services to individuals in state institutio ns while at the same time it m ust fund the development of community services to enable their discharge ( e.g., finding a community home, hiring staff). Pls.' SUF # 120.
It is undisputed, though, that tran sition costs are followed by savings. See Pls.' SUF ## 123-124. Although DPW has no information about what, if any, transition costs it incurred when it prev iously closed state ICFs/MR, plans developed by DPW to provi de community se rvices to residents of Selinsgrove Center and Ham burg Center showed that DPW would incur some costs (in state
8 This figure m ay be somewhat inflated since it includes 18 residents from Philadelphia and 10 from Allegheny County, which ha ve higher costs than elsewhere in Pennsyl vania. Pls.' SUF # 114. More over, the average cost i n FY 2008-2009 to provide community services to individuals discharged from the state ICFs/MR between 1999 and 2002 was $120,000 per person. Id. # 118.
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dollars) in the first two years, but would begin realizing savings (of state dollars) in the third year, and those savings would c ontinue to increase each year since th e costs of state ICF/MR services are ri sing faster than the costs of comm unity services. Id. ## 122-124. These ever-increasing savings could be used to expand funding to provide services to indivi duals on the waiting list who live in the community. Id. # 125. Nevertheless, DPW c hose not to im plement the Selinsgrove/Hamburg closure plans, in whol e or in part, in favor of m aximizing the funding available to expand se rvices for people on the waiting list who live in the community, even though it would have cost only about $6 m illion in state dollars in FY 2008-2009 to do so, and DPW r eceived $83 m illion that year to provide services to individuals on the waiting list. Id. ## 126, 127.
QUESTIONS INVOLVED 1. Does DPW violate the integration mandates of the ADA and RA by failing to offer community services to state ICF/MR residents who are not opposed to discharge? 2. Does DPW violate the ADA and RA by using methods of administration that have the ef fect of continuing to unnecessarily segregate state ICF/MR residents who are not opposed to discharge? 3. What permanent injunctive relief is appropriate to remedy Defendants' continued violations of the ADA and RA?
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ARGUMENT I. STANDARD OF REVIEW Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c) ; Smith v. Johnson & Johnson , 593 F.3d 280, 284 (3d Cir. 2010). Facts are "m aterial" only if they might "affect the outcome of the case under governing law." Id. In assessing a summary judgm ent motion, the Court m ust view the facts in the light m ost favorable to the non-m oving party. Rite Aid o f Pennsylvania, Inc. v. United Food and Commercial Workers Union, 595 F.3d 128, 131 (3d Cir. 2010) . "However, ‘the mer e existence of some factual dispute between the parties will not defeat an otherwise properly supported m otion for summary judgment.’" Bjorgung v. Whitetail Resort, LP , 550 F.3d 263, 268 (3d Cir. 2008) (emphasis in original; citation omitted). II. DEFENDANTS VIOLATE THE INTEGRATION MANDATES OF THE ADA AND RA BY FAILING TO OFFER COMMUNITY SERVICES TO STATE ICF/MR RESIDENTS WHO ARE NOT OPPOSED TO DISCHARGE. A. The ADA and RA Integration Mandates. Title II of the ADA prohibits public entities, such as DPW, from excluding persons with disabilities from participating in or denying the benefits of services, programs, or activiti es, or otherwise disc riminating against such indi viduals. 42 U.S.C. ' 12132. This provision "largely mirrors Section 504 of the [Rehabilitation
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Act (RA)]," 29 U.S.C. ' 794(a), which applies to fe derally-funded programs, and thus the Third Circuit has "construed the provisions of the RA and the ADA similarly in light of their close similarity of language and purpose." Frederick L. v. Dep't of Public Welfare, 364 F.3d 487, 491 (3d Cir. 2004) (Frederick L. I); accord Benjamin v. Dep't of Public Welfare, slip op. at 8 (M.D. Pa. Jan. 25, 2010).9
"The ADA['s] and RA's an ti-discrimination principles culm inate in their integration mandates [28 C.F.R. '' 35.130(d), 41.51(d)] , which direct states to administer services, programs, and ac tivities in the m ost integrated setting appropriate to the needs of qualifie d individuals with disabilities." Frederick L. I, 364 F.3d at 491 . The integration m andate requires the provision of services to persons with disabilities in " >a setting that enables individuals with disa bilities to interact with nondisabled persons to the fullest extent possi ble.’" Id. (quoting 28 C.F.R. pt. 35, App. A, p. 450 (1998)). "In short, where appropriate for the patient, both the ADA and RA favor integrated , community-based treat ment over institutionalization." Id. at 492.
In Olmstead v. L.C., 527 U.S. 581 (1999), the Supreme Court interpreted the ADA's integration mandate. It unequivoca lly held that unnecess ary institutionalization and isolati on of i ndividuals with disabilities consti tutes discrimination
9 Since the ADA and RA ar e construed similarly, Plaintiffs' subsequent references to the "ADA" will mean both the ADA and RA.
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under the ADA. Id. at 600 ; accord Helen L. v. DiDario , 46 F.3d 325, 333 (3d Cir.), cert. denied, 516 U.S. 813 (1995) . The Court concluded that t he ADA's prohibition on discrim ination may require th at states provide services to persons with disabilities in comm unity settings rather than in institutions. Olmstead, 527 U.S. at 587. The Court recognized, however, that the public entity's obligations are "not boundless." Id. at 603. Writing for a plurality, Justice Ginsburg noted that the integration mandate is qualified by th e ADA's "reasonable m odification" and "fundamental alteration" provisions, 28 C.F.R. ' 35.130(b)(7), which provide that a public entity need not m ake modifications that would fundam entally alter the nature of the service, program, or activity. Id. at 603.
B. The Undisputed Facts Demonstrate that State ICF/MR Residents Are Unnecessarily Institutionalized,
Many Are Not Opposed to Community Placement, and Reasonable Modifications Are Available.
Olmstead identified three elements in an in tegration mandate case: (1) that community placement is appropriate for th e individual; (2) that the tra nsfer to a more integrated setting is not opposed by the individual; and (3) that the placement in a more integrated setting can be reasonably accommodated. Olmstead, 527 U.S.
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at 587, 607; accord Frederick L. I , 364 F.3d at 492 . Plaintiffs readily establish
each of the elements on which they have the burden of proof.10
1. Community Placement Is Appropriate.
The plain language of t he integration mandates does not require proof that a
person is receiving inappropriate or substandard services in the institutional setting.
Congress made a determ ination that as between two appropriate settings -- an
institution or the community -- the community is the better choice per se because
people with disabilities should live in inte grated settings just as do non-disabled
people. As the Olmstead Court explained:
Recognition that unjustified institutional isolation of persons with disabilities is discrim ination reflects two evident judgments. First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarra nted assumptions that persons so isolated are incapable o r unworthy of participating in community lif e. [citations omitted]. Second, confinement in an institution severely dimi nishes the everyday life activities of individuals , including family relations, social contacts, work options, econom ic
10 It is undi sputed that Plaintiffs a nd class mem bers are qualified individuals with disabilities protected by the ADA and RA since they have an impairment, mental retardation, that s ubstantially limits one or m ore major life activities and are eligible fo r community mental retardation services. Pls.' SUF ## 7, 29; 29 U.S.C. § 705(20)(B) ; 42 U.S.C. §§ 12102(1)(A) , 12131(2). It also is undisputed that Defendant DPW, administered by Defendant Dichter, must comply with Title II of the ADA and Section 504 of the RA since it is a department of a state government that receives federal funding. Pls.' SUF ## 8, 10, 11; 29 U.S.C. § 794(b); 42 U.S.C. § 12131(1)(B).
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independence, educational a dvancement, and cultural enrichment.
Olmstead, 527 U.S. at 600-01 (emphasis added).
Defendants admit that all state IC F/MR residents could live in the
community if they received appropriate services. See Pls.' SUF ## 43-45. There
also is no dispute that co mmunity settings would be more integrated than the state
ICFs/MR in which the Plaintiffs and class memb ers reside. See Pls.' SUF # 12, 52.
The undisputed material facts thus dem onstrate that Plaintiffs and class mem bers
are unnecessarily segregated in institutional settings and that community placement is appropriate .11
2. Plaintiffs and Many State ICF/MR Residents Are Not or Would Not Be Opposed to Community Placement. The Olmstead Court indicated that the integration mandate does not requi re
the state to transfer from institutional to community-based services individuals
who are "opposed" to such a t ransfer, 527 U.S. at 587 , since there is no "federal
requirement that community-based treatm ent be im posed on patients who do not
11 Although state ICF/MR residents have some opportunities to engage in community activities, the appropriate i nquiry is whether a particular setting "‘enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.’" Frederick L. I, 364 F. 3d at 491 (citation omitted); accord Disability Advocates, Inc. v. Pa terson, 598 F. Supp. 2d 289, 320 (E.D.N.Y. 2009). It is undisputed t hat state ICF/MR reside nts do not have as much opportunity as those living in the co mmunity to interact with a wide range of people and to have access to community activities. Pls.' SUF # 52.
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desire it." Id. at 602. The undisputed fa cts demonstrate that the nam ed Plaintiffs and their involved family members are not opposed to community placement. See Pls.' SUF ## 53-60. Moreove r, an assessment of the views of state ICF/MR residents and their fam ilies toward comm unity placement indicat e that there was no opposition to community placement expressed by about 331 fam ilies. See Pls.' SUF ## 61-64. Olmstead's language concerning opposition to community placement, therefore, does not foreclose relief on behalf of these individuals.
DPW's survey likely overstated opposition by family members. See Pls.' SUF ## 65-69, 70-72. Moreo ver, Defendants admit that opposition expressed by many state ICF/MR residents and families does not necessarily reflect an informed choice. Pls.' SUF # 71. It is undisputed that DPW does not provide state ICF/MR residents and their fam ilies with the info rmation they need to understand their community options and that, if t hey received effective education about those options, they might not be opposed to discharge. See Pls.' SUF ## 71-73.
The Olmstead Court did not clarify what constituted "opposition" to community placement. At m inimum, though, individuals with disabilities must be able to make informed choices. See HCFA, Developing Comprehensive Effectively Working Plans - Initial Techni cal Assistance Recommend ations at 8 (Jan. 14, 2000), available at http://www.cms.gov/smdl/downloads/smd011400c.pdf. Stat e ICF/MR residents and their families should be provided with "accurate information
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and a meaningful choice" about comm unity options before they are definitively determined to be opposed to discharge. See Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184, 267 (E.D.N.Y. 2009) , app. pending. Individual s who are institutionalized and appropria te for disc harge have the right to make inform ed choices, and Defendants cannot use uninf ormed or fear-based resistance t o discharge as a shield against liability. Su ch individuals and their involved families must be provi ded with comprehensive education about comm unity services, including the opportunity to visit specific community placements, in order to allow them to make an i nformed decision as to whether they oppose discharge. See Disability Advocates, Inc. v. Paterson , Civil Action No. 03-CV-3209, 2010 WL 786657 at *3 (E.D.N.Y. Mar. 1, 2010) (agreeing in integration mandate case that it was appropriate to provide unnecess arily segregated individuals with information about community placement in a comprehensive, in-depth, multi-faceted manner to assess their opposition to discharge), app. pending.12
12 The Class in this case excludes individuals who do or would oppose community placement. Plaint iffs do not ask the Court to grant any relief that would force community placement on st ate ICF/MR residents who are opposed t o discharge. Appropriate relief, however, must include the provisi on of necessary education about comm unity options t o enable state ICF/MR residents and their families to make an informed decision.
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3. Reasonable Modifications Are Possible. The third, and last, requiremen t for Plaintiffs to establish liability under the integration mandates is to articulate a possible reasonable modification. Frederick L. I, 364 F.3d at 492 n.4 ; Benjamin, slip op. at 7. Plaintiffs have articulated two potential reasonable modifications. First, it would be a reasonable m odification for Defendants to develop community services for Plaintiffs and class members. The undisputed facts demonstrate that it would be signi ficantly less expensive to develop and provide services to Plaintiffs and class memb ers in the community than in state ICFs/MR. See Pls.' SUF ## 23-25, 112, 113, 114, 116. Even assum ing that there would be some short-term transition costs involved in developing community services for these individuals, DPW could realize signifi cant -- and ever-increasing -- savings by developing community alternatives for Plaintiffs and clas s members. See Pls.' SUF # 122-124. Second, it would be a reasonable m odification for Defendants to assure that state ICF/MR residents have access to placements in existing community programs when vacancies ari se. Most transition costs can be avoided if i ndividuals are placed in existing community programs since they can b e discharged immediately without delays, unlike new program s that require time to be developed. S ee Pls.' SUF # 120. Yet, Defendant s have created a system in which state ICF/MR
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residents have been effectively cut o ff from accessing vaca ncies in comm unity placements. See Pls.' SUF ## 96-98.
C. Defendants Are Precluded From Asserting a Fundamental Alteration Defense.
A state can avoid liability under the in tegration mandate if it can establish that the provi sion of com munity services would consti tute a "fundamental alteration" of its services , programs, or activities. See Olmstead, 527 U.S. at 60307; Frederick L. I., 364 F.3d at 492 ; Benjamin, slip op. at 6. Defendants have the burden of proving that the relief sought would be unduly burdensome or require a fundamental alteration of policy. Frederick L. I, 364 F.3d at 492; Benjamin, slip op. at 7. In this case, however, Defendants are barred from asserting a fundamental alteration defense fo r two independent reasons: (1) their failure to adopt and implement a viable integra tion plan for Plaintiffs and class member s; and (2) their exclusion of Plaintiffs and cl ass members from the communi ty mental retardation system.
1. Defendants Have Not Adopted and Implemented a Viable Integration Plan. The Third Circuit, as well as other courts, have st ressed that states' noncompliance with the ADA's integration mandate cannot be excused merely because compliance may result in some higher costs. See Pennsylvania Protection and Advocacy, Inc. v. Pa. Dep't of Public Welfare , 402 F.3d 374 , 380 (3d Cir. 2005);
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Frederick L. I , 364 F.3d at 495-96 ; Fisher v. Okla . Health Care Auth. , 335 F.3d 1175, 1183 (10th Cir. 2003); Messier v. Southbury Training School , 562 F. Supp. 2d 294, 323, 34 5 (D. Conn. 2008) . In holding t hat higher costs alone could not establish a fundamental alteration defense, the court in Frederick L. I stressed: "It is a gross injustice to keep these disabled persons in an instit ution notwithstanding the agreement of all relevant parties th at they no longer require instit utionalization." 364 F.3d at 500. As such, the Court required DPW to "make a commitment to action in a manner for which it can be held accountable by the courts." Id.
The following year, in Pennsylvania Protection and Advocacy, Inc. , the Third Circuit reversed the di strict court's decision that DPW had established a fundamental alteration defense in an ADA integration manda te case merely because it did not have sufficient funds to move the institution's residents to the community and provide servi ces for others with mental healt h needs. 402 F.3d at 382. The court hel d that "this basis is insufficient as a matter of law under Frederick L. [I]." Id. The court explained:
A state cannot meet an allegation of non-compliance [with the ADA's integration mandate] simply by replying that compliance would be too costly or would ot herwise fundamentally alter its no n-complying programs. Any program that runs afoul of the integration mandate would be fundamentally altered if brought into com pliance. Read this broadly, the f undamental alteration defense would swallow the integratio n mandate whole. [citation omitted]
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Instead, the only sensible reading of the integration mandate consistent with the Court' s Olmstead opinion allows for a fundam ental alteration defense only i f the accused agency has developed and implemented a plan to come into compliance with the ADA and RA.
Id. at 381 (emphasis in original and added); accord Crabtree v. Goetz, Civil Action
No. 3:08-0939, 2008 WL 5330506 at *29-*30 (M.D. Tenn. Dec. 19, 2008) (st ate
statute was not "com prehensive plan" fo r community services since it was not
operational and court was not persuaded it would be effectively implemented).
Subsequently, in Frederick L v. Dep't of Public Welfare , 422 F.3d 151 (3d
Cir. 2005) (Frederick L. II ), the Third Circuit held that DPW could not assert a
fundamental alteration defense in the absence of any viable integration plan for the
class of state hospital residents:
DPW may not avail itself of the "fundamental alteration" defense to relieve its obliga tion to deinstitutionalize eligible patients without establishing a plan that adequately demonstrates a reasonably specific and measurable commitment to deinstitutionalization for which DPW may be held accountable.
* * *
DPW's failure to articulate this commitment in the form of an adequately specific co mprehensive plan for placing eligible patients in co mmunity-based programs by a target date places the "fundam ental alteration defense" beyond its reach.
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Id. at 157, 158-59 (emphases added). A "viable integration plan," the Third Circuit held, must specify "the time-fram e or targ et date for patient discharge" and the "approximate number of patients to be discharged each time period ...." Id. at 160.
In sum, the decisions in this trilogy of Third Circuit cases ex plicitly bar a state from even asserting, much less prevailing on, a fu ndamental alteration defense in an ADA integration m andate case when it has not adopted and implemented a viable integration plan that has specific discharge benchmarks and time lines. Remarkably, five years after Frederick L. II -- and one year after this lawsuit was filed -- DPW adm its that it has no integration plan with specific discharge benchmarks and timelines for Plaintiffs and other state ICF/MR residents who are not oppose d to discharge. See Pls.' SUF # 100. A fortiori it also has not implemented any such plan. As such, the fundamental alteration defense is simply "beyond [DPW's] reach," Frederick L. II , 422 F.3d at 158-59 , and this Court should foreclose DPW from asserting it.
2. Defendants Have Effectively Excluded Plaintiffs and Class Members from Access to the Community Mental Retardation System.
In Pennsylvania Protection and Advocacy, the Third Circuit held that DPW could not demonstrate the type of "commitment to action" that, under Frederick L. I, is a prerequisite to any fundam ental alteration defense in an ADA integration mandate case. As a result, the Court directed entry of summary judgment against DPW on the fundamental alteration defense. 402 F.3d at 383-85 , 385-86. In tha t
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case, DPW admitted that it did not consider the residents of the involved institution to be part of the comm unity mental h ealth system and di d not require count y offices to plan for or devel op community mental health services for those individuals. Id. at 383 . Since DPW excluded the instit ution's residents from its community mental health system, it could not possi bly establish a "commitment to action" necessary for a funda mental alteration defense. Id. at 385. In this case, as in Pennsylvania Protection and Advocacy , DPW has effectively excluded almost all state ICF/MR residents from access to community mental retardation services in the following two respects and, thus , should be barred from asserting a fundamental alteration defense.
First, DPW's policies bar almost all state ICF/MR residents from the waiting list of persons who will be considered fo r community mental retardation services when funding to expand services for individuals on the waiting list is appropriated. Defendants admit that the named Plaintiffs and class members are either not on any waiting list for comm unity mental retardati on services or are unlikely ever to be removed from the waiting li st, regardless of their level of need, when funding i s appropriated to develop comm unity services for people on the waiting list. See Pls.' SUF ## 82-85, 88. The evidence dem onstrates that these polici es have, i n fact, excluded state ICF/MR residents from access to the community mental retardation system when waiting list expa nsion funds become avail able. While
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Defendants have received ap proximately one-third of $1 billion to provide community mental retardation services to more than 7,500 i ndividuals since FY 2004-2005, fewer than 60 state ICF/MR residents were afforded comm unity services during that same period. Pls.' SUF ## 22, 89, 92-95. Defendants' policies and practices thus have effectively excluded state ICF/MR residents from access to the substantial waiting list expansion funding that has been appropriated. 13
Second, Defendants have not afforded state ICF/MR residents access to vacancies in existing commu nity mental re tardation programs wh en they arise. Although DPW has about 700 to 750 vacan cies in existing comm unity mental retardation program each year, Defend ants have no evidence that any state ICF/MR residents have been discharged to such vacancies in recent years. Indeed, it is unlikely that they could have be en since Defendants' policies allow only individuals on the emergency waiting list to be considered for those vacanci es while effectively excluding state ICF/MR residents from the waiting list in general and the emergency waiting list in particular. See Pls.' SUF ## 96-98.
13 DPW considers placement in state IC Fs/MR so intrinsically harm ful that the risk of institutionalization in such facilities will result in the placement of noninstitutionalized individuals on the emerge ncy waiting list. Pl s.' SUF # 79. Yet , current state ICF/MR residents -- m any of whom, like the Plaintiffs, have been institutionalized for decades -- are not considered to be at any risk of harm and thus cannot even gain access to the waiting list.
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D. Even If Defendants Are Not Barred from Asserting a Fundamental Alteration Defense, the Undisputed Facts
Preclude Them From Prevailing on that Defense. 1. Any Costs of Community Services Will Be Offset By Significant Savings.
Costs alone are not a sufficient basi s to sustain a fundamental alteration defense. See discussion, supra, at 21-24. To the extent that costs have any bearing on the issue, the undisputed facts dem onstrate that Defendants' cost concerns are exaggerated.
First, DPW has previously been able to fund the development of com munity services for some state ICF/MR resi dents using the carry-forward budget ( i.e., by reducing the funding provi ded to the stat e ICFs/MR) rather than seeking new, "expansion" funding. Pls.' SUF # 110. Since the carry-forward budget is simply used to maintain funding at existing leve ls, approval is easier than for expansion projects. Id. ## 106-107. The Director of the Bureau of Financial Management for DPW's Office of Developmental Programs testified that it would be possible to use this same process t o develop comm unity services for additional state ICF/MR residents. Id. # 111. Accordingly, DPW could use the cost-neutral carry-forward budget process to fund t he development of community alternatives for at least some state ICF/MR residents.
Second, the evidence is undisputed th at the average cost of provi ding community services to state ICF/MR residents is significantly less than the average
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cost of continuing to provide them with institutional care. Although DPW has no

information about t he cost of provi ding community services to current state

ICF/MR residents, the evidence indicat es that it has cost an average o

f

approximately $166,000 per year to serv e the most recently discharged state

ICF/MR residents (and that figure may be inflated by geographic disparities). See

Pls.' SUF ## 112-114. In c ontrast, the cost to provide services in the state

ICFs/MR is currently $240,000 per person annually and is expected to increase to

$256,000 next year. See id. ## 23-24.

Third, although Defendants ha ve contended that they would incur transiti on

costs (i.e., costs to fund continued institutiona l care while community services are

developed), they have never undertaken any study of what, if any, actual transition

costs were incurred in prior cl osings of state ICFs/ MR. See Pls.' SUF # 22. The

only evidence that DPW has on thi s subject relates to i ts abandoned proposals to

close Selinsgrove and Ham burg Centers a nd to provi de community services to

residents of those institutions. Those plans demonstrated that DPW would begin to

realize savings of state dollars after initia l increased expenditures in the first two

years of the plan. See id. # 124. Moreover, those savings would continue to grow

each year due to the fact that the costs of services in state centers ar e growing

faster than the costs of services in the community. See id.

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In sum, the evidence demonstrates that, at worst, DPW would i ncur only short-term, limited costs to provide commun ity services to Plaintiffs and class members. Those costs would not only be offset within a few years, but the savings would increase every year and provide a funding source to furt her expand community mental retardation services for non-institutionalized individuals.
2. Relief for Plaintiffs and Class Members Will Not Result in the Type of Queue-Jumping Criticized in Olmstead.
In Olmstead, the Supreme Court advise d that, if certain circumstances are met, a court should not displace unnecessarily institutionalized individuals at the top of a w aiting list for community servi ces with individuals lower on the waiting list simply because the former individuals co mmenced litigation. Olmstead, 527 U.S. 606. Defendants cannot establish a f undamental alteration defense on the basis that Plaintiffs and class memb ers, through this lawsuit, are engaging in t he type of queue-jumping that Olmstead sought to foreclose.
First, Olmstead was concerned about queue-jum ping on a waiting list to provide community services to indi viduals who are all unnecessarily institutionalized. Although DPW has a "waiting lis t" for comm unity mental retardation services, virtually none of the individuals on that list are institutionalized in state ICFs/MR. See Pls.' SUF ## 75-88. As such, Plai ntiffs and class mem bers are not seeking to jum p ahead of others w ho are unnecessarily institutiona lized, and Olmstead's instructions on that issue are inapposite.
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Second, even if the queue-jumping concern is somehow applicable in this context, Plaintiffs and class memb ers have been effectively excluded from the existing queue for comm unity mental retardation services. Although DPW m aintains a waiting list for comm unity mental retardation services, Defendants adm it that Plaintiffs and class memb ers are not on that waiting list at all. As such, they are never considered when fundi ng becomes available for community mental retardation services or when vacancies in existing programs arise. See Pls.' SUF ## 81-88. Accordingly, this lawsuit does not seek to place Plaintiffs and class members ahead of others in the queue, but to assure that they are in the queue so that their needs for community services are addressed.
Third, by developing comm unity services for Plaintiffs and c lass members, DPW would realize increasing savings. Th ese savings coul d be used to expand funding for non-institutionalized individuals who are on the waiting list. See Pls.' SUF # 125. As suc h, even if the provision of community services to Plaintiffs and class members would require delay in th e provision of community services for some non-institutionalized persons on t he waiting list, within a few years th e savings realized will allow m ore non-institutionalized individuals to receive community services than otherwise would.
Finally, and m ost importantly, the existence of a waiting list per se is not sufficient to insulate DPW from liability under the ADA' s integration mandates.
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Olmstead suggested that the Court sh ould not disrupt a waiting list only if the state has demonstrated that it has a "co mprehensive, effectively working plan" to provide community services to individua ls who are unnecessarily institutionalized and a "waiting list that moves at a reasonable pace ...." Olmstead, 527 U.S. at 60506. Defendants admit that they neither ha ve a comprehensive, effectively working plan nor a waiting list that moves at a reas onable pace for state ICF/MR residents. See Pls.' SUF ## 99-100.
3. DPW's Current Alleged Budget Constraints Cannot Sustain a Fundamental Alteration Defense. DPW contends that it is faced with budget constraints that require it to make difficult choices and that it has chosen to use its waiting list expansion funds for non-institutionalized individuals over stat e ICF/MR residents because th e former are at higher risk of harm. For m ost of the same reasons discussed above, this argument is not viable factually or legally. Factually, DPW has received about one -third of $1 b illion since FY 20042005 to fund comm unity services for m ore than 7,500 non-insti tutionalized individuals with mental retardation. See Pls.' SUF ## 89, 93. Moreover, some of this funding was used for individuals gr aduating from school, most of who woul d not be at imminent risk of harm w ithout immediate community services. See id. # 91. There sim ply is no reason why Defe ndants could not have used some portion of this w aiting list expansion funding to provide services for state ICF/MR
31

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residents who Def endants admit are unnecess arily institutionalized. In addition, DPW decided against im plementation of its plans to provi de community services to residents of Selinsgrove and Hamburg Centers because it would have cost about $6 million in state dollars in FY 2008-2009, even though: (1) it received m ore than $83 million in waiting list expansion fu nding that year, and (2) within three years, DPW would realize ev er-increasing savings that would enable it to increas e funding for community services for non-institutionalized people on the waiting list. See Pls.' SUF ## 125-126. Finally, DPW o fficials admitted that it is not budget constraints that prevented Defendants fr om developing community services for state ICF/MR residents or, at the very least, creating and impl ementing a viable integration plan for those individuals. See id. ## 103-105.
Legally, this argument is flawed be cause budget constraints have been repeatedly held to be an inad equate basis to avoi d compliance with the ADA' s integration mandate. See discussion, supra, at 21-24. Recently, in Cota v. Maxwell-Jolly, 688 F. Supp. 2d 980 (N.D. Cal. 2010) , the court prelim inarily enjoined California's decision to reduce se rvices provided in an adult day health care program. Defendants argued that it did not violate the ADA' s integration mandate because California' s severe budget crisis led it to make "a policy determination to limit ... services to thos e individuals who need the services the most and who are risk of adm ission to a skilled nursing facility.'" Id. at 995 .
32

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Rejecting that argument, the court held th at "a state defendant cannot rely on budgetary constraints alone as the basis for a fundamental alteration defense." Id.
III. DEFENDANTS VIOLATE THE ADA AND RA BY USING DISCRIMINATORY METHODS OF ADMINISTRATION. The ADA and RA prohibi t states from using methods of administration that have the effect of subjecting qualified in dividuals with disabilities to discrim ination on the basis of disability. 29 U.S.C. § 794 and 28 C.F.R. § 41.51(b)(3) (RA); 42 U.S.C. §§ 12131-12134 and 28 C.F.R. § 35.130(b)(3) (ADA). This provi sion prohibits explicit policies an d actual practices that ar e neutral on their face, but deny individuals with disabilities effective opportunity to participate. Cota, 688 F. Supp. 2d at 995. Policies and practices that have a disparate impact on a particular class of persons with disabilities can violate this provision. See id. at 996. Defendants have used m ethods of adm inistration that have resulted in the continued, discriminatory, and unnecessary segregation of Plaintiffs and class members in state ICFs/MR. Specifically:  Defendants have neither adopted nor im plemented any plan t o
develop community services for Pl aintiffs and class memb ers. See Pls.' SUF # 100. "DPW' s failure to adequately plan for the com munity placements needed by thes e class m embers has caused their continued, unnecessary segregation," which constitutes a discri minatory method of adm inistration that vi olates the ADA and RA.
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Kathleen S. v. Dep't of Public Welfare , 10 F. Supp. 2d 460, 473 (E.D. Pa. 1998).  Defendants have adopted and implemented policies and practices that effectively exclude Plaintiffs and class members from access to community mental retardation serv ices when exp ansion funding is appropriated or w hen vacancies arise in existing community programs. See Pls.' SUF ## 96-98. These policies and procedures constitute discriminatory methods of adm inistration that violate the ADA and RA.  Defendants have failed to provide state ICF/MR residents and their families with m eaningful education about co mmunity options. With appropriate information, it is likely that many state ICF/MR residents and their families would not be opposed to discharge. See Pls.' SUF ## 70-73. As such, DPW's failure constitutes a discriminatory method of administration that violates the ADA and RA.
34

Case 1:09-cv-01182-JEJ Document 49 Filed 06/23/10 Page 43 of 51
IV. THE DECLARATORY AND INJUNCTIVE RELIEF PLAINTIFFS REQUEST IS APPROPRIATE TO REMEDY
DEFENDANTS' DISCRIMINATORY CONDUCT. A. Plaintiffs and the Class Satisfy the
Standard for Permanent Injunctive Relief. In determining whether to issue a pe rmanent injunction, t he Court m ust consider whether: (1) the m oving party has succeeded on the merits; (2) the moving party will be irrepara bly injured by denial of re lief; (3) whether the entry of a permanent injunction will result in ev en greater harm to the Defendants; and (4) whether an injunction would be in the public interest. See James ex rel. James v. Richman, 465 F. Supp. 2d 395, 402 (M.D. Pa. 2006) (citing Shields v. Zuccarini, 254 F.3d 476, 482 (3d Cir. 2001)), aff'd, 547 F.3d 214 (3d Cir. 2008) . As discussed above, Plaintiffs have established that Defe ndants' actions violate the ADA and RA and, thus, have succeeded on the merits. The other elements required for permanent injunctive relief are satisfied as well. "To establish irreparable harm, a party must demonstrate that the har m it will suffer is ‘of a peculiar nature, so th at compensation in money cannot atone for it.’" Borough of Palmyra Bd. of Educ. v. F.C. , 2 F. Supp. 2d 637 , 644 (D.N.J. 1998) (quoting Acierno v. New Castle County , 40 F.3d 645, 653 (3d Cir. 1994) ). The Supreme Court has recognized the ha rm of unnecessar y institutionalization, writing that "confinement in an instituti on severely dim inishes the everyday life activities of individuals ...." Olmstead, 527 U.S. at 601 . DPW has conceded t hat
35

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state ICF/MR residents are more segregat ed than other indi viduals with mental retardation since, inter alia, they do not have as much opportunity as those livi ng in the community to interact with a wide range of people and to ha ve access to community activities." Pls.' SUF # 52. DPW's Secretary of Developmental Programs also testified that individuals in institutions cannot learn to live a normal life. Id. # 51. Plaintiffs and other state IC F/MR residents have experienced harm due to their continued unnecessary insti tutionalization, including regre ssion, increased hopelessness, and less opportunity for contact with aging family members. Id. ## 135-139. The har m of unnecessary institutionalization cannot be rem edied by monetary damages and, thus, it is irreparable. Cf. Deck v. City of Toledo , 29 F. Supp. 2d 431, 434 (N.D. Ohio 1998) (irreparable injury ba sed on im properly constructed curb ramps that, inter alia, "prevent Plaintiffs from engaging in normal life activities ...."); Borough of Palmyra Bd. of Educ., 2 F. Supp. 2d at 645 (holding that loss of appropriate education constitutes irreparable injury).14
Irreparable injury also is established wh ere, as here, the injuries Plaintiffs and class members "incur are ‘the very type of injuries Congress tried to avoid.’" Burriola v. Greater Toledo YMCA , 133 F. Supp. 2d 1034, 1040 (N.D. Ohio 2001)
14 Even if the injuries to Plain tiffs and the class memb ers could be completely remedied by monetary damages, the harm would be irreparable because the Eleventh Amendment precludes recovery of damages against DPW. James ex rel. James, 465 F. Supp. 2d at 407.
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(citation omitted). "The an ti-segregation laws upon which Plaintiffs re ly reflect

important public policy commit ments to equality and access." Lovely H. v.

Eggleston, 235 F.R.D. 248, 262 (S.D.N.Y. 2006). Actions that restrict integration

of people with disa bilities into the m ainstream of society c onstitute irreparable

harm. See id.; cf. Spieler v. Mt. Diabl o Unified School Dist. , Civil Action No. C

98-0951 CW, 2007 WL 3245286 at *4 (N.D. Cal. Nov. 2, 2007) (segregation based

on disability is, "by its very nature," irreparable harm).

Any harm to the Defendants from the issuance of injunctive relief will be far

less than that suffered by Plaintiffs

and class m embers who have been

unnecessarily segregated in state instituti ons for ye ars -- ofte n for decades. Th e

main requested relief is t o require Defendants to seek funding from the Governor

and Legislature to fund a viabl e integration plan for class memb ers and to allow

those individuals access to vacancies in ex isting community programs. Such relief

will not create any significant hardship on Defendants.

The public interest also will be served by issuance of the req uested injunc-

tive relief. "There exists in this c ounty a ‘clear pronouncement of a national

commitment to end the unnecessary exclusion of persons wit h handicaps from the

American mainstream.’" Community Services, Inc. v. Heidelberg Township , 439

F. Supp. 2d 380, 399 (M.D. Pa. 2006) (citation omitted). In enacting the ADA and

re-enacting the RA, Congress expressly found that discrimination persists "in such

37

Case 1:09-cv-01182-JEJ Document 49 Filed 06/23/10 Page 46 of 51
critical areas as ... institutionalization ...." 42 U.S.C. § 12101(a)(3) ; 29 U.S.C. § 701(a)(5). Congress further stated that:
[T]he goals of t he Nation properly i nclude the goal of providing individuals with disabilities with the tools necessary to -- ... achieve ... fu ll inclusion and integration in society ... [and ] independent living ... for such individuals. 29 U.S.C. § 701(a)(6) ; accord 42 U.S.C. § 12101(a)(7) . "‘[T]he public has a strong interest in the prom pt remediation of syst emic discrimination against a vulnerable population.’" Disability Advocates, Inc. v. Paterson , Civil Action No . 03-cv-3209, 2010 WL 933750 at *3 (E.D.N.Y. Mar. 11, 2010) (citation omitted). Thus, the publ ic interest is served by enforcement of t he ADA's integration mandate. Crabtree v. Goetz, 2008 WL 5330506 at *30.15
15 Defendants cannot rely on Pennsylvania's purported budget constraints to demonstrate that an award of injunctive re lief would not be i n the public interest. "A budget crisis does not excuse ongoing viol ations of federal law, particularly when there are no adequate remedies available other than an inj unction." Independent Living Center of Southern California, Inc. v. Maxwell-Jol ly, 572 F.3d 644, 659 (9th Cir. 2009), petition for cert. filed , 78 U.S.L.W. 3500 (U.S. Feb. 16, 2010) (No. 09-958). Moreover, the re lief requested, over time, could yield significant cost savings that can be used to expand community services for persons on the waiting list. See Pls.' SUF # 125.
38

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B. The Court Should Award the Requested Injunctive Relief.
The Court=s equitable powers to fashion an appropriate rem edy for
Defendants' violations of Plai ntiffs' and class members' rights under the ADA and
RA are expansive:
Once a right and a vi olation have been shown, the scope of a district court =s equitable powers to rem edy past wrongs is broad, for breadth and flexibi lity are inherent in equitable remedies.
The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between public interest and private needs ...."
Swann v. Charlotte-Meckl enburg Bd. of Educ. , 402 U.S. 1 , 15 (1971) (quoting
Hecht Co. v. Bowles, 321 U.S. 321, 329-330 (1944)); accord Disability Advocates,
Inc. v. Paterson, 2010 WL 786657 at *1; Liberty Resources, Inc. v. Southeastern
Pennsylvania Transportation Auth., Civil Action No. 99- 4837, 2001 WL 1047061
at *3 (E.D. Pa. Aug. 30, 2001), vacated as moot, 54 Fed. Appx. 769 (3d Cir. 2002).
Plaintiffs have subm itted a proposed Order that sets forth the relief they
seek, including processes to identify class members and to provide appropriate and
ongoing education about community options to state ICF/MR residents and t heir
39

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involved families and guardians. See Disability Advocates, Inc., 2010 WL 786657 at *3. The key substantive relief that Plai ntiffs request is for the Court to require DPW to adopt and i mplement a viable inte gration plan with benchmarks for the number of state ICF/MR residents t o be discharged and tim elines in which to do so. Although the fi nal class size at this point is unknown, Defendants' survey suggests that there are at least 300 stat e ICF/MR residents who are not oppose d and whose families are not opposed for discharge and for whom they can develop a plan. Given that the discharges of stat e ICF/MR residents ha s been at a virtual standstill for a num ber of years, the plan should require DPW d evelop and implement a viable integration plan that provides community services for at least 100 class mem bers annually for the first three years and, if there are additiona l class members at the end of the third y ear, for 75 class memb ers a year thereafter until all have been discharged. To implement this plan, DPW should consider:
 requesting as one of DPW' s top priorities in its budget proposals that the Governor seek appropriations to fund the developm ent of community services to meet the plan's benchmarks;
 where possible, shifting funds from the carry-forward budget for state ICFs/MR to the Waiver budget; and
40

Case 1:09-cv-01182-JEJ Document 49 Filed 06/23/10 Page 49 of 51

 modifying its vacancy system to allo w access to state ICF/MR

residents to have access to vacanci es in existing community programs

that match their needs.

Cf. Disability Advocates, Inc. v. Paterson, Civil Action No. 03-CV-3209, Remedial

Order and Judgment at 5 (E.D.N.Y. Mar. 1, 2010) (Docket # 405) (requiring state

to develop supported housing for at l east 1,500 adult care home residents with mental illness annually until sufficient beds exist), app. pending.16

CONCLUSION

For all the reasons set forth a bove, Plaintiffs respectfully request that this

Court grant Plaintiffs' Motion for Summ ary Judgment and issue appropriate relief

as requested.

Respectfully

submitted,

Dated: June 23, 2010
Robert Mark Robin Disability 1315 Philadelphia, 215-238-8070 215-772-3126

By: /s/ Robert W. Meek
W. Meek - PA 27870 J. Murphy - PA 38564 Resnick - PA 46980
Rights Network of PA Walnut Street, Suite 500
PA 19107-4705
(fax) RMeek@drnpa.org

16 In addit ion to t hese substantive requirements, procedural protections -including reporting requireme nts and continuing j urisdiction by t he Court -- are essential to assure that Defendants implement their obligations.
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1709 2nd Philadelphia, 215-627-7100 215-627-3183
Counsel

Stephen F. Gold Benjamin Franklin Pkwy.
Floor PA 19103
(fax) stevegoldada@cs.com
for Plaintiffs and the Class

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Case 1:09-cv-01182-JEJ Document 49 Filed 06/23/10 Page 51 of 51
LOCAL RULE 7.8(b)(2) CERTIFICATE I certify under penalty of perjury that Plaintiffs' Brief in Support of their Motion for Summary Judgm ent contains 9,661 words (excluding the Table of Contents and Table of Cita tions) based on the processing system used to prepare the Brief (Word 2003). By Order date d June 11, 2010 (Document 47), the Court granted Plaintiffs' Motion for Leave to Ex ceed the Page Li mitation of Local Rule 7.8(b)(2) so long as Plaintiffs' Brief in Opposition to Defendants' Motion to Dismiss did not exceed 10,000 words. Executed this 23rd day of June, 2010.
/s/ Robert W. Meek
Robert W. Meek

 
 Case 1:09-cv-01182-JEJ Document 105 Filed 05/26/11 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

____________________________________

:

FRANKLIN BENJAMIN, by and through :

his next friend, Andreé Yock; RICHARD :

GROGG and FRANK EDGETT, by and :

through their next friend, Joyce McCarthy; :

SYLVIA BALDWIN, by and through her : Civil Action No. 1:09-cv-1182-JEJ

next friend, Shirl Meyers; ANTHONY :

BEARD, by and through his next friend, : Class Action

Nicole Turman, on behalf of themselves :

and all others similarly situated,

: Complaint Filed June 22, 2009

:

Plaintiffs,

:

:

v.

:

:

DEPARTMENT OF PUBLIC WELFARE :

OF THE COMMONWEALTH OF

:

PENNSYLVANIA and GARY

:

ALEXANDER, in his official capacity as :

Acting Secretary of Public Welfare of the :

Commonwealth of Pennsylvania,

:

:

Defendants.

:

____________________________________:

PLAINTIFFS' UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF THE PROPOSED CLASS ACTION SETTLEMENT
AGREEMENT AND FOR APPROVAL OF THE CLASS NOTICE

Plaintiffs and the Class, through t heir counsel, subm it this Motion for

Preliminary Approval of the Proposed Cla ss Action Settlement Agreement and for

Approval of the Cl ass Notice. The Mo tion is unoppose d as set forth in t he

Certificate of Concurrence submitted with this Motion. In support of t his Motion,

Plaintiffs state as follows:

Case 1:09-cv-01182-JEJ Document 105 Filed 05/26/11 Page 2 of 16
1. Plaintiffs, individuals with dia gnoses of intellectual disabili ties who are institutionalized in state-operated inte rmediate care facilitie s for persons with mental retardation (state ICFs/MR), filed this class action lawsuit in June 2009. Plaintiffs alleged that Defendants, the Department of Public Welfare and the Secretary of Public Welfare (collectively, DPW), violated Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12134, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, by, inter alia, failing to offer them mental retardation services in the comm unity, which is the m ost integrated setting appropriate to meet their needs.
2. Plaintiffs filed a Motion for Class Certification. By Order dated September 2, 2009, this Court certified this case to proceed as a class actio n pursuant to Federal Rule of Civil Procedur e 23(b)(2) on behalf of all indivi duals who: (1) currently or will in the futu re reside in one of Pennsyl vania's state ICFs/MR; (2) coul d reside in the co mmunity with appropriate support s and services; and (3) do not or will not oppose community placement.
3. Defendants filed a Motion to Dism iss, which the Court denied. Defendants subsequently filed an Answer.
4. In October 2009, ni ne residents of the state ICFs/MR filed a Motion for Intervention. The residents, through th eir families or guardians, asserted that they were opposed to discharge from the state ICFs/MR. DPW concurred, but
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Plaintiffs opposed this Motion. In Marc h 2010, this Court denied the Motion for Intervention, holding that t he proposed intervenors failed to meet three of the four criteria required for interventi on as of ri ght and t hat permissive intervention was not warranted. The proposed intervenors appealed. In April 2011, the Court of Appeals affirmed this Court's denial of in tervention, concluding that the proposed intervenors' "interest in m aintaining their current form of care is not directly in jeopardy in this litigation. Th e current parties have deliberately defined the class and the relief sought so that the Intervenors' right to choose institutional treatment would not be affected." Benjamin v. Dep't of Publ ic Welfare, No 10-1908, 2011 WL 1243683 at *3 (3d Cir. Apr. 5, 2011). The court furt her explained that the possibility that "providing additional community placements will oc casion some reallocation of the lim ited resources of DPW" did not create an interest that warranted intervention. Id. "[A]ny possible im pact on Intervenors' interest in maintaining their current institutional care is not the kind of direct im pact that gives rise to a right to intervene." Id.
5. The parties completed extensive fact discovery i n late 2009 and earl y 2010. Plaintiffs requested and receive d numerous documents, including Community Placement Plans for all state ICF/MR residents and information concerning DPW's budgets, costs for state ICF/MR services, and costs for community services. Plaintiffs also served and received answ ers to interrogatories and requests for
3

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admissions. In addition, Plaint iffs deposed five fact witnesses and defended the depositions of five witnesses. Meek Declaration ¶ 2 (Exh. 1).
6. Plaintiffs retained two experts; one expert assessed the m ethodology used by DPW to determ ine opposition to comm unity placement and t he other expert analyzed the costs and savings asso ciated with the provision of c ommunity services to class memb ers. DPW retained an expert to rebut Plaintiffs' expert on costs and savings. Plaintiffs defended the deposition of their financial expert and deposed DPW's rebuttal expert. Meek Decl. ¶ 3.
7. In June 2010, the parties filed cross-motions for summary judgment. 8. In October 2010, wi th the part ies' agreement, the Court referred the case to the Honorable Martin C. Carlson, United States Magistrate Judge, for mediation. The parties met with the Magistrate Judge, but ultimately informed the Court that they were unable to reach consensus. Meek Decl. ¶ 4. 9. In January 2011, this Court issued a Memorandum and Order granting summary judgment for Plaint iffs and th e Class and denyi ng DPW's motion for summary judgment. Benjamin v. Dep't of Public Welfare , Civil Action No. 09-cv1182, 2011 WL 1261542 (M.D. Pa. J an. 27, 2011). The Court declared that DPW violated the ADA's and RA' s integration m andates. Id. at *9. As the Court observed, there was no dispute that Plain tiffs and class memb ers are appropriate for community placement if they receiv e necessary supports and services. Id. at
4

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*6. The Court furt her found that som e state ICF/MR residents are not opposed to discharge. Id. The Court rejected DPW' s fundamental alteration defense, specifically its presentation of an integra tion "plan" developed on June 18, 2010. Id. at *8-*9. The Court concluded that "b ased upon the plain term s of the Plan," the possibility that class mem bers will be placed in the co mmunity is "quite remote." Id. at *8. Pointi ng to t he Plan's provision tha t gave DPW "broad authority" to use funding received unde r the Plan to serve people who are not institutionalized, rather than class m embers, the Court explained: "[T] hose who are currently receiving no services should have the opportunity to acquire supports; but within the dictates of the law DPW cannot continue to ensure this by relegating institutionalized individuals to second-class status in order to avoid subjecting any new individuals to the same segregation." Id.
10. Although the Court held that DPW violated the ADA' s and RA' s integration mandate, it did not rule on the remedy. Benjamin, 2011 WL 1261542 at *10. At the Court' s suggestion, the par ties agreed to return to m ediation with Magistrate Judge Carlson to attempt to resolve that issue. Meek Decl. ¶ 5.
11. The parties met in person twi ce with Magistrate Judge Carlson for extensive, arms-length negotiations and subsequently continued those discussions on their own. Meek Decl. ¶ 6. Those negotiations yielded the Settlement Agree-
5

Case 1:09-cv-01182-JEJ Document 105 Filed 05/26/11 Page 6 of 16
ment (Agreement), id. ¶ 7, a copy of which is subm itted as Exhibit 2. The key provisions of the Agreement are summarized as follows:
a. Identification of Class Members -- DPW will create a Planning List that includes all state ICF/MR reside nts who are not opposed to discharge. Agreement § III.1. To determine who is on this list, DPW' s Office of Developmental Programs (ODP) will assess opposi tion to discharge by residents, their involved families, and guard ians no later than Septem ber 30, 2011 and at least annually thereafter. Id. § III. 2.1 These assessments will be undertaken by the residents' social workers or Comm unity Transition Specialists and the Facility Advocates based on discussi ons with the residents and t heir involved fam ily or guardian. Id. § III.2.a. 2 State ICF/MR residents who do not express a preference for discharge will be placed on the Planning List unless th ey have involved family or guardians who are opposed. Id. § III.2.b. State ICF/MR residents who express a preference for community pl acement will be placed on the Planning List unless they have guardians who oppose such placement. Id. § III.2.c.
1 The Agreement defines "involved fa mily" to be fam ily members who are designated in the state ICF/MR resident' s records as their substitute decision makers. Agreement § II.13. A "guardian" is a pe rson appointed by a court pursuant to Pennsylvania law to serve as a state ICF/MR resident' s guardian of the person. Id. § II.12.
2 "Facility Advocates" are individuals em ployed by the Disability Rights Network of Pennsylvania (DRN), Plainti ffs' counsel, and assigned to each of the state ICFs/MR to advocate for residents. Agreement § II.10.
6

Case 1:09-cv-01182-JEJ Document 105 Filed 05/26/11 Page 7 of 16
b. Education about Community Placement Options -- To assure that state ICF/MR residents and their in volved families and guardians have access to appropriate information ab out community options, DPW will establish a Community Partnership Steering Comm ittee (Committee) to develop and implement a program to provi de information. Agreement § IV.1. The Co mmittee will develop a training curriculum and offer trainings to residents and their families and guardians at the state ICF s/MR, in the community during the course of the Agreement, and on DPW' s website. Id. § IV.1.c. The Committee will also distribute written inform ation about co mmunity placement options and offer opportunities to visit community placements. Id. §§ IV.1.e, IV.1.f. In addition, DPW will develop and im plement a plan to offer one-to-one outreach to state ICF/MR residents and their involved fam ilies and guardians. The outreach will be conducted by fam ily members of individua ls with intellectual disabilities who currently live in the co mmunity. Id. § IV.2. After these tr aining and outreach events, state ICF/MR residents, their invol ved families, and their guardians will be offered the opportunity to change thei r position on comm unity placement, and the Planning List will be amended to reflect any such changes. Id. § IV.3.
c. Integration Plan -- DPW will develop and im plement an Integration Plan to provide community placements to: (1) at least 50 persons on the Planning List in Fiscal Year (FY) 2011-12; (2) at least 75 persons on the
7

Case 1:09-cv-01182-JEJ Document 105 Filed 05/26/11 Page 8 of 16
Planning List in FY 2012-13; (3) at least 100 persons on t he Planning List in FY 2013-14; (4) at least 100 persons on t he Planning List in FY 2014-15; and (5) at least 75 persons on the Planning List in FY 2015-16 and each fiscal year thereafter until all persons on the Planning List have been discharged. Agreement § V.1.3
d. Status Reports -- To assure that the Agreement is being implemented, DPW will provide to Plaintiffs' counsel periodic status reports. Agreement §§ VI.1, VI.2.
e. Enforcement and Jurisdiction -- If the Court grants fi nal approval to the Agreement, it will retain continuing jurisdiction over the case fo r purposes of interpretation and enforcem ent of the Agreement. Agreement § VII.5. Plaintiffs may seek the remedy of specific perform ance, but not contempt sanctions, if Defendants fail to co mply with the term s of the Agreemen t. Id. §§ VII.2, VII.3. Plaintiffs will not file a m otion for specific performance unless and until they give DPW 30-days' notice of the alleged violation and offer to meet with DPW to discuss resolution of the dispute. Id. § VII.2.
3 The Agreement allows DPW to dive rt funding appropriated and allocated to implement the Integration Plan to prov ide community services for no m ore than five persons living in the co mmunity who are at imminent risk of insti tutionalization. Agreement § V.5. To t he extent DPW does so, it must increase the number of state ICF/MR residents to receive comm unity services in th e following fiscal year. Id.
8

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f. Termination of the Agreement -- The Agreement will terminate 90 days after the provision of a community placement to the last person on the Planning List. Agreement § VII.6.
g. Attorneys' Fees, Litigation Expenses, and Costs -- Defendants will pay to Plaintiffs' counsel, subject to the Court's approval pursuant to Federal Rule of Civil Procedure 23(h), the su m of $432,500 for attorneys' fees, litigation expenses, and costs incurred through the final approval of the Settlem ent Agreement by this Court. Agreement § VII.7.
12. Plaintiffs request that the Court preliminarily approve the propose d Settlement Agreement. “#[I]f the proposed settlement a ppears to be the product of serious, informed, non-collusive negotiations, has no obvi ous deficiencies, does not improperly grant preferential treatment to class representatives or seg ments of the class, and falls within the range of possible approval, t hen the [C] ourt [will] direct that ... notice be given to the cl ass members of a formal fairness hearing. &” Kaplan v. Chertoff, Civil Action No. 06-5304, 2008 WL 200108 at *11 (E.D. Pa . Jan. 24, 2008) (citation om itted); see also Hanlon v. Aramark Sports, LLC , Civil Action No. 09-465, 2010 WL 274765 at *5 (W.D. Pa. Feb. 3, 2010); Mehling v. New York Life Ins. Co. , 246 F.R.D. 467, 472 (E.D. Pa. 2007). Each of these criteria for preliminary approval of the Settlement Agreement is satisfied.
9

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a. First, the Agreement is the re sult of “serious, inform ed, noncollusive negotiations.” A lthough the parties engaged in settlement negotiations prior to the Court' s issuance of its ru ling that DPW violated the integration mandates, Plaintiffs were unwilling to agree to the offers DPW made at that tim e. Plaintiffs resumed negotiations only after the Court issued its decision, holding that DPW violated the ADA's and RA's integra tion mandate. The parties' subsequent negotiations were inform ed not only by the Court' s ruling, but also by extensive fact and expert disc overy. The parties me t twice in person with Magistrate Judge Carlson and then continued negotia tions through telephone and email communications. See Meek Decl. ¶¶ 6, 8
b. Second, the Agreement does not give preferential treatment to the class representatives or any particular segments of the class. All class members are treated equally. See Kaplan, 2008 WL 200108 at *11.4
c Finally, the Agreement falls within the range of possible approval analyzed in accord ance with the criteria s et forth by the Third Circuit’s decision in Girsh v. Jepson, 521 F.3d 153, 157 (3d Cir. 1975), and its progeny. See
4 The Agreement provides that the na med Plaintiffs will be placed on the Planning List immediately. Agreement § III.3. This doe s not give Plaintiffs preferential treatment, but m erely recognizes that there is no need to assess their opposition to com munity placement since they have already expressed their preference for such placement. Immediate placement on the Planning List does not assure that the named Plaintiffs will re ceive community services ahead of other persons who will join that list through the evaluation process.
10

Case 1:09-cv-01182-JEJ Document 105 Filed 05/26/11 Page 11 of 16

In re AT & T Corp. , 455 F.3d 160, 164-65 (3d Cir. 2006); Kaplan, 2008 WL

200108 at *11.

(1)

The complexity, expense, and likely duration of the

litigation weigh in favor of ap proval. This case was filed nearly two years ago .

Although Plaintiffs have secured a judg ment as to liabili ty, a remedy hearing

would take additional time. More significantly, DPW w ould have likely appealed

and Plaintiffs might have appealed if a remedy devised by the Court was not

adequate. See Bradburn Parent Teacher Store, Inc. v. 3M (Minnesota Mining &

Mfg. Co.), 513 F. Supp. 2d 322, 330-31 (E.D. Pa. 2007).

(2)

The stage of proceedings weighs in favor of the

Agreement. Plaintiffs not only com pleted discovery, but they secured a liability

judgment. Plaintiffs and their counsel had the knowledge they needed to assess the

effectiveness of potential remedies an d to make an informed decision about

whether the Agreement provided Plaintiffs and class mem bers with an adequate

remedy for DPW' s violations of the law. See Kaplan, 2008 WL 200108 at *11;

Bradburn Parent Teacher Store, Inc., 513 F. Supp. 2d at 331-32.

(3)

The risks of establishing liability neither favor nor

disfavor the Agreement. Plaintiffs ha ve established liabil ity. Although DPW

could challenge that ruling on appeal, it woul d be unlikely to prevail in light of the

Court of Appeals' precedent. DPW wou ld have to secure a wr it of certiorari from

11

Case 1:09-cv-01182-JEJ Document 105 Filed 05/26/11 Page 12 of 16

the Supreme Court review to have any possibility of overturning the liability

judgment, which would be unlikely.

(4)

Plaintiffs, however, had to consider the risk that they

would not be able to secure greater reli ef than that afforded by the Agreemen t,

which provides Plaintiffs with m uch of the relief they sought. The Agreemen t

closely tracks the relief requested by Plaintiffs in their summary j udgment motion,

including most critically establishing a co mprehensive, multi-year Integration Plan

with timelines and benchm arks to develop community placements for at least 400

class members in the first five years. Given ev idence that indicated there are

approximately 300 state ICF/MR residents who are not opposed and whose fam ily

or guardians are not opposed to discharge, it may be that most class members will

receive community services within five year s. Meek Decl. ¶ 9. It is questionabl e

whether the Court would ha ve been w illing to order D PW to re quire more

community placements at a faster pace gi ven DPW's likely arguments that it could

not do so in li ght of current budget cons traints and the administrative burdens of

developing new community services. Moreover, DPW has already begun t o

implement the Agreement, thus affording Plaintiffs and clas s members relief far

sooner than any relief they might secure following further litigation in this Court

and subsequent appeals that could take se veral years. Accordingly, the benefits

12

Case 1:09-cv-01182-JEJ Document 105 Filed 05/26/11 Page 13 of 16
afforded by the Agreement far outweigh the potential risks of seeking further relief through continued litigation.
(5) The range of reasonableness of the settlement in light of the best p ossible recovery an d the risks of litigation also weighs in favor of approval. The benefits conf erred by the Agreement co mpare favorably to the best possible recovery that Plaintiffs could ha ve secured. The Ag reement provides the Plaintiffs and class members with almost all of the relief that they ultimately co uld have secured if the Court, usi ng its disc retion to shape injunctive relief, afforded the Plaintiffs all of t he relief they ha d sought and the appella te court upheld t he remedy. Given the attendant risks of liti gation (including, but not lim ited to, the delays that would a ccompany further litigation and appeals), the Agreement’s benefits to class members are significant.
13. Rule 23(e)(1) requires th at “[t]he court must direct notice in a reasonable manner t o all class members who would be bound by the proposal.” The Court shoul d consider both the method of dissemination and its content to determine whether the notice is sufficient. Kaplan, 2008 WL 200108 at *11.
a. The parties propose to notify t he state ICF/MR residents and their involved fam ilies and guardians through indivi dual notice i n the form submitted as Exhibit 3. The notice su mmarizes the litigation and the term s of the Agreement (including the provision relati ng to attorneys’ fees); inform s potential
13

Case 1:09-cv-01182-JEJ Document 105 Filed 05/26/11 Page 14 of 16
class members about the fairness heari ng and their right to object to the Agreement; affords them information about how to re ceive a copy of t he Agreement; and provides information about how to contact class counsel. The content of the notic e is thus sufficient. See Kaplan, 2008 WL 200108 at *12; Bradburn Parent Teacher Store, Inc., 513 F. Supp. 2d at 329.
b. Notice will be provided in the following manner: (1) No later than four (4) weeks after the Court approves the
notice, the Facility Advocates at each of the state ICFs/MR, who are employed by Plaintiffs' counsel, will hand deliver copi es of the written notice to all state ICF/MR residents. The Facility Advocates will be able to answer any questions and allay any fears that might arise with the delivery of a legal notice.
(2) No later than four (4) weeks after the Court approves the Notice, DPW will assure that the notice is delivered by first class mail, postage prepaid to all involved family members or guardians of state ICF/MR residents.
c. Counsel for Plaintiffs and DPW will file certifications of notice with the Court no later than ten (10) days prior to the date of the hearing on fi nal approval of t he proposed Sett lement Agreement to certify their compli ance with their respective notice obligations.
14. Plaintiffs also request that: (a) th e Court establish a date for the hearing on final approval of the proposed Se ttlement Agreement; (b) that any objec-
14

Case 1:09-cv-01182-JEJ Document 105 Filed 05/26/11 Page 15 of 16

tions to the proposed Settlement Agreement and notices of intention to appear be

submitted no later than fourteen (14) days prior to the hearing date; and (c) that

Plaintiffs’ memorandum of law in suppor t of t he final appr oval of the proposed

Agreement be submitted no later than ten (10) days prior to the hearing date.

WHEREFORE, Plaintiffs respectfully request that the Court grant this

Motion.

Respectfully

submitted,

Dated: May 26, 2011
Robert Mark Robin Disability 1315 Philadelphia, 215-238-8070 215-772-3126

By: /s/ Robert W. Meek
W. Meek - PA 27870 J. Murphy - PA 38564 Resnick - PA 46980
Rights Network of PA Walnut Street, Suite 500
PA 19107-4798
(fax) RMeek@drnpa.org

Counsel

for Plaintiffs and the Class

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Case 1:09-cv-01182-JEJ Document 105 Filed 05/26/11 Page 16 of 16
CERTIFICATE OF SERVICE I, Robert W. Meek, hereby certify th at Plaintiffs' Unopposed Motion for Preliminary Approval of the Class Action Settlement and Approval of Class Notice and proposed Order were filed with th e Court’s ECF system on May 26, 2011 and are available for vie wing and downloading from the ECF system by the following counsel who consented to electronic service:
Doris M. Leisch, Esquire Office of General Counsel Department of Public Welfare 3rd Floor West, Health & Welfare Building
Harrisburg, PA 17120
/s/ Robert W. Meek
Robert W. Meek

 
 Case 1:09-cv-01182-JEJ Document 62 Filed 07/07/10 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FRANKLIN BENJAMIN, by and through his )

next friend, Andreé Yock; RICHARD GROGG )

and FRANK EDGETT, by and through their

)

next friend, Joyce McCarthy; SYLVIA

)

BALDWIN, by and through her next friend

)

Shirl Meyers; ANTHONY BEARD, by and

) Filed via ECF System

through his next friend, Nicole Thurman, on

)

behalf of themselves and all others similarly

) Civ. No. 1:09-cv-1182 (JEJ)

situated,

)

) Class Action

Plaintiffs,

)

)

Complaint filed June 22, 2009

v.

)

)

Judge Jones

DEPARTMENT OF PUBLIC WELFARE

)

OF THE COMMONWEALTH OF

)

PENNSYLVANIA and HARRIET DICHTER, )

in her official capacity as Secretary of

)

Public Welfare of the Commonwealth of

)

Pennsylvania,

)

)

Defendants.

)

_________________________________________ )

BRIEF OF THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

THOMAS E. PEREZ Assistant Attorney General Civil Rights Division United States Department of Justice Attorney for Amicus Curiae, United States of America

By: MARINA MAZOR and SAMANTHA TREPEL Trial Attorneys 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 514-6255

Case 1:09-cv-01182-JEJ Document 62 Filed 07/07/10 Page 2 of 30
TABLE OF CONTENTS Page
INTEREST OF THE UNITED STATES .................................................................1
PRELIMINARY STATEMENT ...............................................................................2
ARGUMENT .............................................................................................................6
I. THE UNNECESSARY SEGREGATION OF INDIVIDUALS WITH DISABILITIES IN INSTITUTIONS IS A FORM OF DISCRIMINATION PROHIBITED BY THE ADA, SECTION 504, AND THEIR IMPLEMENTING REGULATIONS ...............................6
II. DEFENDANTS’ UNJUSTIFIED SEGREGATION OF PLAINTIFF CLASS MEMBERS VIOLATES THE ADA AND SECTION 504 ...............................................................................................12
A. Plaintiff Class Members Are Qualified for Community Services................................................................................................ 12
B. Defendants Can Make a Reasonable Modification to Their Service Systems Without Fundamentally Altering Defendants’ Programs .........................................................................12
1. Defendants May Not Assert a Fundamental Alteration Defense Because They Have No Comprehensive, Effectively Working Olmstead Plan ...............................................................................14
2. Any Cost-Based Fundamental Alteration Argument Must Fail…20
CONCLUSION ........................................................................................................22

Case 1:09-cv-01182-JEJ Document 62 Filed 07/07/10 Page 3 of 30
TABLE OF AUTHORITIES FEDERAL CASES
Alexander v. Choate, 469 U.S. 287 (1985)................................................................ 7 Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184 (E.D.N.Y. 2009) .............................................................................................7, 13, 21 Frederick L. v. Dep’t of Pub. Welfare, 364 F.3d 487 (3d Cir. 2004)....13, 17, 20, 21 Frederick L. v. Dep’t of Pub. Welfare, 422 F.3d 151 (3d Cir. 2005) ...................................................................... 13, 14, 15, 16, 17, 19, 20 Harris v. Pernsley, 820 F.2d 592 (3d Cir. 1987)........................................................1 Olmstead v. L.C. ex rel Zimring, 527 U.S. 581 (1999) ...............4, 10, 11, 12, 13, 14 Pennsylvania Prot. & Advocacy, Inc. v. Dep’t of Pub. Welfare, 402 F.3d 374 (3d Cir. 2005).............................................................14, 17, 19, 20, 21 Wyatt ex rel. Rawlins v. King, 773 F. Supp. 1508 (M.D. Ala.
1991) ................................................................................................................7
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Case 1:09-cv-01182-JEJ Document 62 Filed 07/07/10 Page 4 of 30
FEDERAL STATUTES AND REGULATIONS 29 U.S.C. § 701(b) .....................................................................................................7 29 U.S.C. § 794......................................................................................................1, 4 42 U.S.C. § 12101(a)(2).............................................................................................8 42 U.S.C. § 12101(a)(3).............................................................................................8 42 U.S.C. § 12101(a)(5).............................................................................................8 42 U.S.C. § 12132..................................................................................................4, 9 42 U.S.C. § 12134......................................................................................................9 42 U.S.C. § 12134(b) .................................................................................................9 28 C.F.R. § 0.51 .........................................................................................................4 28 C.F.R. § 35.130(d) ..........................................................................................4, 10 28 C.F.R. § 41 ............................................................................................................4 28 C.F.R. § 41.51(d) ........................................................................................4, 7, 10 28 C.F.R. pt. 35 app. A ........................................................................................9, 10
iii

Case 1:09-cv-01182-JEJ Document 62 Filed 07/07/10 Page 5 of 30
EXECUTIVE AND LEGISLATIVE MATERIALS Exec. Order No. 12250, 45 Fed. Reg. 72995 (Nov. 2, 1980) ....................................7 H.R. Rep. No. 485 (III), 101st Cong., 2d Sess. (1990), reprinted in
1990 U.S.C.C.A.N. ......................................................................................8, 9 S. Rep. No. 116, 101st Cong., 1st Sess. (1989) .........................................................8
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Case 1:09-cv-01182-JEJ Document 62 Filed 07/07/10 Page 6 of 30
INTEREST OF THE UNITED STATES The United States appears as amicus curiae to urge the Court to grant Plaintiffs’ Motion for Summary Judgment on their claims brought under the Americans with Disabilities Act of 1990 (“ADA”) and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”), and to deny Defendants’ Motion for Summary Judgment on Plaintiffs’ claims. The United States is in a unique position to aid the Court in addressing the ADA and Rehabilitation Act issues, as the Department of Justice enforces Title II of the ADA and Section 504. As set forth more fully in the accompanying memorandum in support of the United States’ motion for leave to file a limited brief as amicus curiae, the United States has a special interest in the enforcement of the ADA and Section 504, and in how courts construe the statutes’ protections. Moreover, an amicus filing from an agency charged with enforcement of the statutes at issue can be particularly useful and can “contribute to the court’s understanding” of the issues involved in a lawsuit. Harris v. Pernsley, 820 F.2d 592, 603 (3d Cir. 1987). Additionally, the issues raised in the parties’ cross motions for summary judgment are of great public interest and importance as they implicate the rights of often vulnerable institutionalized persons with intellectual and other developmental disabilities. There is also a strong public interest in eliminating the harm that
1

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attends unnecessary and inappropriate institutionalization. The Department of Justice is charged with protecting and vindicating the civil rights of persons with developmental disabilities pursuant to the statutes. It therefore has a demonstrated interest in this matter.
PRELIMINARY STATEMENT This case is appropriate for summary judgment, as there are no genuine issues of material fact with respect to the arguments contained in the parties’ cross motions. The Court is presented with a purely legal question: Does Defendants’ unnecessary segregation of individuals with disabilities in its public institutions constitute discrimination under Title II of the ADA and Section 504? The Court has before it a record composed of admissions by Defendants and other undisputed evidence demonstrating that individuals with disabilities are inappropriately institutionalized in Pennsylvania’s intermediate care facilities for persons with developmental disabilities (“ICFs/MR” or “state centers”). Defendants Department of Public Welfare (“DPW”) and DPW Secretary Harriet Dichter (collectively “Defendants”), admit that all individuals currently institutionalized in the state ICFs/MR are qualified for community placement. Plaintiffs’ Statement of Undisputed Facts in Support of Plaintiffs’ Motion for Summary Judgment & 45 (Dkt. #49(2)) (“Pl. SUF”). The named plaintiffs, five individuals who have been institutionalized in Pennsylvania’s ICFs/MR for periods
2

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of between twenty and forty-four years, and class members (collectively “Plaintiffs”), do not or would not oppose a community placement if offered. Id. && 1-6 (defining class as all persons who “(1) currently or in the future will reside in one of Pennsylvania’s [ICFs/MR]; (2) could reside in the community with appropriate services and supports; and (3) do not or would not oppose community placement”). Indeed, it is undisputed that at least three of the named plaintiffs affirmatively wish to live in the community, and their involved family members support that choice. Id. && 53-60.
In contravention of the Commonwealth’s stated policy to provide individuals with developmental disabilities services in the community, id. & 50, Defendants have unnecessarily segregated Plaintiffs in institutions and have failed to provide care in the most integrated setting appropriate to their needs: community-based programs. Id. & 52. Specifically, Defendants currently institutionalize approximately 1,200 individuals with developmental disabilities in five state-operated ICFs/MR, while Defendants simultaneously admit that all of these individuals could live in the community, if provided the appropriate supports and services. Id. && 17, 45; Defendants’ Statement of Undisputed Facts in Support of Defendants’ Motion for Summary Judgment ¶ 6 (Dkt. #51(2)) (“Def. SUF”).
3

Case 1:09-cv-01182-JEJ Document 62 Filed 07/07/10 Page 9 of 30
Defendants have failed to offer community services to Plaintiffs. Instead, Defendants provide services in the most segregated setting imaginable: large, congregate institutions. Pl. SUF & 52. Moreover, the plaintiff class, by definition, does not or would not oppose community placement. Id. & 6. Accordingly, the entire plaintiff class meets the ADA’s criteria for community integration, as announced by the Supreme Court in Olmstead v. L.C. ex rel Zimring, 527 U.S. 581, 601-03 (1999) (plurality opinion). Yet, these qualified and unopposed individuals remain segregated in the Commonwealth’s institutional facilities in violation of federal law.
This unnecessary segregation is a form of discrimination prohibited by Title II of the ADA, Section 504, and their implementing regulations. See 42 U.S.C. § 12132; 29 U.S.C. § 794; 28 C.F.R. §§ 0.51, 35.130(d), 41, 41.51(d); Olmstead, 527 U.S. at 598-01.
Defendants’ attempt to justify their unlawful discrimination is without merit. DPW funds an array of community-based services and supports for individuals with developmental disabilities. Pl. SUF & 28. Yet individuals institutionalized in state centers are significantly more likely to leave those centers through death than through community placement. Id. &¶ 20, 22 (noting that, in fiscal years 2004-09, 200 residents died while only 54 received community placements). Less than two weeks before filing their own motion for summary
4

Case 1:09-cv-01182-JEJ Document 62 Filed 07/07/10 Page 10 of 30
judgment, Defendants adopted “The Plan – Supporting People Who Currently Reside in State Centers Who Want To Move To the Community” (“Plan”). Even Defendants acknowledge that their eleventh-hour Plan contains almost none of the hallmarks that the Supreme Court and Third Circuit deem necessary for an adequate Olmstead Plan, and an adequate Plan is a prerequisite to asserting a defense to the State’s discrimination. See Section II.B.1, infra; Def. Mem., Exh. 4 (Dkt. #51(6)) (“Plan”). Moreover, despite Defendants’ admission that all individuals institutionalized in the state centers could live in the community, the Plan raises a new barrier to deinstitutionalization that is conspicuously absent from the law: a determination that an individual “benefit from such a [community] placement as opposed to staying in the state center.” Defendants’ Memorandum of Law In Support of Defendants’ Motion for Summary Judgment at 14 (Dkt. # 51(7)) (“Def. Mem.”); Plan at 4; Pl. SUF & 43.
Because the Commonwealth excludes individuals institutionalized in state centers from community services and has failed to adopt and implement a realistic, effectively working Olmstead plan, any fundamental alteration defense must fail.
5

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ARGUMENT I. THE UNNECESSARY SEGREGATION OF INDIVIDUALS WITH
DISABILITIES IN INSTUTITONS IS A FORM OF DISCRIMINATION PROHIBITED BY TITLE II OF THE ADA, SECTION 504, AND THEIR IMPLEMENTING REGULATIONS It is undisputed that individuals with developmental disabilities have long been inappropriately institutionalized in Pennsylvania’s state centers and have a right to be served in the most integrated settings appropriate to their needs.1 Defendants concede that each of the approximately 1,200 individuals institutionalized in the state centers is qualified for placement in the community, and that many of these individuals either are not opposed to moving to the community or would not be opposed if fully informed about community programs. As set forth infra, by failing to serve qualified individuals with disabilities in the most integrated setting appropriate to their needs, Defendants are violating the ADA and Rehabilitation Acts’ prohibition on disability-based discrimination. The relief Plaintiffs are seeking under the ADA and Rehabilitation Act merely requires Defendants to act on their own stated policies and serve individuals with developmental disabilities in the most integrated setting appropriate to their needs.
1 Community-based programs are the most integrated settings because they are physically located in the mainstream of society and provide opportunities for people with disabilities to interact with their non-disabled peers in all facets of life. In contrast, institutional settings are segregated environments because residents are separated from the community and walled off from the mainstream of society.
6

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Nearly four decades ago, Congress recognized that society historically has discriminated against people with disabilities by unnecessarily segregating them from their family and community; in response, Congress enacted Section 504. The sponsors of that legislation condemned the “invisibility of the handicapped in America,” and introduced bills responding to the country’s “shameful oversights” that caused individuals with disabilities “to live among society ‘shunted aside, hidden, and ignored.’” Alexander v. Choate, 469 U.S. 287, 296 (1985) (citation omitted). The purpose of the statute was “to maximize” the “inclusion and integration [of individuals with disabilities] into society.” 29 U.S.C. § 701(b).
Following the passage of the Rehabilitation Act, President Carter directed the Attorney General to issue regulations coordinating the implementation of Section 504 by executive agencies. Exec. Order No. 12250, 45 Fed. Reg. 72995 (Nov. 2, 1980). One of those regulations mandated that recipients of federal financial assistance “administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons.” 28 C.F.R. § 41.51(d).
Wyatt ex rel. Rawlins v. King, 773 F. Supp. 1508, 1512 (M.D. Ala. 1991); see also Disability Advocates, Inc., 653 F. Supp. 2d 184, 199-203, 207 (E.D.N.Y. 2009) (“DAI”); Pl. SUF &¶ 51-52, 135-39.
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More than fifteen years later, Congress acknowledged that the Rehabilitation Act had not fulfilled the “compelling need . . . for the integration of persons with disabilities into the economic and social mainstream of American life.” S. Rep. No. 116, 101st Cong., 1st Sess. 20 (1989). In response, in 1990, Congress passed the ADA to “continue to break down barriers to the integrated participation of people with disabilities in all aspects of community life.” H.R. Rep. No. 485 (III), 101st Cong., 2d Sess. 49-50 (1990), reprinted in 1990 U.S.C.C.A.N. 472-73.
The ADA begins with congressional findings and purposes detailing the reasons for the statute. Specifically, Congress found that “institutionalization” is one of the “critical areas” in which discrimination against individuals with disabilities persists. 42 U.S.C. § 12101(a)(3). It further 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). These discriminatory practices continue today through “outright intentional exclusion” and “segregation.” 42 U.S.C. § 12101(a)(5). In the ADA, Congress first expressly recognized that the “segregation” of persons with disabilities constitutes “discrimination.” 42 U.S.C. § 12101(a)(3), (a)(5).
Individuals with disabilities who are segregated behind institutional walls are not integrated within society at large and are unable to interact with non-
8

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disabled persons to the fullest extent possible. Indeed, segregation of individuals into institutions “relegates persons with disabilities to second-class status.” 28 C.F.R. pt. 35 app. A at 449-50 (Preamble to Regulation on Nondiscrimination on the Basis of Disability in State and Local Government Services) (1994); accord H.R. Rep. No. 485 (III), 101st Cong., 2d Sess. 56 (1990), reprinted in 1990 U.S.C.C.A.N. 479.
Consistent with the goal of comprehensive integration, Title II of the ADA prohibits state and local governments from discriminating against people with disabilities in the provision of public services. 42 U.S.C. § 12132. Specifically, Title II mandates 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.
In 42 U.S.C. § 12134, Congress directed the Attorney General to promulgate regulations implementing this general mandate. See H.R. Rep. No. 485 (III), 101st Cong., 2d Sess. 52 (1990), reprinted in 1990 U.S.C.C.A.N. 475. Congress specified that the Attorney General’s Title II ADA regulations “shall be consistent with this act [the ADA] and with the coordination regulations . . . applicable to recipients of Federal financial assistance” under Section 504. 42 U.S.C. § 12134(b). Most pertinent here, this included the requirement that state and local
9

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governments receiving federal financial assistance “administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons.” 28 C.F.R. § 41.51(d).
With the integration regulation, the Attorney General established that a state’s provision of services in an unnecessarily segregated setting constitutes unlawful disability-based discrimination. 28 C.F.R. § 35.130(d); Olmstead, 527 U.S. at 592. The Attorney General has explained that “the most integrated setting appropriate” means “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.” 28 C.F.R. pt. 35 app. A at 452.
Pursuant to these statues and regulations, the Department of Justice has consistently maintained that unnecessary institutionalization qualifies as discrimination by reason of disability. Because the Department is the agency directed by Congress to issue regulations implementing Title II, the Supreme Court has determined that “its views warrant respect” and that the courts may properly look to the agency’s views for “guidance.” Olmstead, 527 U.S. at 597-98.
In Olmstead, the Supreme Court affirmed the Attorney General’s construction of the ADA’s anti-discrimination provision, holding that “[u]njustified isolation . . . is properly regarded as discrimination based on disability.” Id. at 597. The Court recognized that such segregation is a form of
10

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discrimination because the institutionalization of persons who can benefit from community settings “perpetuates unwarranted assumptions that persons so isolated are incapable or untrustworthy of participating in community life” and because “confinement in an institution severely diminishes the everyday life activities of individuals.” Id. at 600-01.
A violation of the integration mandate occurs where the institutionalized individual is “qualified” for community placement – that is, he or she can “handle or benefit from community settings,” and the affected individual does not oppose community placement. Id. at 601-03. The Court stressed that states “are required” to provide community-based treatment for qualified persons who do not oppose such treatment unless the state can establish an affirmative defense. Id. at 607.
Particularly where, as here, a state has admitted that all individuals currently institutionalized in segregated institutions could be served in integrated, community-based settings, the ADA’s mandate against unnecessary segregation should be given full effect. The Commonwealth’s continued segregation of these individuals, particularly in light of the undisputed facts in this case, constitutes unlawful disability-based discrimination and must be remedied.
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II. DEFENDANTS’ UNJUSTIFIED SEGREGATION OF PLAINTIFF CLASS MEMBERS VIOLATES THE ADA AND SECTION 504
A. Plaintiff Class Members Are Qualified for Community Services It is undisputed that all of the individuals institutionalized in the
Commonwealth’s state centers are qualified for community integration. Further, all members of the plaintiff class, by definition, do not oppose a community placement.2 Pl. SUF & 6. The entire class therefore meets the ADA and Olmstead criteria for community integration. Yet, these qualified individuals who do not oppose placement remain inappropriately institutionalized and segregated in Pennsylvania’s state centers. B. Defendants Can Make a Reasonable Modification to Their Service Systems
Without Fundamentally Altering Defendants’ Programs The ADA and Section 504’s integration mandate requires public entities to make reasonable modifications to their service systems to enable individuals with disabilities to receive services in integrated, community-based settings unless

2 The exact number of class memb ers is unclear in the record. The

Department of Justi ce has learned from years of experience enforcing the ADA

and integration mandate, however, that, as individuals with disabilitie s and their

family members learn about comm unity-based services and supports, initial

apprehension about community placements often di sappears. See also Pl. SUF &

70; Plaintiffs’ Motion for Summary Judgm

ent, Exhibit 5 (Dkt. #48)

(acknowledging that it is “possible to overcome oppositi on of many fam ily

members to discharge of their relatives in state ICFs/MR through effective

education about community programs”).

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doing so would constitute a fundamental alteration of the entities’ programs. Olmstead, 527 U.S. at 595-97, 603; Frederick L. v. Dep’t of Pub. Welfare, 422 F.3d 151, 157 (3d Cir. 2005) (“Frederick L. II”); Frederick L. v. Dep’t of Pub. Welfare, 364 F.3d 487, 492 n.4 (3d Cir. 2004) (“Fredrick L. I”); Benjamin v. Dep’t of Pub. Welfare, No. 09-1182, 6-7 (M.D. Pa. Jan. 25, 2010 Order Denying Motion to Dismiss) (Dkt. #38) (“Order Denying Motion to Dismiss”); Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184, 268-69 (E.D.N.Y. 2009) (“DAI”); 28 CFR § 35.130(b)(7). The burden of establishing a fundamental alteration is on the defendant. Olmstead, 527 U.S. at 603; Frederick L. I, 364 F.3d at 492 n.4; Order Denying Motion to Dismiss at 6-7; DAI, 653 F. Supp. 2d at 301, n.890.
Here, it is undisputed that Defendants can make a reasonable modification to their existing services by providing the institutionalized class members with access to community services, just as Defendants already provide access to those same services to non-institutionalized individuals with similar needs. Defendants cannot assert a fundamental alteration defense to this reasonable modification because they do not have a comprehensive, effectively working Olmstead plan. In any event, any cost-based fundamental alteration defense must fail.
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1. Defendants May Not Assert a Fundamental Alteration Defense Because They Have No Comprehensive, Effectively Working Olmstead Plan
Defendants may not assert a fundamental alteration defense because they have no comprehensive, effectively working Olmstead plan. As the Olmstead plurality explained, a state can establish a fundamental alteration defense by demonstrating that it has “a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that move[s] at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated.” Olmstead, 527 U.S. at 605-06. Indeed, the Third Circuit definitively requires a state to develop and implement an adequate Olmstead integration plan, with specific time frames and benchmarks for discharge, to establish a fundamental alteration defense. Pennsylvania Prot. & Advocacy, Inc. v. Dep’t of Pub. Welfare, 402 F.3d 374, 381 (3d Cir. 2005) (“[T]he Court’s Olmstead opinion allows for a fundamental alteration defense only if the accused agency has developed and implemented a plan to come into compliance with the ADA and RA[Rehabilitation Act].”) (emphasis added); Frederick L. II, 422 F.3d at 157-58 (requiring time frames and benchmarks). Five years after these rulings involving DPW, and eleven years after the Supreme Court decided Olmstead, Defendants still have no comprehensive, effectively working Olmstead plan.
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Defendants argue that their Plan, hastily assembled at the eleventh hour, amounts to an adequate Olmstead plan, enabling them to avail themselves of the fundamental alteration defense. Def. Mem. at 11-16. Defendants’ Plan, however, does not come close to the comprehensive, effectively working plan required by Olmstead and the Third Circuit. As discussed below, Defendants’ Olmstead Plan fails because: (1) on its face, the Plan lacks even the minimal required components; (2) the Plan fails to demonstrate the requisite commitment to integration; and (3) Defendants have not implemented the Plan.
First, the Third Circuit requires that, on its face: a viable integration plan at a bare minim um should specify the time-fram e or target date for patient discharge, the approxim ate number of patients to be discharged each time period, the eligibility for discharge, and a general description of the collaboration required between [agencies] . . . to e ffectuate integration into the community.
Frederick L. II, 422 F.3d at 157. At the outset, as Defendants readily acknowledge, the Plan lacks any time
frames or target dates for discharge – critical elements of an adequate Olmstead plan. See id.; Def. Mem. at 7, 13 n.4; Def. SUF ¶ 38. Instead, the Plan provides just the opposite – a target starting date of July 2011 – more a year after adoption, before which no discharges will occur under the Plan. Plan at 2, 5. Indeed, the Third Circuit previously found fault with DPW when DPW:
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remain[ed] silent as to when, if ever, eligible [residents] can expect to be discharged . . . . General assurances and good-faith intentions neither meet federal law nor a patient’s expectations . . . . [T]h ey are s imply insufficient guarantors in li ght of the hardship daily inflicted upon patients through unnecess ary and indefinite institutionalization.
Frederick L. II, 422 F.3d at 156, 158 (vacating district court ruling in favor of
DPW where, as here, Defendants “refuse[d] to accept verifiable benchmarks or timelines as necessary elements of an acceptable plan”).3
Additionally, and again contrary to the Third Circuit’s minimal
requirements, the Plan fails to provide a general description of the collaboration
required between agencies to effectuate community integration. See Frederick L.
II, 422 F.3d at 157, 160. At most, the Plan envisions coordination between several
entities for the creation of budget plans, but it altogether fails to address any
coordination regarding the integration of institutionalized individuals into the
community. See Plan at 4.
Second, as evidenced by this lack of specificity on the face of the Plan and
broad exceptions that render the Plan meaningless, Defendants have failed to
3 Defendants’ assertion that they have not included timelines for discharge because they do not know how many institutionalized residents will move to the community defies logic because, in the same Plan, Defendants state that they will attempt to place 50 institutionalized residents in the community annually. See Def. Mem. at 13 n.4; Def. SUF ¶ 38; Plan at 2-3, 5.
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demonstrate any commitment to integration. In recent years, the Third Circuit repeatedly has emphasized the critical importance of this element. That court has repeatedly vacated district court rulings holding that DPW had established a fundamental alteration defense, where, as here, Defendants failed to show a tangible commitment to action toward deinstitutionalization for which they can be held accountable. Frederick L. II, 422 F.3d at 156-57 (vacating district court ruling in favor of DPW where the fundamental alteration defense was premised on vague assurances of future deinstitutionalization rather than “a plan that adequately demonstrates a reasonably specific and measurable commitment to deinstitutionalization for which DPW may be held accountable”); Pennsylvania Prot. & Advocacy, 402 F.3d at 381, 382-83 (vacating district court ruling in favor of DPW and other Commonwealth defendants where the Commonwealth’s fundamental alteration defense was premised solely on the basis of its analysis of budgetary constraints and failed to require the Commonwealth to demonstrate “‘ongoing progress toward community placement’ under the general plan” and “a reviewable commitment to action”); Frederick L. I, 364 F.3d at 500-01 (“Frederick I”) (vacating district court ruling in favor of DPW where Defendants did not demonstrate “a commitment to action in a manner for which it can be held accountable by the courts.”).
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In direct contravention of these standards, Defendants’ last-minute Plan is riddled with exceptions and loopholes. The Plan explicitly: continues DPW’s current discriminatory practice of prioritizing non-institutionalized individuals for placement; conditions community placement upon the availability of funding; provides DPW with broad authority to direct that the money actually obtained for placing institutionalized residents in the community instead be used to support non-institutionalized individuals in community settings; and provides that DPW merely will “ask the Governor to seek funding” to place 50 institutionalized residents in the community, rather than actually committing to place those residents in the community. See Plan at 1, 3-5; Def. Mem. at 14-15; Def. SUF ¶¶ 45-46. These provisos render the Plan effectively meaningless.
Inexplicably, Defendants argue that eliminating these loopholes would result in a fundamental alteration of their current scheme of discrimination. See Def. Mem. at 8-9, 14-15; Def. SUF ¶ 46. As the Third Circuit has cautioned Defendants previously, however, this disingenuous argument wholly undermines the purpose of the integration mandate:
A state cannot meet an a llegation of noncom pliance simply by replying t hat compliance would be too costl y or would otherwise fundamentally alter its noncomplying programs. Any program that runs afoul of the integration mandate would be fundamentally altered if brought int o compliance. Read this broadly, the fundamental
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alteration defense would swallow the integration mandate whole. Pennsylvania Prot. & Advocacy, 402 F.3d at 381. Finally, DPW has failed to implement its Plan, despite the fact that implementation of an Olmstead Plan is critical to the Third Circuit. See Pennsylvania Prot. & Advocacy, 402 F.3d at 381 (“[T]he only sensible reading of the integration mandate consistent with the Court’s Olmstead opinion allows for a fundamental alteration defense only if the accused agency has developed and implemented” an Olmstead plan) (emphasis added); Frederick L. II, 422 F.3d at 158 (vacating judgment for the Defendants where “DPW inexplicably failed to implement any plan for the first designated year” and DPW’s “post-remand submissions lacked any commitment to implement the [plans] in whole or in part”). Defendants not only acknowledge that they have failed to implement their Plan thus far, but they also announce that they have no intention of implementing it until at least July 2011. Def. Mem. at 15; Plan at 2, 5. Defendants instead point to what they call their “long history” of moving individuals into community placements. Def. Mem. at 15. Defendants’ own numbers, however, establish that Defendants’ history of moving individuals into the community is strikingly lacking; indeed, they have placed only 54 institutionalized residents – not even 5%
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of their current population – in community settings in the past five fiscal years. Def. Mem. at 15; Plan at 2. Moreover, even if Defendants could proffer a significant history of deinstitutionalization, the Third Circuit has determined that “‘it [is] unrealistic (or unduly optimistic) [to] assume past progress is a reliable prediction of future programs.’” Pennsylvania Prot. & Advocacy, 402 F.3d at 384 (quoting Frederick L. I, 364 F.3d at 500) (alterations in original)); see also Frederick L. II, 422 F.3d at 156.
2. Any Cost-Based Fundamental Alteration Argument Must Fail Because Defendants have failed to establish a commitment to action in a comprehensive, effectively working Olmstead plan, they cannot make out, let alone prevail on, a fundamental alteration defense. Accordingly, any budgetary considerations for a fundamental alteration defense are irrelevant. See Pennsylvania Prot. & Advocacy, 402 F.3d at 384 n.9 (“[A] commitment to action is a precondition to the assertion of a fundamental alteration defense. . . . Only when DPW can demonstrate this does its budgetary argument become a relevant factor in the consideration of its fundamental alteration defense.”). Notably, Defendants agree that a cost-based fundamental alteration defense is beyond their reach; despite devoting significant pages in their Motion for Summary Judgment and supporting documentation to the costs of community services versus institutionalization, Defendants make no attempt to assert a fundamental alteration
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argument based on cost. See generally Def. Mem., Def. SUF, and accompanying exhibits. This is because any such argument must fail.
Even if the Court were to consider a cost-based fundamental alteration argument, Defendants cannot establish that providing the institutionalized class members with access to community services would result in a fundamental alteration of Defendants’ programs based on cost. Indeed, though relevant, budgetary constraints alone are insufficient to establish a fundamental alteration defense. Pennsylvania Prot. & Advocacy, 402 F.3d at 380-81; Frederick L. I, 364 F.3d at 495-96.
In conducting a fundamental alteration analysis, a court should determine whether providing community services costs substantially less than providing services in an institution, and should consider not only short-term and transition costs, “but also savings that will result if the requested relief is implemented.” See DAI, 653 F. Supp. 2d at 269, 282, 285-86, 291-94, 301 (rejecting defendants’ fundamental alteration defense where serving individuals in the community would not increase costs to the state, and determining that community services would in fact cost less). In DAI, the court endorsed the cost-neutral notion that the state could meet its ADA obligations by redirecting funds currently being spent on institutional care to serve those same individuals in integrated community settings. Id. at 308 (concluding that, because the relief requested would save the state
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money, it would not interfere with the state’s ability to serve others with mental illness).
Under this analysis, any cost-based fundamental alteration argument here must fail. First, it is undisputed that the costs of providing services in the community are significantly lower than the costs of providing services in the Commonwealth’s institutions.4 See Pl. Brief at 27-28; Pl. SUF ¶ 24; Def. Mem. at 6; Def. SUF ¶¶ 26, 28. Second, Defendants acknowledge that they will realize net savings even under their own inadequate Plan beginning in Fiscal Year 2014. Def. Mem. at 7; Def. SUF ¶ 36. Finally, as Plaintiffs note, Defendants could use a costneutral budget process to fund the development of community alternatives for at least some institutionalized residents. Pl. Brief at 27; Pl. SUF ¶¶ 106-07, 110, 111.
CONCLUSION For the foregoing reasons, this Court should grant Plaintiffs’ Motion for Summary Judgment and deny Defendants’ Motion for Summary Judgment on
4 The parties agree that the annual co st of providing services to each institutionalized resident is $240,000, Pl. Brief at 28; Pl. SUF ¶ 24; Def. Mem. at 6; Def. SUF ¶ 26, com pared to a maxi mum annual average of approxim ately $166,000 for each resident most recently discharged from the institutions. Pl. Brief at 28; Pl. SUF ¶ 113; see also Def. SUF ¶ 28 (acknowledging that the average cost of providing services in the comm unity is “much lower than $240,000”); Def. Mem. at 6 . Plaintiffs also assert, and De fendants do not dispute, that the cost of institutional care is expected to increase to $256,000 next year. Pl. Brief at 28; Pl. SUF ¶ 24; see generally Def. Mem; Def. SUF.
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Plaintiffs’ claims. Defendants’ unjustifiable and unnecessary segregation of individuals with disabilities constitutes discrimination under Section 504 and Title II of the ADA.

Respectfully

submitted,
THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General Civil Rights Division
JUDY C. PRESTON Acting Chief Special Litigation Section
s/ Marina Mazor MARINA MAZOR [DC Bar #479952] SAMANTHA TREPEL [DC Bar #992377] Trial Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 514-6255 (202) 514-0212 (fax) marina.mazor@usdoj.gov
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LOCAL RULE 7.8(b)(2) CERTIFICATE I certify under penalty of perjury t hat the Brief of the United States as Amicus Curiae in Support of Plaintiffs ’ Motion for Summary Judgm ent contains 4,872 words (excluding t he Caption, Table of Contents, and Table of Authorit ies) based on the processing system used to prepare the Brief (Word 2007). Executed this 7th day of July, 2010.
/s/ Samantha Trepel
Samantha Trepel

Case 1:09-cv-01182-JEJ Document 62 Filed 07/07/10 Page 30 of 30
CERTIFICATE OF SERVICE
I, Samantha Trepel, hereby certify that the United States’ Motion for Leave
to File a Lim ited Brief as Amicus Curiae, Memorandum in Support of United
States’ Motion for Leave to File a Li mited Brief as Amicus Curiae, Brief of t he
United States as Amicus Curiae, proposed Order, and Certificate of Concurrence
were filed with the Court’s ECF system on July 7, 2010 and are available for
viewing and downloading from the ECF system by the following counsel:
Robert W. Meek Mark J. Murphy Disability Rights Network of PA 1315 Walnut Street, Suite 500 Philadelphia, PA 19107-4705
Stephen F. Gold 1709 Benjamin Franklin Pkwy., 2nd Fl.
Philadelphia, PA 19103
Allen C. Warshaw, Chief Counsel Howard Ulan, Deputy Chief Counsel
Office of General Counsel Department of Public Welfare 3rd Floor West, Health & Welfare Building
Harrisburg, PA 17120
/s/ Samantha Trepel
Samantha Trepel

 
 Case 1:09-cv-01182-JEJ Document 66 Filed 07/14/10 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FRANKLIN BENJAMIN, by and through :

his next friend, Andree Yock; RICHARD

:

GROGG and FRANK EDGETT, by and

:

through their next friend, Joyce McCarthy; :

SYLVIA BALDWIN, by and through her

:

next friend, Shirl Meyers; ANTHONY

:

BEARD, by and through his next friend,

:

Nicole Turman, on behalf of themselves

:

and all others similarly situated,

:

:

Plaintiffs

:

:

v.

:

:

DEPARTMENT OF PUBLIC WELFARE :

OF THE COMMONWEALTH OF

:

PENNSYLVANIA and

:

HARRIET DICHTER, in her official

:

capacity as Secretary of Public Welfare of

:

the Commonwealth of Pennsylvania,

:

:

Defendants

:

Filed via ECF
Civil Action No. 1:09-cv-1182-JEJ (Jones, J.) Class Action

MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

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Case 1:09-cv-01182-JEJ Document 66 Filed 07/14/10 Page 2 of 23
TABLE OF CONTENTS TABLE OF AUTHORITIES ............................................................................................ ii
I. PROCEDURAL HISTORY ....................................................................................1 II. STATEMENT OF THE FACTS............................................................................2 III. STATEMENT OF QUESTIONS PRESENTED ...............................................8 IV. ARGUMENT ..............................................................................................................9
A. Introduction ..........................................................................................................9 B. Pennsylvania’s Plan for Supporting People Who Currently Reside in State Centers Who Want to Move to the Community satisfies the requirements of the Americans with Disabilities Act and the Rehabilitation Act as set forth in Olmstead v. L.C., 527 U.S. 581 (1999) ...10 C. The relief requested by Plaintiffs violates the requirements of the Americans with Disabilities Act and the Rehabilitation Act as set forth in Olmstead v. L.C., 527 U.S. 581 (1999) insofar as they seek to require Defendants to use limited funds to place people who are safe and receiving appropriate services in a State center into a community placement ahead of other mentally retarded persons who are without services and, therefore, at risk of physical or mental injury. .........................177 V. CONCLUSION ........................................................................................................18
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TABLE OF AUTHORITIES Cases Frederick L. v. Dep’t of Public Welfare, 364 F.3d 487 (2004) ......... 10, 12,14 Frederick L. v. Dep’t of Public Welfare, 422 F.3d 151 (2005) ........ 15, 16, 18 Olmstead v. L.C., 527 U.S. 581 (1999) ................................................. passim Shapp v. Sloan, 480 Pa. 449, 391 A.2d 595 (1978). ................................... 14 Statutes 29 U.S.C. § 794............................................................................................... 1 42 U.S.C. § 12132........................................................................................... 1
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I. PROCEDURAL HISTORY Plaintiffs Franklin Benjamin, Richard Grogg, Frank Edgett, Wilson
Sheppard, Sylvia Baldwin, and Anthony Beard initiated this action with the filing of a Complaint on June 22, 2009. With leave, all of the above-named Plaintiffs but Wilson Sheppard (collectively, “Plaintiffs”) filed an Amended Complaint on July 14, 2009.
Plaintiffs are persons with intellectual disabilities who live in and receive services in Pennsylvania’s State-operated intermediate care facilities for persons with mental retardation (“ICFs/MR”). Plaintiffs assert that Defendants’ failure to offer and provide Plaintiffs community alternatives, where appropriate, violates Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 (“ADA”) and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (“Section 504" or “RA”).
On September 2, 2009, the Court granted Plaintiffs’ unopposed Motion to Certify a Class, and certified a class of all persons who: (1) currently, or in the future, will reside in one of Pennsylvania’s ICFs/MR, (2) could reside in the community with appropriate services and supports, and (3) do not or would not oppose community placement. The named Plaintiffs, Benjamin, Grogg, Edgett, Baldwin, and Beard, were named as class representatives.
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Defendants filed a Motion to Dismiss on September 24, 2009, which this Court denied on January 25, 2010. Thereafter, Defendants filed an Answer to the Amended Complaint and discovery proceeded.
Plaintiffs filed a Motion for Summary Judgment on June 23, 2010. Subsequently, the United States filed an amicus brief in support of that motion. This brief is filed in opposition to Plaintiffs’ Motion.
II. STATEMENT OF THE FACTS Many of the material facts in this case are undisputed. One fact
which appears to be disputed however is whether Defendants have a plan for moving individuals presently receiving services in state centers into community placements.1 Whether it is an adequate plan is, of course, a legal question but the Plan’s existence is not – it is a matter of indisputable fact.
On June 18, 2010, Defendants, after due consideration of Plaintiffs’ comments regarding an earlier Plan,2 adopted a new Plan for relocating State center residents who do not oppose, and whose guardians, if any, do not oppose community care, entitled the Plan for Supporting People Who Currently Reside in State Centers Who Want to Move to the Community.
1In their motion and supporting documents, Plaintiffs have simply ignored the existence of the Plan.
2 DPW had adopted an earlier Plan on January 29, 2010. DSUF II, II,¶1.
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Defendants Statement of Undisputed Facts in Opposition to Plaintiffs’ Motion for Summary Judgment (DSUP II), ¶2.3
This Plan has benchmarks for implementation. Annually, Defendants will request that the Governor to ask the General Assembly for funds sufficient to place at least 50 State ICF/MR residents in community placements through the Consolidated waiver. DSUF II, ¶3. Defendants will move the number of residents for whom funding is provided by the General Assembly. The Plan contains no deadline for completing the process because it is unknown at this time how many people will be moved. DSUF II, 3.
Given current financial conditions, it would not be realistic to commit to a higher number. DSUF II, ¶4. Pennsylvania had a $1.2 billion deficit in 2009-10. DSUF II, II, ¶5. Overall, the total amount appropriated in the 2010-11budget is only 1% more than the amount appropriated in the 200910 budget. DSUF II, II, ¶6. The Governor’s proposed budget for fiscal year 2010-11 provided less money for community placements than had been appropriated by the General Assembly in the 2009-10 fiscal year. DSUF II, ¶7. Recognizing that economic conditions will change, the Plan provides
3 Contrary to Plaintiffs’ assertion in its Brief in Opposition to Defendants’ Motion for Summary Judgment, Plaintiffs were specifically advised that the Plan had been adopted by email dated June 18, 2010. DSUF II, ¶38.
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that this number of placements to be requested will be reconsidered as financial conditions change. DSUF II, ¶8.
The Plan then sets forth a process for identifying and prioritizing among those who do not oppose community placement, planning for their placement and moving them into the community as money becomes available. DSUF II, ¶9. Finally, it provides for the development and implementation of educational programs directed at educating residents and their families about the benefits of community placement. DSUF II, ¶10.
The commitment to move people into the community is conditioned upon the availability of the funding necessary to make such placements and a finding by professionals that the resident will benefit from such a placement. DSUF II, ¶11. Additionally, in order to avoid a fundamental alteration to State programs which would favor State center residents over other intellectually disabled people in greater need of services, the Plan gives DPW’s Deputy Secretary for the Office of Developmental Programs the power to direct that money otherwise available to move persons presently residing in State centers into community settings may be used to place other eligible and more needy persons into such settings. This reallocation would only be done if the Deputy Secretary determines (1) that such a person requires such a placement in order to avoid risk of physical or
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mental injury or to avoid placement in a State center and (2) that there is no other money available to make such a placement. DSUF II, ¶12.
The first condition recognizes that DPW cannot spend money that is not appropriated. The second condition is based on the need to provide services fairly to all those persons with mental retardation, given the limited funding available to provide those services.
In this regard, funding is limited because all funds available for both State ICF/MR care and community care are expended for services to persons with mental retardation but those funds have not even been sufficient to provide services for all those in immediate need of services. DSUF II, ¶14, 15. Thus, there is a long waiting list for services. DSUF II, ¶16.
Persons who apply for services are evaluated using an instrument known as “Prioritization of Urgency of Need for Services for Persons with Mental Retardation” (PUNS). DSUF II, ¶17. PUNS places applicants in three categories: emergency (immediate or within the next six months); critical (need within two years); and Planning (need within five years). DSUF II, ¶18. The emergency category includes about 3200 persons. DSUF II, ¶19. In fiscal year 2008-09, the General Assembly appropriated amounts sufficient to fund services for only about 274 persons in the emergency category. DSUF II, ¶20.
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When a community vacancy occurs, it has long been DPW’s policy to give priority to those on the PUNS emergency waiting list over those in State ICFs/MR. DSUF II, ¶21. That is because persons residing in State ICFs/MR are safe and have all their basic needs met while many persons who are categorized as in “emergency” need are generally without needed services and at risk of mental or physical harm if they do not receive services. DSUF II, ¶22. Those on the emergency waiting list include those who are in danger of (1) having no care provided at all (as when family caregivers die) or (2) having grossly deficient care (as when family care-givers become disabled). DSUF II, ¶23.
The Governor's proposed budget for FY 2010-2011 includes a request for funding to serve an additional 150 people on the waiting list. DSUF II, ¶24. Those services can be provided in a residential setting or in day programs. DSUF II, ¶25. Only 50 of the placements included in the Governor’s proposed budget are residential. DSUF II, ¶26. Since almost all those presently residing in State centers will need residential community placements, the remaining 100 are irrelevant to the Plaintiff class. DSUF II, ¶27. Moreover, it is anticipated that all of the residential slots will be needed to meet the emergency needs of persons in the community who are at risk of harm if they do not receive services. DSUF II, ¶27.
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While moving people out of State centers into the community may save money in the long run, it does require the expenditure of additional money for the first several years. DSUF II, ¶28. After a move, DPW incurs the full cost of providing services in the community, but does not realize significant savings at the State center until sometime after the move has been made. DSUF II, ¶¶ 28-29. Even Plaintiffs’ experts concede that it will be at least two years before DPW realizes net savings. DSUF II, ¶30. They estimate that DPW will be required to spend anywhere from $3-6 million in each of the first two years after beginning the process of moving State center residents into the community. DSUF II, ¶31. How long it will actually take before DPW realizes any savings is hotly disputed among the experts. DSUF II, ¶32. 4
4 Plaintiffs’ experts assume that DPW will save the full average cost of each person moved out of a State center within six months after that person is moved. Defendants’ Exhibit 7. Plaintiffs’ expert strongly disagrees. Exhibit 8.
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III. STATEMENT OF QUESTIONS PRESENTED 1. Whether Pennsylvania’s Plan for Supporting People Who Currently Reside in State Centers Who Want to Move to the Community satisfies the requirements of the Americans with Disabilities Act and the Rehabilitation Act as set forth in Olmstead v. L.C., 527 U.S. 581 (1999). 2. Whether the relief requested by Plaintiffs violates the requirements of the Americans with Disabilities Act and the Rehabilitation Act as set forth in Olmstead v. L.C., 527 U.S. 581 (1999) insofar as Plaintiffs seek to require Defendants to use limited funds to place people who are safe and receiving appropriate services in a State center into a community placement ahead of other persons with mental retardation who are without services and, therefore, at risk of physical or mental injury.
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IV. ARGUMENT A. Introduction Plaintiffs’ claims are governed by Olmstead v. L.C., 527 U.S. 581
(1999), in which the United States Supreme Court held, in a plurality opinion, that a State is required to provide community-based services for persons with mental disabilities when “(1) the State’s treatment professionals determine that such placement is appropriate, (2) the affected persons do not oppose such treatment, and (3) the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others.” Id. at 606. However, the Court noted that the integration mandate “is not boundless” and is limited by “reasonable modifications” and “fundamental-alteration” clauses. Id. at 603. Therefore, if a State can prove that integration or modification of its policies and practices would require a fundamental alteration of its services, programs, or activities, it can avoid liability under the mandate for the State’s alleged insufficient integration. See Olmstead, 527 U.S. at 603-607. Olmstead requires that, in evaluating the reasonableness of modification, a court must consider the State’s available resources and responsibilities to other persons with intellectual disabilities. See id. at 604.
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Typically, and in this case, the question is whether the State has an
“Olmstead Plan:”
If, for example, the State were to demonstrate that it had a comprehensive, effectively working Plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated, the reasonable-modifications standard would be met. . . . In such circumstances, a court would have no warrant effectively to order displacement of persons at the top of the communitybased treatment waiting list by individuals lower down who commenced civil actions. Id. at 605-06. DPW has such a plan.
B. Pennsylvania’s Plan for Supporting People Who Currently Reside in State Centers Who Want to Move to the Community satisfies the requirements of the Americans with Disabilities Act and the Rehabilitation Act as set forth in Olmstead v. L.C., 527 U.S. 581 (1999)
In Frederick L. v. Dep’t of Public Welfare, 364 F.3d 487 (2004), the Third Circuit stated that an Olmstead Plan should:
specify the time-frame or target date for patient discharge, the approximate number of patients to be discharged each time period, the eligibility for discharge, and a general description of the collaboration required between the local authorities and the housing, transportation, care, and education agencies to effectuate integration into the community. Id. at 500. DPW’s Plan for Supporting People Who Currently Reside in
State Centers Who Want to Move to the Community meets these criteria.
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Case 1:09-cv-01182-JEJ Document 66 Filed 07/14/10 Page 14 of 23
Specifically, DPW has a Plan in which DPW commits that it will seek funding sufficient to move at least 50 persons who are State center residents into community placements every year. The Plan goes on to commit to provide education about community options, opportunities and benefits to individuals living at the centers and to their families and guardians. The Plan then sets forth a process for identifying and prioritizing among those who do not oppose community placement, planning for their placement and moving them into the community as money becomes available. Finally, it provides for the development and implementation of educational programs directed at educating residents and their families about the benefits of community placements.
There are two provisos to these commitments. First, nobody will be moved from a State center into a community placement if it is determined that that person would not benefit from such a placement as opposed to staying in the State center. Second, the Deputy Secretary for the Office of Developmental Programs may direct that money otherwise available to move persons presently residing in State centers into community settings be used to place other persons into such settings under the following conditions: if the Deputy Secretary determines (1) that such person requires such a placement in order to avoid risk of physical or mental injury or to avoid
11

Case 1:09-cv-01182-JEJ Document 66 Filed 07/14/10 Page 15 of 23
placement in a State center and (2) that there is no other money available to make such a placement.
These two provisos simply recognize two principles clearly established in Olmstead. The first is that the Olmstead requirements do not apply unless the State’s treatment professionals determine that a community placement is appropriate. To say, as Plaintiffs and Defendants agree, that all State center residents can be served in the community is not to say that a State center resident will benefit from a particular placement. The intent and effect of that provision is to ensure that a particular placement will benefit the person being placed. It is not intended to repudiate Defendants’ admission that all persons in State centers can be served in the community.
The second Olmstead principle is that “[a]ny effort to institute fundshifting that would disadvantage other segments of the mentally disabled population would thus fail under Olmstead. 527 U.S. at 604-06.” Frederick L., 363 F.3d at 497. Using limited funds to place a person from a State center into a community placement ahead of another person with mental retardation who is at risk of physical or mental injury or placement in a State center5 would most certainly disadvantage another segment of the mentally
5 Apparently Plaintiffs want DPW to move State center residents into community placements even if the necessary result would be the placement of other persons with mental retardation into State centers in their stead.
12

Case 1:09-cv-01182-JEJ Document 66 Filed 07/14/10 Page 16 of 23
disabled population. It would also cause a fundamental alteration in DPW’s current policy of giving priority to individuals who are at risk in the community priority over those safely residing in State centers.6 Olmstead does not require Defendants to do that.
Unfortunately, because the present Plan was only adopted on June 18, 2010, there is no history of implementation. However, as noted above, DPW has a long history of moving people from State centers into community placements. From 1995 to 2009, the census at State ICFs/MR has decreased from 3164 to1224. DSUF II, ¶35. Today, fewer than 1200 individuals receive services in State centers. DSUF II, ¶36. Since 2000, Defendants have closed four State ICFs/MR, and four MR units on the grounds of State hospitals. DSUF II, ¶37. Thus, there is no reason to question DPW’s commitment to action.
Over the past several years, DPW has focused on providing services to those with immediate needs who were previously without services. However, the Plan commits DPW to bringing the residents of State centers into a community placement process which involves both the creation of
6 Plaintiffs argue that Defendants are not entitled to assert a “fundamental alteration” defense because they do not have a Plan. That, of course, is no longer true.
13

Case 1:09-cv-01182-JEJ Document 66 Filed 07/14/10 Page 17 of 23
new placements and the filling of vacancies, to the extent appropriate vacancies can be found.7
It is also true that the Plan anticipates that DPW will not have funding for new community placements for those in State centers until July of 2011. However, that simply recognizes the reality that the 2010-11 budget has been enacted and includes only limited funds for the kinds of residential placements that those presently in State centers will require – only 50 community residential slots are funded. DSUH II, 27. It is anticipated that all of those slots will be needed to meet the emergency needs of persons in the community who are without services. DSUH II, 28. To change that policy to the detriment of others in greater need of services is not a reasonable modification.
There is no serious dispute that for at least the first 2 or 3 years, DPW would have to expend additional money to move State center residents into the community. However, even if that were not the case, the Third Circuit has rejected exactly these kinds of price comparisons. Frederick L. v. Dep’t of Public Welfare, 364 F.3d at 497.
7 The complexity and the extent of the services required by most of those persons remaining in State centers far exceed the services required by most of those already in community placement. Thus, it is generally difficult to match persons in State centers with vacancies in the community. DSUF II, ¶29.
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Case 1:09-cv-01182-JEJ Document 66 Filed 07/14/10 Page 18 of 23
To the extent amicus and Plaintiffs argue that seeking money for 50 placements from State centers is an inadequate commitment, they ignore several realities. First, DPW cannot spend money that has not been appropriated by the General Assembly. Shapp v. Sloan, 480 Pa. 449, 391 A.2d 595 (1978). Accordingly, since DPW is already using all the money that has been appropriated, it cannot promise to make additional placements for which there is no money appropriated.
Second, given current financial conditions, it would not be realistic to commit to seek money for more than 50 residential placements. DSUF II, ¶¶4-7. Pennsylvania had a $1.2 billion deficit in 2009-10 Overall, the total amount appropriated in the 2010-11budget is only 1% more than the amount appropriated in the 2009-10 budget. The governor’s proposed budget for fiscal year 2010-11 provided less money for community placements than had been appropriated by the General Assembly in the 2009-10 fiscal. DSUF II, ¶4-7. Under the Plan, the amount of money requested will increase as those guidelines change and economic conditions improve. DSUH II, ¶8.
Amicus and Plaintiffs place too much reliance on Frederick L. v. Dep’t of Public Welfare, 422 F.3d 151 (2005) ( Frederick L. II). In that
15

Case 1:09-cv-01182-JEJ Document 66 Filed 07/14/10 Page 19 of 23
case, the Third Circuit found that DPW had no written commitment – a Plan – to moving people from State Hospitals into community placements. The Third Circuit told the lower court to require DPW to prepare such a written commitment. Nothing in that decision suggested that a district court can impose a particular plan upon the State. Here, DPW has made the necessary commitment. That is all that is required and all that this Court could order.
It is notable that Plaintiffs have also filed for summary judgment and the Olmstead Plan which they request this Court to impose upon DPW looks very much like the Plan which DPW has adopted. It would require DPW to identify those who are not opposed to placement in the community and start planning for that move. It would require DPW to develop programs to educate State center residents about the benefits of community placement. Plaintiffs seek to require DPW to form a committee to design that educational program. Plaintiffs also ask that DPW be required to seek funding sufficient to place a certain number of class members each year, albeit 100, rather than the 50 set forth DPW’s Plan. The Plan adopted by DPW commits DPW to do each of these things. It, therefore, satisfies DPW’s Olmstead obligations. Frederick L. II, 422 F.3d 151 (2005).
16

Case 1:09-cv-01182-JEJ Document 66 Filed 07/14/10 Page 20 of 23
C. The relief requested by Plaintiffs violates the requirements of the Americans with Disabilities Act and the Rehabilitation Act as set forth in Olmstead v. L.C., 527 U.S. 581 (1999) insofar as they seek to require Defendants to use limited funds to place people who are safe and receiving appropriate services in a State center into a community placement ahead of other mentally retarded persons who are without services and, therefore, at risk of physical or mental injury.
DPW has significant, but limited, funding available to provide
services to persons with mental retardation to provide those services. That
money is not adequate to provided services to all that need them. While it is
likely that, in the long term, DPW will save money moving people from
State centers into the community, there is no serious dispute that it will take
several years to do so. Thus, for at least two years, DPW would have to find
millions of dollars to fund those placements. That means that, if no
additional funding is appropriated by the General Assembly, DPW would
have to ignore the needs of persons who are currently receiving no services
and are at serious risk of physical or mental harm. That would be contrary
to the clear holding of Olmstead that:
[s]ensibly construed, the fundamental-alteration component of the reasonable-modifications regulation would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and
17

Case 1:09-cv-01182-JEJ Document 66 Filed 07/14/10 Page 21 of 23
treatment of a large and diverse population of persons with mental disabilities.
Olmstead v. L.C. ex rel Zimring, 527 U.S. 581, 604 (1999) (plurality opinion). As the Third Circuit noted in Frederick L. I:
Olmstead explains that the ADA does not compel states to provide relief where the requested relief would require the state to neglect the needs of other segments of the mentally disabled population who are not litigants before the court. Frederick L. v. Dep’t of Public Welfare, 422 F.3d at 494. DPW serves over 52,000 persons with mental retardation. DSUH II, ¶13. Approximately 3200 more receive no services, most of those are in greater need than the Plaintiff class members. DSUH II, ¶¶ 19, 22. Obviously, it would be inequitable to deny them services in order move people who are safe and receiving adequate services in State centers into community placements. To do so would, therefore, violate the dictates of Olmstead. V. CONCLUSION Over the years, DPW has reduced the population of its State centers at an impressive rate. Over the past several years, it has focused its limited resources on persons at risk of physical or mental harm who live in the community but who are receiving few or no services.
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Case 1:09-cv-01182-JEJ Document 66 Filed 07/14/10 Page 22 of 23
In its Plan for Supporting People Who Currently Reside in State Centers Who Want to Move to the Community, DPW has committed itself to seek funding and initiate procedures directed at refocusing its efforts at de-institutionalization while, at the same time, preserving its ability to avoid harm to other mentally retarded persons. That is wholly consistent with the Olmstead mandate and requires that Summary Judgment be entered in favor of the Defendants.

Date: July 14, 2010

Respectfully Submitted,
s/Allen Warshaw______ Allen C. Warshaw Chief Counsel PA ID No. 17145 Office of General Counsel Department of Public Welfare 3rd Floor West, Health & Welfare Bldg. Harrisburg, PA 17120 (717) 783-2800 (phone) (717) 772-0717 (fax) awarshaw@state.pa.us

19

Case 1:09-cv-01182-JEJ Document 66 Filed 07/14/10 Page 23 of 23
LOCAL RULE 7.8(b)(2) CERTIFICATE I certify under penalty of perjury that Defendants’ Brief in Support of their Motion for Summary Judgment contains 3752 words (excluding the Table of Contents and Table of Citations) based on the processing system used to prepare the Brief (Word 2007).

Date: July 14, 2010

Respectfully Submitted,
s/Allen Warshaw______ Allen C. Warshaw Chief Counsel PA ID No. 17145 Office of General Counsel Department of Public Welfare 3rd Floor West, Health & Welfare Bldg. Harrisburg, PA 17120 (717) 783-2800 (phone) (717) 772-0717 (fax) awarshaw@state.pa.us

20

 
 Case 1:09-cv-01182-JEJ Document 78 Filed 10/13/10 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FRANKLIN BENJAMIN, by and through his :

next friend, Andreé Yock; RICHARD GROGG :

and FRANK EDGETT, by and through their :

next friend, Joyce McCarthy; SYLVIA

:

BALDWIN, by and through her next friend :

Shirl Meyers; ANTHONY BEARD, by and :

through his next friend, Nicole Thurman, on :

behalf of themselves and all others similarly :

situated,

:

:

Class Action Plaintiffs,

:

:

v.

:

DEPARTMENT OF PUBLIC WELFARE :

OF THE COMMONWEALTH OF

:

PENNSYLVANIA and HARRIET DICHTER, :

in her official capacity as Secretary of

:

Public Welfare of the Commonwealth of

:

Pennsylvania,

:

:

Defendants.

:

Civil No. 1:09-CV-1182
(Judge Jones) (Magistrate Judge Carlson)

ORDER

AND NOW, this 13th day of October, 2010, the above-captioned case having been

referred to this Court for settlement discussion, we note that the United States, as amicus,

has filed a motion to participate in these settlement discussions, stating that it is in a

unique position to assist the Court in addressing the legal issues raised in the competing

summary judgment motions filed by the parties.

We appreciate the United States’ offer of its expertise in this legal field, but are

constrained to note that one of the parties has thus far refused to concur in this request.

Case 1:09-cv-01182-JEJ Document 78 Filed 10/13/10 Page 2 of 2
Since the settlement process typically is limited to parties, and is always a consensual process, we are not inclined to invite non-parties to participate in settlement discussions absent a consensus from the actual parties that such participation would be mutually beneficial..
In any event, to the extent that the United States offers its expertise to this court to address the issues set forth in the summary judgment motions, we find that the United States has already ably articulated its views on those issues in its merits brief filed as an amicus on the summary judgment motion. Therefore, the Court already has the benefit of these views. Given that there is no consensus among the parties regarding the value of the participation of the United States in settlement discussions, and taking into account the fact that the United States has provided a thorough and cogent expression of its views in its prior amicus filings, we will decline this request at the present time.
s/Martin C. Carlson MARTIN C. CARLSON United States Magistrate Judge
2

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FRANKLIN BENJAMIN, et. al.,

:

:

:

Plaintiffs

:

:

v.

:

:

DEPARTMENT OF PUBLIC ,

:

WELFARE OF THE

:

COMMONWEALTH OF

:

PENNSYLVANIA and ESTELLE B. :

RICHMAN, in her official capacity as :

Secretary of Public Welfare of the

:

Commonwealth of Pennsylvania

:

:

Defendants.

:

1:09-cv-1182 Hon. John E. Jones III

MEMORANDUM AND ORDER March 10, 2010
I. INTRODUCTION Currently pending before the Court in this class action is a Motion to
Intervene filed by Craig Springstead, by and through his father and guardian, Bertin Springstead; Maria Meo, by and through her mother and guardian, Grace Meo; Daniel Bastek, by and through his guardian, John Bastek; Michael Storm, by and through his guardian, Polly Spare; Beth Ann Lambo, by and through her father

1

and guardian, Joseph Lambo; Richard Clarke, by and through his father and guardian, Leonard Clarke; Richard Kohler, by and through his sister and guardian, Sara Fuller; Maria Kashatus, by and through her father and guardian, Thomas Kashatus; and Wilson Sheppard, by and through his brother and next friend, Alfred Sheppard (“Applicants” or “Springstead Intervenors”) on November 10, 2009. (Doc. 27). For the reasons that follow, we will deny the Motion to Intervene. II. FACTUAL AND PROCEDURAL BACKGROUND
On June 22, 2009, Plaintiffs Franklin Benjamin, Richard Grogg, Frank Edgett, Sylvia Baldwin, and Anthony Beard (collectively, “Plaintiffs”) filed a Complaint against Defendants, Department Public Welfare of the Commonwealth of Pennsylvania and Estelle B. Richman in her official capacity as Secretary of Public Welfare of the Commonwealth of Pennsylvania (“DPW” or “Defendants”). (Doc. 1). On July 14, 2009, Plaintiffs filed an Amended Complaint against the Defendants. (Doc. 9). On August 31, 2009, Plaintiffs filed an unopposed Motion to certify a class. (Doc. 15). On September 2, 2009, the Court certified the following class: All persons who: (1) currently or in the future will reside in one of Pennsylvania’s state-operated intermediate care facilities for persons with mental retardation; (2) could reside in the community with appropriate services
2

and supports; and (3) do not or would not oppose community placement (“the Class”). (Doc. 17).
In the Amended Complaint, Plaintiffs allege that DPW, as the Commonwealth agency that is responsible to provide services to Pennsylvanians with mental retardation, has failed to offer and provide Plaintiffs with the opportunity to receive services in integrated, community settings that are most appropriate settings to meet their needs. (Doc. 9). Plaintiffs, therefore, seek appropriate declaratory relief and injunctive relief pursuant to Title II of the American with Disabilities Act, 42 U.S.C. § 12312 and 28 C.F.R. § 35.130(b)(3) (“ADA”), and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 and 28 C.F.R. § 41.51(d) (“RA” or “Section 504"). (See Doc. 9).
Applicants allege that they are de facto members of the certified class. Specifically, Springstead Intervenors assert that persons with developmental disabilities should receive the care and support they require in a setting appropriate to each individual’s unique needs, whether it be a community-based facility or an Intermediate Care Facility for the Mentally Retarded (“ICF/MR”). Therefore, although Applicants do not oppose the named Plaintiffs’ right to community care for themselves, they submit this Motion for Intervention based on
3

their belief that the Class would include the Springstead Intervenors who do not seek this relief. (See Docs. 27, 29).
On November 10, 2009, Applicants filed the instant Motion. (Doc. 27). The Motion has been fully briefed by all parties. (See Docs. 29, 34, 37). It is therefore ripe for disposition. III. STANDARD OF REVIEW
The applicable standards for adjudicating a motion to intervene will be fully set forth within the analysis of the pending Motion. IV. DISCUSSION
As we previously stated, Applicants are residents of ICFs/MR who do not wish to be “forced” into community care. Rather, they believe that persons with developmental disabilities should receive the care and support they require in a setting appropriate to each individual’s unique needs, be it a community-based facility or an ICF/MR. Applicants argue that they have a concrete, legally protectable interest in their own care, i.e., the availability of institutional care. Applicants, therefore, assert that they are de facto members of the Class and seek to intervene, alleging that their rights to choose ICF/MR care would be directly affected by Plaintiffs’ lawsuit should Applicants be bound by any final judgment or settlement.
4

As Applicants submit, the Federal Rules of Civil Procedure provide for two types of intervention: intervention as of right and permissive intervention. See Fed.R.Civ.P. 24. We will discuss the two types of intervention in turn.
A. Intervention as of Right Federal Rule of Civil Procedure 24 (“Rule 24") provides, in pertinent part:
Intervention as of Right. On timely motion, the court must permit anyone to intervene who: . . . (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest unless existing parties adequately represent that interest. Fed.R.Civ.P. 24(a). The United States Court of Appeals for the Third Circuit has instructed that Rule 24(a) entitles an applicant to intervene if the applicant establishes that all of the following prongs: (1) the application for intervention is timely; (2) the applicant has a sufficient interest in the litigation; (3) the interest may be affected or impaired, as a practical matter by the disposition of the action; and (4) the interest is not adequately represented by an existing party in the litigation. In re Cmty. Bank of N. Va., 418 F.3d 277, 314 (3d Cir. 2005); see also Kleissler v. U.S. Forest Serv., 157 F.3d 964, 969 (3d Cir. 1998); Brody v. Spang, 957 F.2d 1108, 1115 (3d Cir. 1992); Harris v. Pernsley, 820 F.2d 592, 596 (3d
5

Cir. 1987) cert denied, 484 U.S. 947 (1987).1 The applicant carries the burden of
proving all fours parts of the test under Rule 24. See United States v. Alcan
Aluminum, 25 F.3d 1174, n.9 (3d Cir. 1994). We shall measure the case at bar
against the four prongs.
1. Timeliness of Intervention Application
The first prong of the intervention as of right test concerns the timeliness of
the intervention application. Applicants argue that the application was timely as it
was filed at an early point in the proceeding. Here, Plaintiffs filed their amended
complaint on July 14, 2009, Defendants moved to dismiss the complaint on
September 24, 2009, and the trial is scheduled for October 2010. Applicants
assert, therefore, that neither Plaintiffs nor Defendants can plausibly argue that
granting the instant Motion will cause any prejudice, “where the Defendants have
yet to file a responsive pleading, no discovery has taken place, and the Court has yet to rule on the Defendant’s Motion to Dismiss.”2 (See Doc. 29 p. 7). Further,
Plaintiffs concede that the Motion is not untimely and do not challenge this prong
1These cases and others cited within this Memorandum were decided prior to one or more amendments to Rule 24. Those amendments, however, did not change the substance of Rule 24 in the subsections pertinent to this matter. See Fed.R.Civ.P. 24 advisory committee’s notes, 2007 Amendment (“The language of Rule 24 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. . . . These changes are intended to be stylistic only.”). Therefore, the cases cited continue to control our analysis of the present Motion.
2 The Court denied Defendant’s Motion to Dismiss (Doc. 37) on January 25, 2010. (Doc. 38).
6

because the current schedule would be unaffected if the intervention is permitted. (See Doc. 34 p. 5; Doc. 37 p. 3).
Because Plaintiffs concede this point and because the application was filed approximately three months after the amended complaint was filed, no measurable discovery had been conducted in the case, and the trial is scheduled to commence in October 2010, we find that the application was, in fact, timely.
2. Interest in the Litigation Federal Rule of Civil Procedure 24(a) requires that applicants demonstrate an interest in this action that is “significantly protectable.” The Third Circuit instructs that this means that the asserted interests “must be legal interests as distinguished form interests of a general and indefinite character . . . [T]he applicant must demonstrate that there is a tangible threat to a legally cognizable interest to have the right to intervene.” Harris, 820 F.2d at 601. Further, the Third Circuit instructs that the determination of whether a “significantly protectable” legal interest exists involves a pragmatic analysis and that there is no set list of interests that qualify as sufficient for intervention. See Kleissler v. U.S. Forest Service, 157 F.3d 964, 969-70 (3d Cir.1998). Intervenors, however, must have “an interest that is specific to them, is capable of definition, and will be directly affected in a substantially concrete fashion by the relief sought.” Id. at 972.
7

Moreover, an applicant typically has a right to intervene where “the action will have a significant stare decisis effect on the applicant’s rights, . . .the contractual rights of the applicant may be affected by a proposed remedy,” Harris 820 F.2d at 601, or the applicant is the “real party in interest” and “would have standing to raise the claim” itself. Alcan, 25 F.3d at 1185.
Springstead Intervenors, as residents of ICFs/MR who oppose forced placement in community care, allege that they have concrete, legally protectable interests in their own care, and more broadly, the availability of institutional care. (See Doc. 29 p. 3). Applicants further allege that these concrete interests are directly implicated in this litigation. (See Doc. 29, p. 3). Specifically, Applicants assert that they have a legally protectable interest in their own care, an interest in retaining a meaningful right to choose institutional options, and an interest in “opposing Plaintiff’s claims that ICFs/MR are not the most integrated settings appropriate to the needs of any individual resident of those facilities.” Id. at 9 (emphasis in original). Further, Applicants contend that if Plaintiffs’ claims proceed on the present class action basis, the litigation “will impair the Springstead Intervenors’ rights to choose ICF/MR care because the Applicants will, as a
8

practical matter, be bound by any potential judgment or settlement in this case”3
resulting from Plaintiffs seeking “appropriate declaratory relief and injunctive
relief” against Defendant DPW to allow all class members to “choose” community-
based care if applicable. Id. at 4. Applicants argue that this language would leave
them unable to choose to remain in institutional care if they were eligible for
community-based care. Applicants cite Olmstead v. L.C. ex rel. Zimring, 527 U.S.
581 (1999) and Ligas v. Maram, No. 1:05-cv-04331 (N.D. Ill. July 7, 2009) (class
decertification order) to support their argument that they have a legally protectable
interest of the right of their own care and the right to choose the best care option in
light of his or her own personal circumstances.
In Olmstead, mentally disabled patients brought suit against the State,
challenging their confinement in a segregated environment and seeking placement
in community care residential programs. In a plurality opinion, Justice Ginsburg
concluded that, under Title II of the ADA, it was a violation of the ADA to force
3 Applicants assert that Plaintiffs’ action threatens their choice to the best care option in light of his or her own personal circumstances because Plaintiffs seek Rule 23(b)(3) relief, which offers no ability to “opt-out,”and thus, converting the underlying litigation from a policy disagreement into a dispute with concrete consequences. (See Doc. 29 p. 11). In support of this argument, Applicants rely on 7C Wright, Miller & Kane, Federal Practice & Procedure, Civ. 3d § 1908 (2009) (noting that the interest requirement is “one of inclusion rather than exclusion. If there is a direct substantially legally protectable interest in the proceedings, it is clear that this requirement of the rule is satisfied . . . It is sufficient also if the judgment will have a binding effect on the would-be intervenor.”).
9

developmentally disabled patients to reside in institutionalized settings when they are able to live more fully integrated into society at large and do not oppose doing so. 527 U.S. at 597-602. Thus, states are required to place persons with mental disabilities in community settings when the State’s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated. See id. In so holding, however, the plurarity emphasized that “nothing in the ADA or in 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.” Olmstead, 527 U.S. at 583; see also 28 C.F.R. § 35.130(e)(1) (“Nothing in this part shall be construed to require an individual with a disability to accept any accommodation . . . which the individual chooses not to accept.”). Thus, the Olmstead Court, albeit in dicta, recognized that states need to maintain a range of facilities for the care and treatment of persons with diverse mental disabilities.
In opposition to the Motion, Plaintiffs contend that Springstead Intervenors have no direct, “significantly protectable interest” that is jeopardized by this litigation for the simple reason that Applicants are explicitly excluded from the
10

class definition. Plaintiffs assert that the class definition, approved by this Court,
“has transformed any interest the Movants might have had from one that could be
significant and legally protectable . . . to one that is . . . general and remote, if not
purely illusory.” (See Doc. 34 p. 6). Plaintiffs allege that the class definition itself
preserves the choice that Applicants seek to protect by including in the Class
specifically state ICF/MR residents “who do not or would not oppose community
placement.” Id. Thus, because Applicants are opposed to community placement,
they will not be subject to any relief granted from the decision of the underlying
class action litigation.4 5
While the Court does not doubt that Applicants have a bona fide concern in
their own care, that concern does not rise to the level of a significantly protectable
in the interest in the litigation warranting intervention as a party. We must agree,
therefore, with Plaintiffs that the definition of the Class specifically excludes
4Further, Plaintiffs assert that they carefully formulated their claims in this narrow manner pursuant to Olmstead’s holding that the right to community services afforded by the ADA has been limited to those individuals who are not opposed to community placement. The language in the certified class is taken verbatim from the Supreme Court's controlling precedent. See Olmstead, 527 U.S. at 587 (transfer appropriate where it “is not opposed by the affected individual”); id. at 607 (“the affected persons do not oppose such treatment”).
5 Plaintiffs proceed to explain that Applicants’ status as non-class members insulates them from any potential settlement between Plaintiffs and Defendants because a settlement is a contract, which is not binding on a non-party. Additionally, Plaintiffs assert that a judgment on the merits in this case would not preclude any claims that Applicants may have since “one of the elements of claim preclusion res judicata is identity of the parties or their privities.” Churchill v. Star Enterprises, 183 F.3d 184, 194 (3d Cir. 1999).
11

Applicants because they oppose community placement, despite their ability to reside in the community with appropriate services and supports. In making this determination, we are persuaded by the holding of United States Court of Appeals for the Seventh Circuit in Ligas v. Maram, 478 F.3d 771 (7th Cir. 2007), and the underlying holding of the district court in that case. Interestingly, both parties have recognized and relied on this case due to its almost identical circumstances to the instant case. In Ligas, the Seventh Circuit ultimately affirmed the district court’s holding that the interest of the proposed intervenors, individuals who opposed community placement and sought intervention to ensure that the disabled would still retain a choice of where they lived, would not be threatened or impaired by the lawsuit. Ligas, 478 F.3d at 774. The Seventh Circuit reasoned that a verdict in favor of the plaintiffs would not leave the proposed intervenors without a choice of institutional care because the plaintiffs’ complaint was “replete with language of choice.” Id. Thus, “nothing in the complaint . . . would require the state to force those who desire institutional care to move out.” Id.
Here, as in Ligas, Plaintiffs have narrowly tailored the class definition to affect only those disabled individuals who “do not or would not oppose community placement.” The class definition, which this Court certified by order on September 2, 2009, clearly excludes those disabled individuals currently residing in ICFs/MR
12

who oppose discharge from the institutional setting. The ultimate outcome of this
suit, therefore, would not require the state to force those who desire institutional care to move out.6 Accordingly, Applicants have not demonstrated an interest in
the litigation to justify intervention as of right pursuant to Federal Rule of Civil
Procedure 24(a).
Although Applicants carry the burden of proving all four parts of the test
under Rule 24(a) and have failed to do so with respect to the interest in the
litigation prong, in the exercise of completeness, we will analyze the remaining two
prongs of the test in this narrative. See Alcan Aluminum, 25 F.3d n.9; see also
Harris, 820 F.2d at 596 (“Although these requirements are intertwined, each must
be met to intervene as of right.”).
3. Potential Impairment of the Interest
6 Further, Applicants put much emphasis on the fact that the Disability Rights Network (DRN) and Defendant DPW are currently in the midst of drafting a statewide Olmstead plan to end “unnecessary” institutionalization of persons with mental illness. Applicants argue that “the parties could use the Olmstead integration plan for people with mental illness as a framework of potential settlement in this case.” (See Doc. 37 p. 7). We find this argument flawed for two reasons. First, Applicants’ argument has no basis in law. Both the ADA and our Supreme Court in Olmstead unequivocally hold that no disabled individual must accept accommodation which he or she opposes. In fact, the Olmstead Court recognized that States need to maintain a range of facilities for the care and treatment of persons with diverse mental disabilities. Olmstead, 527 U.S. at 507-602. Therefore, Applicants’ fear of being forced to live in community-based settings is unfounded. Furthermore, courts have held that mere speculation is not enough to generate an interest in the litigation.
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Once an applicant for intervention has established that he or she has a sufficient legal interest in the underlying dispute, the applicant must also show that the interest is in jeopardy in the lawsuit. Alcan Aluminum, 25 F.3d at 1181 n.9; see also Harris, 820 F.2d at 596. In making such a determination, the court is obligated to assess the “practicable consequences of the litigations,” and “may consider any significant legal effect on the applicants’ interest.” Id. at 601.
Springstead Intervenors argue that they face a “tangible threat” because Plaintiffs and Defendants have both agreed to proceed on a class basis. Further, Applicants assert that the “do not or would not oppose” limitation does not alleviate the threat of harm because Plaintiffs are seeking relief before that class is precisely defined.
As we previously determined, Springstead Interveners do not have a legally protectable interest which warrants intervention as of right on part of Applicants because they are specifically excluded from the certified class in this suit. Therefore, Applicants’ alleged interest cannot logically be placed in jeopardy by the case sub judice because that interest is not implicated in the matter at hand. Accordingly, Applicants have failed to prove this part of the intervention as of right test.
4. Representation by Existing Party in Litigation
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The final prong of the intervention as of right test is that Applicants must
demonstrate that their interests are not adequately represented by the existing
parties in the lawsuit. Hoots v. Pennsylvania, 672 F.2d 1133, 1135 (3d Cir. 1982).
Applicants must demonstrate their interests are sufficiently different that the
representative cannot give those interests proper attention. The Third Circuit has
instructed that representation is typically considered to be inadequate for any one
of the following three reasons:
(1) Although applicants’ interests are similar to those of a party, they are sufficiently diverse that there is a risk that the existing party cannot or will not devote proper attention to the applicant’s interest;
(2) There is collusion between the representative party and the opposing party;
(3) The representative parry has not been diligent in prosecuting the litigation;
Id. In its Motion to Intervene, Applicants assert that they meet the inadequate
representation prong because neither Plaintiffs as a class nor Defendants
adequately represent their interests. Specifically, Applicants argue that, not only
do their interests “diverge from those of the Plaintiffs,” Plaintiffs’ interests also are
“openly antagonistic of the [Springstead] Intervenors’ wishes” because Plaintiffs
seek to “force” all class members to choose community-based care, whereas the
Springstead Intervenors wish to protect their rights to choose appropriate treatment
15

in an institutional setting. (See Doc. 29 pp. 17-18). Further, the Springstead Intervenors allege that Defendants’ failure to oppose class certification demonstrates that Defendants do not adequately represent Springstead Intervenors’ interests.
Plaintiffs counter Applicants’ inadequacy of representation arguments in several ways. First, Plaintiffs assert that they in fact represent Applicants’ interests by “carefully framing this lawsuit and the class definition to exclude from the Class those individuals, like Movants, who are opposed to community placement.” (See Doc. 34 p. 15). Second, Plaintiffs argue that DPW “has proved itself able to represent the Movants’ interest.” Id. Plaintiffs aptly submit that there is a wellsettled presumption that “when a representative party is a government body charged with representing the interests of proposed intervenors . . .” it will do so adequately unless there is a “showing of gross negligence.” Brody, 957 F.2d at 1123 (citing Del. Valley Citizens Council for Clean Air v. Pa., 674 F.2d 970, 973 (3d Cir. 1982)). Moreover, Plaintiffs highlight that “DPW has vigorously defended this action” and had filed a Motion to Dismiss Plaintiffs’ claims in their entirety. (See Doc. 34 p. 16). Even Applicants concede that presently both Defendants and Applicants oppose the relief sought by Plaintiffs at this stage of the litigation. (See Doc. 37 p. 13).
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After carefully considering the record, including but not limited to the three typical reasons constituting inadequate representation as delineated by the Third Circuit, we do not find any interest alleged by Applicants that is not being adequately represented by Defendants in this action. See Hoots, 672 F.2d at 1135.
Applicants have failed to demonstrate that their alleged interests sufficiently diverge with those of Defendants such that there is a risk that Defendants cannot or will not devote proper attention to Applicants’ interest. Notably, Defendants here are the Department of Public Welfare of the Commonwealth of Pennsylvania and Estelle B. Richman in her official capacity as Secretary of Public Welfare of the Commonwealth of Pennsylvania. Although Applicants do recognize that DPW is a governmental entity, they baldly claim that Defendants’ view of the “public welfare” squarely conflicts with Applicants’ personal interests. Nonetheless, aside from this unsubstantiated allegation Applicants have made no effort to show gross negligence or bad faith on the part of DPW, and have therefore not overcome the presumption that DPW, as a governmental body charged with protecting the interests of the Springstead Intervenors, will provide adequate representation.
Because Applicants have not raised the issue of potential collusion between the representative party, Defendants, and the opposing party, Plaintiffs, this issue does not warrant discussion.
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Finally, although Applicants attempt to downplay the parallel positions of Defendants and Springstead Intervenors of opposing the relief sought at this early of the litigation, Applicants fail to demonstrate that Defendants will fail to prosecute their defenses in the future or will alter their position in this litigation. Therefore, we find no reason to believe that the representative party is not diligently prosecuting this lawsuit. This translates, in our view, to a finding that Defendants, through their able counsel, will certainly protect the interests of Applicants as this case proceeds to trial.
We therefore conclude that Applicants have not demonstrated that their alleged interests are not being adequately represented by Defendants in this action. As a result of Applicants’ failure with respect to this prong, as well as the “Interest” and “Impairment” prongs of the intervention as of right test, intervention as of right pursuant to Rule 24(a) is accordingly not warranted in the case sub judice.
B. Permissive Intervention If a party fails to meet the requirements of Rule 24(a) to intervene as a matter of a right, that party nonetheless may be granted permission to intervene under Rule 24(b). Rule 24(b) provides, in pertinent part: “On timely motion, the court may permit anyone to intervene who: . . . has a claim or defense that shares with the
18

main action a common question of law or fact. . . .” Fed.R.Civ.P. 24(b)(1) (emphasis added). Rule 24(b) further provides that, when a court exercises its discretion, “the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” Fed.R.Civ.P.24(b)(3). In exercising its discretion, the court should consider various factors, including whether the proposed intervenors will add anything to the litigation and whether the proposed intervenors’ interests are already adequately represented in the litigation. Hoots, 672 F.2d at 1136.
Applicants argue that permissive intervention is warranted as there are common questions of law and fact regarding this litigation, "including, [but] not limited to: (1) whether class action treatment is appropriate; (2) whether community care is appropriate for all class members; and (3) whether community care is, in fact, desired by all class members." (Doc. 29 p. 20). Further, Springstead Intervenors contend that this Court should grant permissive intervention because the inclusion of Applicants would cause no delay or undue hardship on the parties. Id. This action is not scheduled for trial until October 2010. Further, at the time the Motion was filed, the Court had not resolved Defendants’ responsive pleading, and no discovery had taken place. See id.
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In response, Plaintiffs argue that Applicants have asserted neither a claim nor a defense, and thus, do not have a claim or defense that share common questions with the main lawsuit. As previously detailed herein, Plaintiffs assert that Springstead Intervenors do not have an interest in this suit because they are specifically excluded by the definition of the Class as those who are opposed to community placement. Moreover, Plaintiffs submit that adding Applicants to the litigation would prejudice the adjudication of the parties' rights. (See Doc. 34 p. 18). Plaintiffs argue allowing Applicants to intervene will result in decertification of the class, and such decertification might adversely affect other absent class members who are "isolated, have limited resources, and have disabilities that prevent them from bringing individual lawsuits." Id. Finally, according to Plaintiffs, a decertification of the class might further prejudice the named Plaintiffs because if the lawsuit was limited to these five named individuals, Defendants will most likely challenge their right to secure community services ahead of other ICF/MR residents who are also waiting for community placements. Id. at 19.
After a thorough review of the record and in sound discretion of the Court, we find that permissive intervention pursuant to Rule 24(b) is not warranted in this case. Assuming, arguendo, the Springstead Intervenors share a claim or defense with the parties in the litigation, permissive intervention is nonetheless
20

inappropriate because the Applicants’ interests are already represented in the litigation, and their appearance as intervenors would not sufficiently add anything to the litigation. See Hoots, 672 F.2d at 1136. As discussed above, we have determined that, while the precise interests of the Applicants may not necessarily be represented by Plaintiffs, those interests are represented adequately by DPW as the governmental body charged with protecting the interests of those such as Applicants. See supra, § VI(A)(4). The Third Circuit has explained that if the interests of the proposed intervenors are already represented in the litigation, courts typically deny such applications to intervene. Hoots, 672 F.2d at 1136. Furthermore, intervention by the Applicants would not add anything to the litigation. To reiterate, Applicants’ interests are not implicated in the underlying suit because, although they do present a different viewpoint than the class Plaintiffs, they are explicitly excluded from the class. As such, the circumstances do not warrant permissive intervention by the Applicants. V. CONCLUSION
Because we find that intervention is unwarranted under either Federal Rule of Civil Procedure 24(a) or 24(b), we will deny the Applicants’ Motion to Intervene. An appropriate Order follows.
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NOW, THEREFORE, IT IS HEREBY ORDERED THAT: 1. The Applicant’s Motion to Intervene (Doc. 27) is DENIED. . /s/ John E. Jones III John E. Jones III United Stated District Judge
22

 
 Case 1:09-cv-01182-JEJ Document 88 Filed 01/27/11 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FRANKLIN BENJAMIN,

:

RICHARD GROGG, FRANK

:

EDGETT, SYLVIA BALDWIN, :

ANTHONY BEARD, and all others :

similarly situated,

:

:

Plaintiffs,

:

:

v.

:

:

DEPARTMENT OF PUBLIC

:

WELFARE OF THE

:

COMMONWEALTH OF

:

PENNSYLVANIA and HARRIET :

DICHTER, in her official capacity :

as Secretary of Public Welfare of the :

Commonwealth of Pennsylvania, :

:

Defendants.

:

09-cv-1182 Hon. John E. Jones III

MEMORANDUM & ORDER

January 27, 2011

I. INTRODUCTION

This is a class action, asserted by Franklin Benjamin1, Richard Grogg2,

1By and through his next friend, Andree Yock. 2By and through his next friend, Joyce McCarthy.
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Case 1:09-cv-01182-JEJ Document 88 Filed 01/27/11 Page 2 of 24
Frank Edgett3, Sylvia Baldwin4, and Anthony Beard5 on behalf of all persons who: (1) currently or in the future will reside in on of Pennsylvania’s state-operated intermediate care facilities for persons with mental retardation; (2) could reside in the community with appropriate services and supports; and (3) do not or would not oppose community placement. (See Doc. 9, Amended Complaint; Doc. 17, Order Certifying Class.) Plaintiffs assert that the Department of Public Welfare of the Commonwealth of Pennsylvania (“DPW”) and Harriet Dichter, the Secretary of DPW6 (collectively, “Defendants”), have failed to provide appropriate community services in violation of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12134 (“Title II”), and Section 504 of the Rehabilitation Act (“RA”), 29 U.S.C. § 794 (“Section 504”). Plaintiffs seek declaratory and injunctive relief.
Presently before the Court are two motions for summary judgment. Plaintiffs filed their Motion for Summary Judgment (“Plaintiffs’ Motion”) on June 23, 2010 (Doc. 48) and Defendants filed their Motion for Summary Judgment
3By and through his next friend, Joyce McCarthy. 4By and through her next friend, Shirl Meyers. 5By and through his next friend, Nicole Turman. 6 The action was originally filed against Estelle Richman, as Secretary of DPW. Ms. Dichter since replaced Ms. Richman, but resigned on September 15, 2010. Michael Nardone is now acting Secretary.
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Case 1:09-cv-01182-JEJ Document 88 Filed 01/27/11 Page 3 of 24
(“Defendants’ Motion”) on June 29, 2010 (Doc. 51). Both Motions have been fully briefed, including an amicus brief filed by the United States in support of Plaintiffs’ Motion (see Doc. 62), and thus each is ripe for disposition. The parties agree that there is no material factual dispute in this action and each asks the Court to answer one legal question – whether DPW has violated Title II and Section 504 by failing to provide Plaintiffs with community support and services. Because one common question predominates, we will resolve both Motions in this Memorandum. For the reasons that follow, we hold that Defendants have not complied with the integration mandates of the relevant statutes. An appropriate Order shall enter after our analysis. II. PROCEDURAL HISTORY
Plaintiffs filed the Complaint in this action on June 22, 2009 (Doc. 1) and an Amended Complaint on July 14, 2009 (Doc. 9). Plaintiffs filed an unopposed Motion to Certify the Class on August 31, 2009, and the Court granted the Motion on September 2, 2009 and certified the above-named class. (Doc. 17.) On January 25, 2010, the Court denied Defendants’ Motion to Dismiss (Doc. 38), and Defendants then filed their Answer to the Amended Complaint on February 24, 2010 (Doc. 39). In the meantime, a group of individuals filed a Motion to Intervene pursuant to Federal Rule of Civil Procedure 24, asserting that they had
3

Case 1:09-cv-01182-JEJ Document 88 Filed 01/27/11 Page 4 of 24
interests in the litigation that were not adequately represented by the class. (See Doc. 27.) The Court denied that Motion on March 10, 2010 (Doc. 41), and the proposed intervenors filed their notice of appeal of that decision on March 30, 2010 (Doc. 42).
As noted above, Plaintiffs filed their Motion for Summary Judgment on June 23, 2010 (Doc. 48) and Defendants filed their Motion for Summary Judgment on June 29, 2010 (Doc. 51). We referred the action to Magistrate Judge Martin Carlson for settlement discussions on October 6, 2010, but those discussions have thus far been unsuccessful. Though the parties have not foreclosed the possibility of further settlement negotiations, we believe the most prudent course is to resolve the motions that have been pending for months and to thereafter grant the opportunity to the parties to settle on the ultimate remedy themselves prior to additional and possibly unnecessary mandates by the Court. III. FACTUAL BACKGROUND
DPW is responsible for providing services to Pennsylvanians with mental retardation under the Mental Health and Mental Retardation Act of 1966, 50 P.S. § 4201(1). One of the means by which DPW provides services to individuals with mental retardation is through the operation of five state Intermediate Care Facilities
4

Case 1:09-cv-01182-JEJ Document 88 Filed 01/27/11 Page 5 of 24
for Persons with Mental Retardation (“ICFs/MR”).7 The services provided at these facilities are covered by Medical Assistance, and, thus, DPW receives a federal government funding match for their costs. The five state ICFs/MR housed a total of 1,272 individuals in 2008 and 1,224 individuals in 2009. In the five fiscal years between 2004 and 2009, fifty-four residents were discharged to community-based services, and two-hundred residents died. The anticipated census reduction in 2009-2010 is expected to be attributable almost exclusively to deaths rather than discharges. The average cost to provide services in the state ICFs/MR is approximately $240,000 per resident per year, and is expected to increase to approximately $256,000 per resident per year in the following fiscal year. In additition to the state-run ICFs/MR, DPW also funds privately-operated ICFs/MR that service approximately 2,500 persons with mental retardation.
DPW also funds community-based mental retardation services in addition to the state-operated or -funded institutions. These residential services can include small group homes, family living, vocational training, supported employment, development of skills, socialization, therapies, home health-care, and other support services. The services are funded primarily through Medical Assistance through a
7These facilities are the Ebenseburg Center, located in Cambria County, the Hamburg Center, located in Berks County, the Polk Center, located in Venango County, the Selinsgrove Center, located in Snyder County, and the White Haven Center, located in Luzerne County.
5

Case 1:09-cv-01182-JEJ Document 88 Filed 01/27/11 Page 6 of 24
waiver system, of which the federal government pays a portion of costs. Though there is a limit to the number of persons who can receive services under these programs, the federal government can grant permission to increase that limit and has readily done so in the past.
Plaintiff Benjamin has been institutionalized at the Ebensburg ICF/MR since 1966. Plaintiffs Grogg and Edgett have been institionalized at the Selinsgrove ICF/MR for twenty (20) years each. Plaintiff Baldwin has been institutionalized at the Polk ICF/MR since 1990. Plaintiff Beard has been institutionalized at the Ebensburg ICF/MR for forty-two (42) years. All named Plaintiffs’ mental retardation limits one or more of their major life activities but, with proper support, they could reasonably live in the community.
With appropriate community services, all of the named Plaintiffs could live in more integrated community settings rather than institutions because they would still have available all services and supports that are currently available to them. Further, pursuant to the principle of “normalization” that the Commonwealth of Pennsylvania has embraced8, individuals with disabilities do significantly better if they have the opportunity to live in a “normal” environment, such as the
8“This chapter [regarding community homes for individuals with mental retardation] is based on the principle of normalization which defines the right of the individual with mental retardation to live a life which is as close as possible in all aspects to the life which any member of the community might choose. . . .” 55 Pa. Code § 6400.1.
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Case 1:09-cv-01182-JEJ Document 88 Filed 01/27/11 Page 7 of 24
environment available when receiving community-based services. Though the environment in which institutionalized individuals live may be “normal” in the sense that it is all they have known for the better part of their lives, the individuals are more segregated because:
most state ICFs/MR are in more rura l parts of the state; most state ICF/MR residents live in units ranging from about 16 to 20 people; day services are usually provided on the grounds of the facilities; and residents do not have as much opportunity to interact with a wide range of people and to have access to community activities. (Doc. 50, “Plaintiffs’ Statement of Material Facts”, ¶ 52.) The named Plaintiffs and others, and their appropriate guardians or family members, are unopposed to discharge to the community and some have been actively, albeit unsuccessfully, seeking such an opportunity. Individuals are selected for community-based services via a waiting list that is divided into three categories. This categorization is determined by filling out a “Prioritization of Urgency for Need of Services” (“PUNS”) form for each person applying for services. Those who need services immediately are designated as “emergency”, those who will need services within two years are included on the waiting list as “critical”, and those who will need services within two to five years are designated as “planning”. Individuals are placed in the emergency waiting list if “community supports are needed to ‘keep him/her from being placed in a state
7

Case 1:09-cv-01182-JEJ Document 88 Filed 01/27/11 Page 8 of 24
center, nursing home, large ICF/MR or other congregate settings.” (Doc. 50 ¶ 79.) As of the filing of Plaintiffs’ Motion, only 113 state ICF/MR residents had PUNS forms completed to put them on a waiting list.
Placement on a waiting list for community services does not, however, guarantee prompt placement in those programs. Indeed, no state ICF/MR residents in the past ten years have been discharged to the community as a result of these routine vacancies.9 Each year, there are around 700-750 vacancies for these services, and DPW instructs its agents to consider only those individuals who are on or meet the criteria for the emergency waiting list to fill the vacancies. When this litigation commenced, DPW had not formulated an integration plan (discussed below) that set benchmarks for the eventual discharge of instiutionalized persons; but, on June 18, 2010, DPW apparently formulated such a plan (“the Plan”). (See Doc. 52 ¶ 37; Doc. 51-7.) IV. DISCUSSION
Plaintiffs assert that, because they are qualified for and unopposed to community integration, their continued institutionalization violates the antidiscrimination mandates of the ADA and Section 504. Plaintiffs argue that,
9Fifty-four residents have been discharged since fiscal year 2004-2005; thirty-six of those residents were discharged as a result of special funding intended to close a former state ICF/MR.
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Case 1:09-cv-01182-JEJ Document 88 Filed 01/27/11 Page 9 of 24
because DPW has failed to provide services in the most integrated setting warranted and has failed to implement any plan to do so, the Court should grant their Motion for Summary Judgment and issue appropriate declaratory and injunctive relief to remedy those failures. In response, and in support of their Motion for Summary Judgment, Defendants admit Plaintiffs’ pleadings to an extent, but counter that they have established the affirmative defense that the relief Plaintiffs seek would require a fundamental alteration of DPW’s services and also deprive other individuals in need of important services. Defendants maintain that the eleventh-hour plan adopted in June of 2010 defeats Plaintiffs’ claims regarding the absence of a viable integration plan, and argues that summary judgment should be granted in Defendants’ favor because the Plan satisfies the requirements of the integration mandates.
A. Legal Framework of the Integration Mandate 1. The ADA and the RA
In enacting the ADA, Congress made several important findings applicable to that statute. Relevant for these purposes, Congress asserted that “physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society”, 42 U.S.C. § 12101(a)(1), and further found that:
(2) historically, society has tended to isolate and segregate individuals
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Case 1:09-cv-01182-JEJ Document 88 Filed 01/27/11 Page 10 of 24
with disabilities, an d, despite so me improvements, such form s of discrimination against individuals w ith disabilities continue to be a serious and pervasive social problem; (3) discrimination against individuals with disabilities persists in such critical areas as . . . institutionalization . . .; . . . . (5) individuals with disabilities continually encounter various forms of discrimination, including outright inte ntional exclusion, . . . failure to make modifications to existing facilities and practices. . . .
42 U.S.C. § 12101(a)(2), (3), (5). Thus, Congress enacted the ADA to provide “to
provide a clear and comprehensive national mandate for the elimination of
discrimination against individuals with disabilities”, 42 U.S.C. §12101(b)(1), and
establish “clear, strong, consistent, enforceable standards addressing discrimination
against individuals with disabilities”, 42 U.S.C. 12101(b)(2). Congress set forth
prohibitions regarding discrimination against persons with disabilities in
employment (Title I), public services (Title II), and public accommodations
provided by private entities (Title III).
This action concerns the ADA’s prohibition against discrimination in public
services in Title II. Title II provides: “Subject to the provisions of this subchapter,
no qualified individual with a disability10 shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the services, programs,
10“Qualified individual with a disability” is defined as “an individual who, with or without reasonable modifications . . . meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2).
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or activities of a public entity11, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Congress further provided that “The remedies, procedures, and rights set forth in [§ 505 of the RA] shall be the remedies, procedures, and rights this title provides to any person alleging discrimination on the basis of disability in violation of [§ 12132].”
Congress directed the Attorney General to promulgate regulations to fully implement the provisions of Title II. 42 U.S.C. § 12134. As instructed, the Attorney General issued “General prohibitions on discrimination”, including the important “integration regulation” and “reasonable-modification regulation”. See Olmstead v. L.C., 527 U.S. 581, 592 (1999). The integration regulation mandates that “[a] public entity shall 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).
2. Olmstead v. L.C. The Supreme Court addressed the integration mandates and subsequent regulations of the ADA and RA in the seminal case of Olmstead v. L.C. In Olmstead, two residents of mental-health institutions alleged that the State of
11“Public entity” means “any State or local government. . . .” and any instrumentality of a State or local government. 42 U.S.C. § 12131(1)(A)-(B).
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Georgia violated the ADA’s integration mandate by unnecessarily instituionalizing
them instead of placing them in community-based programs. A plurality of
Justices construed the ADA’s provisions and held that “[u]njustified isolation . . .
is properly regarded as discrimination based on disability.” 527 U.S. 581, 597
(1999). The Court noted that the ADA’s
[r]ecognition that u njustified institutional isolation of persons with disabilities reflects two evident judgments. First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assum ptions that persons so isolated are incapable or unworthy of participating in community life. . . . Second , confinement in an institution severely dim inishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.
Id. at 600-01. The Supreme Court further recognized that, although the states have
a responsibility to provide community services, that responsibility “is not
boundless”; but, rather, is limited by the ADA’s “reasonable modification” and
“fundamental alteration” provision. Id. at 603. These provisions provide that a
state need not make alterations that would require a fundamental alteration of the
nature of the services provided or the program under which they operate. The
plurality explained the justification for these defenses as follows:
Sensibly construed, the fundam ental-alteration component of the reasonable-modifications regulation would allow the State to show that, in the allocation of available resoucres, immediate relief for the plaintiffs would be inequitable, given the responsiblity the State has undertaken
12

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for the care and treatment of a large and diverse population of persons with mental disabilities. Id. at 604. Ultimately, Olmstead identified three elements in an integration case: (1) that community placement is appropriate for the individual (as determined by the state’s professionals); (2) that the individual does not oppose transfer to a more integrated setting; and (3) that a placement in a more integrated setting can be reasonably accommodated, “taking into account the resources available to the State and the needs of others with mental disabilities.” Id. at 607. If all three elements are present, the state is required to provide community-based services.
3. Frederick L. v. DPW I and Frederick L. v. DPW II The United States Court of Appeal for the Third Circuit visited the confines of the fundamental-alteration defense with respect to fiscal considerations in Frederick L. v. Department of Public Welfare, 364 F.3d 487 (3d Cir. 2004) (“Frederick L. I”) and Frederick L. v. Department of Public Welfare, 422 F.3d 151 (3d Cir. 2005) (“Frederick L. II”). In Frederick L. I, a class of individuals who were institutionalized in the Norristown State Hospital appealed the district court’s judgment that found that DPW sufficiently established that accelerated community placement for the plaintiffs would require a fundamental alteration of DPW’s services. The Third Circuit noted that establishment of the fundamental alteration defense relies on several relevant factors, including “the state’s ability to continue
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meeting the needs of other institutionalized mental health patients for whom community placement is not appropriate, whether the state has a waiting list for community placements, and whether the state has developed a comprehensive plan to move eligible patients into community care settings.” Frederick L. I, 364 F.3d at 495; see also 28 C.F.R. § 42.511(c); 45 C.F.R. § 84.12(c). The Third Circuit rejected the appellants’ contention that the district court solely focused on the costconstraints of integration, and further noted that “the judiciary is not well-suited to superintend the internal budgetary decisions of DPW. . .” Id. at 497-98. Nonetheless, the Court found that the district court erred in “accept[ing] the Commonwealth’s reliance on past progress without requiring a commitment by it to take all reasonable steps to continue that progress. . . .” Id. at 499. In vacating and remanding the decision, the Court articulated:
After all, what is at issue is compliance with two federal statutes enacted to protect disabled persons. . . . [Of that group, institutionalized persons] are perhaps the m ost vulnerable. It is a gross injustice to keep th ese disabled persons in an institution notwithstanding the ag reement of all relevant parties that they no longerrequire institutionalization. We must reflect on that more than a passing moment. It is not enough for DPW to give passing acknowledgm ent of that fact. It m ust be prepared to make a co mmitment to action in a manner for which it can be held accountable by the courts. Id. at 500. The action in Frederick L. I returned to the Third Circuit the following year.
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Upon remand, the district court again ruled in favor of DPW, finding that DPW offered sufficient proof of a commitment to deinstitutionalization. On appeal, DPW argued that it fully satisfied the Third Circuit’s requirements because it “had ‘given assurance’ that it will make ‘ongoing progress toward community placement.’” Frederick L. II, 422 F.3d at 156. The Third Circuit interpreted Olmstead to require a comprehensive working plan as necessary to a fundamental alteration defense, and held that, although DPW attempted to construct a plan, its efforts were insufficient to establish that defense. Although DPW offered promises of its commitment to deinstitutionalization, it “failed to demonstrate in reasonably measurable terms how it will comply with that commitment” such as when eligible patients could expect discharge. Id. at 158. Good-faith intentions without more are insufficient, according to the Third Circuit, because “[t]heir implementation may change with each administration or Secretary of Welfare, regardless of how genuine. . . .” Id. Because DPW’s plan lacked sufficient benchmarks regarding deinstitutionalization, the Third Circuit again vacated and remanded the decision with specific guidance, noting that a “viable integration plan at a bare minimum should specify the time-frame or target date for patient discharge, the approximate number of patients to be discharged each time period, the eligibility of discharge, and a general description of the collaboration required [between authorities to
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effectuate the transition].” Id. at 160. B. The Motions for Summary Judgment In this action, we are tasked with answering the same question that was at
issue in Frederick L. I and Frederick L. II, and similar cases: Does Defendants’ segregation of Plaintiffs in public institutions constitute discrimination under Title II and Section 504? There is no dispute that community placement would be appropriate for an individual with appropriate services and supports and that the individuals in this litigation are not opposed to such a placement. Indeed, the definition of the class itself satisfies the first two elements articulated in Olmstead. Further, the existence of community programs demonstrates that providing community support could be reasonably accomodated. The central inquiry for the Court to resolve, therefore, is whether Defendants have demonstrated a commitment to action such that granting Plaintiffs’ requested relief would require a fundamental alteration of the services already provided by the Commonwealth.
Defendants assert that there is no violation of Title II and Section 504 because DPW now has an Olmstead plan. According to Defendants, DPW will seek funding to move at least 50 institutionalized persons into community placements per year, if DPW determines a placement is available. Defendants assert that the Plan identifies the process for prioritizing individuals for community
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placement and moving them “as money comes available”, and provides for the development of programs to educate residents and their guardians about the benefits of community services. (Doc. 66 p. 11.) Defendants admit, however, that there are contingencies to these commitments: First, no individual who would not thrive in a community placement may be moved; and, second, the money reserved to move instituionalized individuals may be directed to other, non-institutionalized individuals if a deputy secretary determines that it is necessary. (Id. pp. 11-12; Doc. 51-7 p. 4.) Defendants argue that, because the Plan was only adopted on June 18, 2010, there is no “history of implementation”, but, “DPW has a long history of moving people from State centers into community placements.” In fact, Defendants note:
From 1995 to 2009, the census at St ate ICFs/MR has decreased from 3164 to 1224. Today, fewer than 1200 individuals receive services in State centers. Since 2000, Defendantshave closed four State ICFs/MR, and four MR units on the grounds of State hospitals. Thus, there is no reason to question DPW’s commitment to action. (Doc. 66 p. 13.) Noticeably missing from that recitation, however, is any indicator of why the census decreased, and no assurances that it was because of DPW’s commitment to action rather than because of deaths or similar occurrences. Defendants note that they will place no residents in the community until the new fiscal year beginning in July of 2011, and then “it would not be realistic to
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commit to seek money for more than 50 residential placements.” (Doc. 66 p. 15.) Defendants highlight the Commonwealth of Pennsylvania’s deficit and argue that DPW simply does not have the funds to transfer individuals from institutions, regardless of the eventual savings such community placements would eventually realize. Further, Defendants maintain that the limited universe of community placements must first be filled by those persons who have no services. Those individuals take priority over institutionalized persons because “[f]or at least the past 16 years, DPW has tried to avoid admitting new residents into the State centers.” (Doc. 52 ¶ 20.) In sum, Defendants argument centers around the existence of the Plan that was adopted on June 18, 2010, and because DPW now has a written plan, it has “committed itself” to desintitutionalization and, thus, satisfies the requirements of Olmstead. Beyond asserting their compliance with the integration mandates, Defendants also assert that Plaintiffs’ request for desintitutionalization itself violates the ADA and RA because, according to Defendants, it would require them to deny services to other individuals. (Doc. 66. P. 17.)
Plaintiffs and the United States as Amicus argue that Defendants’ Plan, “hastily assembled at the eleventh hour”, does not amount to an Olmstead plan that is sufficient to establish the fundamental alteration defense. In support of this
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argument, Plaintiffs argue that “(1) on its face, the Plan lacks even the minimal required components; (2) the Plan fails to demonstrate the requisite commitment to integration; and (3) Defendants have not implemented the Plan.” (Doc. 61 p. 15.) First, Plaintiffs highlight that the Plan lacks any time frames or dates for discharge, and instead provides only a target starting date of July 2011. Further, Plaintiffs maintain that the Plan’s vague declarations of a commitment to integration, without identifiable benchmarks, are insufficient to demonstrate a “tangible commitment to action toward deinstitutionalization for which they can be held accountable.” (Id. p. 17.) Plaintiffs highlight that the Plan is “riddled with exceptions and loopholes.” (Id. p. 18.) Finally, Plaintiffs note that DPW has failed to implement the Plan, and expresses no intention to do so until July of 2011, nearly a year after its adoption.
C. Analysis We note at the outset of our analysis that Plaintiffs filed their Motion before any awareness of DPW adopting the June 18, 2010 Plan upon which they rely to defeat liability. The existence of the Plan does not, however, automatically defeat liability because we do not read Olmstead, Frederick L. I, or Frederick L. II, or any of their progeny to stand for the proposition that a written document purporting a commitment to deinstitutionalization alone satisfies the requirements of those cases. Further, voluntary cessation of an illegal practice does not render an action
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moot or automatically defeat liability for that practice, especially where there is a reasonable expectation where the violation may again occur or the cessation of the practice (here, the adoption of a stated practice) has not “completely and irrevocably eradicated the effects of the alleged violation.” See, e.g. DeJohn v. Temple Univ., 537 F.3d 301, 309-11 (3d Cir. 2008) (quoting Los Angeles County v. Davis, 440 U.S. 625, 631 (1979)). Thus, we will consider the existence of the Plan and the terms of the Plan, along with other appropriate factors, to evaluate whether DPW has sufficiently demonstrated an affirmative commitment to integration. We ultimately find that it has not.
As the Third Circuit articulated in Frederick L. II, “[g]eneral assurances and good-faith intentions neither meet federal law nor a patient’s expectations” without providing when, if ever, a patient can expect to be discharged. Frederick L. II, 422 F.3d at 158. Indeed, the possibility of placement is, based upon the plain terms of the Plan, quite remote. It is contingent upon the prioritization of noninstitutionalized individuals, (based upon DPW’s stated policy of, essentially, using institutionalization as a last resort), DPW’s assessment of the availability of funding, and the broad authority to use the funds that are allegedly directed to integrate institutionalized persons to place those who are not presently institutionalized. On its face, the Plan gives DPW nearly unfettered discretion to
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disregard its terms – for each of the 50 individuals it purports to place each year, the deputy secretary could find, based upon unidentified prioritization procedures, that the requisite funds be directed to a non-institutionalized person. Clearly, those who are currently receiving no services should have the opportunity to acquire supports; but within the dictates of the law DPW cannot continue to ensure this by relegating institutionalized individuals to second-class status in order to avoid subjecting any new individual to the same segregation. We recognize that avoiding institutionalization is an important goal; however, it is not one that can be achieved by discriminating against individuals who have equal rights to community support.
Beyond the deficient commitment to action on the face of the Plan, the absence of implementation, or even any demonstrated step toward implementation, is insufficient for Defendants to assert a fundamental alteration defense. Defendants cite fiscal considerations for the lack of any demonstrable progress toward deinstitutionalization, and readily admit that no steps will be taken toward that goal until the new fiscal year. Even overlooking the numerous loopholes and contingencies of the Plan, there is nothing on the record that illustrates any sort of viability of the Plan. Defendants cannot avail themselves of a fundamental alteration defense to their continued violation of the ADA and RA by merely
21

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supplying a written document that alleges a future commitment. Considering the absence of concrete benchmarks for deinstitutionalization in the contingencyridden Plan, no record of actual implementation of the Plan, and a history of unnecessary segregation of and discrimination against institutionalized persons, we cannot conclude that DPW has complied with or will comply with the integration mandates of the ADA and RA. V. CONCLUSION
Based upon the undisputed facts, Plaintiffs have established that Defendants have violated the integration mandates of Section II of the ADA and Section 504 of the RA by unnecessarily institutionalizing Plaintiffs. Despite Defendants’ protestations, Plaintiffs are not seeking any impermissible form of “queuejumping” and demanding they receive services to the detriment of other individuals. Plaintiffs seek to be appropriately considered for community placement, rather than be relegated to a class of persons who receive the placements only after another class is entirely served. Therefore, the Court will grant Plaintiffs’ Motion for Summary Judgment (Doc. 48) and deny Defendants’ Motion for Summary Judgment (Doc. 51). We are not blind to the budgetary constraints that Pennsylvania faces, and we are certainly mindful that DPW has limited resources; however, DPW cannot continue its practice of unnecessarily
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segregating individuals based upon their status as institutionalized. With that said,
the present posture of this case is such that we are in no position to issue an
injunction given the need for extensive detail therein and eventual oversight for
any such relief provided. We will, therefore, schedule a telephonic conference
with the parties to address the need for further submissions and a possible hearing regarding the extent of injunctive relief.12
NOW, THEREFORE, IT IS HEREBY ORDERED:
1. Defendants’ Motion for Summary Judgment (Doc. 51) is DENIED;
2. Plaintiffs’ Motion for Summary Judgment (Doc. 48) is GRANTED;
a. Judgment is entered in favor of Plaintiffs Franklin Benjamin, Richard Grogg, Frank Edgett, Sylvia Baldwin, Anthony Beard, and all others similarly situated;
b. It is DECLARED that the Defendants are not in compliance with the integration mandates of Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12134, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 with respect to the named Plaintiffs and all others similarly situated;
4. This action will remain open until determination of the proper remedy;
5. A telephonic conference call to address the procedure for determining the appropriate relief is scheduled for Monday, January 31, 2011 at 10:00 a.m.;
12We now encourage the parties, imbued with this mandate, to return to mediation to formulate a resolution that implements a realistic plan that fully complies with the ADA and RA.
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6. Counsel for Plaintiffs shall initiate the conference call. The Court’s phone number is (717)221-3986; and
7. All counsel shall be prepared to proceed at the time of the said call. /s/ John E. Jones III John E. Jones III United States District Judge
24

 
 Case 1:09-cv-01182-JEJ Document 106 Filed 05/27/11 Page 1 of 4 Case 1:09-cv-01182-JEJ Document 105-5 Filed 05/26/11 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FRANKLIN BENJAMIN, by and through his next friend, Andree Yock; RICHARD GROGG and FRANK EDGETT, by and through their next friend, Joyce McCarthy; SYLVIA BALDWIN, by and through her next friend, Shirl Meyers; ANTHONY BEARD, by and through his next friend, Nicole Tunnan, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA and GARY ALEXANDER, in his official capacity as Acting Secretary of Public Welfare of the Commonwealth of Pennsylvania,
Defendants.

Civil Action No. I :09-cv-1182-JEJ Class Action Complaint Filed June 22, 2009

ORDER Upon consideration of Plaintiffs' Unopposed Motion for Preliminary Approval of the Proposed Class Action Settlement Agreement and for Approval of the Class Notice, it is hereby ORDERED on this 27th day of May, 2011 as follows:

Case 1:09-cv-01182-JEJ Document 106 Filed 05/27/11 Page 2 of 4 Case 1:09-cv-01182-JEJ Document 105-5 Filed OS/26/11 Page 2 of 4
1. The proposed Settlement Agreement, attached as Exhibit 2 to the Motion, is preliminarily approved as fair, adequate, and reasonable in accordance with Federal Rule of Civil Procedure 23(e). The Agreement resulted from serious, informed, and non-collusive negotiations among the parties. The Agreement treats all class members equally. The Agreement falls within the range of possible approval, given the complexity, expense, and likely duration of the litigation; the stage of proceedings at which the Agreement was reached; the risks of securing relief; and the range of reasonableness of the Agreement in light of the best possible recovery and the risks of continued litigation. See In re AT & T Corp., 455 F.3d 160, 164-65 (3d Cir. 2006); Kaplan v. Chertoff, Civil Action No. 065304, 2008 WL 200108 at *11 (E.D. Pa. 2008); Bradburn Parent Teacher Store, Inc. v. 3M (Minnesota Mining & Mfg. Co.), 513 F. Supp. 2d 322, 330 (E.D. Pa. 2007).
2. The Notice of Class Action Proposed Settlement and Hearing, attached to the Motion as Exhibit 3 (the Notice) and the plan for notifying potential class members comply with Rule 23(e)(1) and are approved. The content of the notice adequately apprises potential class members of the litigation: the terms of the Agreement; the right to object; the fairness hearing; and information on how they can receive a copy of the Agreement and contact class counsel. See Kaplan,
2008 WL 200108 at *12. The method to distribute notice also is appropriate. The
2

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written notice will be delivered in-person to residents of the state-operated intermediate care facilities for persons with mental retardation (state ICFs/MR) and by mail to any involved family or guardians of those residents.
3. On or before June 24, 2011, four (4) weeks after the date this Order is entered, the Facility Advocates at the state ICFs/MR, who are employed by Plaintiffs' counsel, will hand deliver copies of the written notice to all state ICF/MR residents.
4. On or before June 24, 2011, four (4) weeks after the date this Order is entered, DPW will assure that written notices are sent by first class mail, postage prepaid to all involved families and guardians of state ICF/MR residents.
5. Counsel for Plaintiffs and Defendants each will provide a certification of notice to this Court on or before August 8, 2011, ten (l0) days prior to the final approval hearing scheduled in Paragraph 6 of this Order. The certification notice will state when and how the notice to potential class members required by this Order was accomplished.
6. A hearing on final approval of the proposed Settlement Agreement is hereby scheduled for August 22,2011, at 9:00 a.m. in Courtroom 2 of the United States Courthouse and Federal Building in Harrisburg, Pennsylvania.
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7. Any objections or requests to participate in the hearing must be received In writing by the Clerk of this Court on or before August 2, 2011, fourteen (14) days prior to the final approval hearing scheduled in Paragraph 6 of this Order.
8. Plaintiffs will file with the Court a memorandum of law in support of final approval of the proposed Settlement Agreement on or before August 8, 2011, ten (10) days prior to the final approval hearing scheduled in Paragraph 6 of this Order.

'-~-

The

ohn E. Jones, III

strict Judge

4

 
 Case 1:09-cv-01182-JEJ Document 254 Filed 08/02/11 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

--------------------------------------------------------------x

FRANKLIN BENJAMIN, et al., on behalf of

:

themselves and all others similarly situated,

:

:

Plaintiffs,

:

:

-against-

:

:

DEPARTMENT OF PUBLIC WELFARE OF :

THE COMMONWEALTH OF

:

PENNSYLVANIA, et al.,

:

:

Defendants.

:

--------------------------------------------------------------x

No. 09-cv-01182 (Jones, U.S.D.J.)
(Am. Complaint Filed 7/14/09)

MEMORANDUM IN SUPPORT OF MOTION OF CRAIG SPRINGSTEAD, MARIA MEO, DANIEL BASTEK, MICHAEL STORM, BETH ANN LAMBO, RICHARD KOHLER, MARIA KASHATUS, AND WILSON SHEPPARD TO INTERVENE PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 24

John E. Riley William J. Murray, Jr. VAIRA & RILEY, P.C. 1600 Market Street, Suite 2650 Philadelphia, Pennsylvania 19103 (215) 789-9405 (215) 751-9420 (fax)
And
Benjamin J. Hoffart SIDLEY AUSTIN LLP 787 Seventh Avenue New York, New York 10019 (212) 839-5300 (212) 839-5599 (fax)
Attorneys for Craig Springstead, Grace Meo, Daniel Bastek, Michael Storm, Beth Ann Lambo, Richard Kohler, Maria Kashatus, and Wilson Sheppard

i

Case 1:09-cv-01182-JEJ Document 254 Filed 08/02/11 Page 2 of 17 TABLE OF CONTENTS Page
I. THE SPRINGSTEAD OBJECTORS SHOULD BE ALLOWED TO INTERVENE AS A MATTER OF RIGHT................................................................................................8 A. The Springstead Objectors’ Application is Timely. ................................................9 B. The Springstead Objectors Have an Interest in Selecting the Form of Care Most Appropriate to Their Individual Needs...........................................................9 C. The Springstead Objectors’ Legally Recognized Interests are at Risk in the Present Litigation. ..................................................................................................11 D. The Springstead Objectors’ Interests Are Not Adequately Represented in the Litigation. ...............................................................................................................15
II. THE SPRINGSTEAD OBJECTORS ALSO SATISFY THE CRITERIA TO INTERVENE BY PERMISSION......................................................................................16
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TABLE OF AUTHORITIES

CASES

Page(s)

Amerimar Cherry Hill Assocs., L.P. v. U.S. Fidelity & Guar. Co., No. 90-3354, 1991 WL 137153 (E.D. Pa. July 22, 1991) .........................................................9

Brody ex rel. Sugzdinis v. Spang, 957 F.2d 1108 (3d Cir. 1992)...................................................................................................17

Cont’l Cas. Co. v. SSM Group, Inc., No. 94-7789, 1995 WL 422780 (E.D. Pa. July 13, 1995) .......................................................17

Hyland v. Harrison, No. Civ.A. 05-162-JJF, 2006 WL 288247 (D. Del. Feb. 7, 2006) ..........................................10

In re Bear, 44 Pa. D. & C. 4th 225 (C.P. Dauphin 1999) ..........................................................................11

In re Cmty. Bank of N. Va., 418 F.3d 277 (3d Cir. 2005).................................................................................................9, 10

In re Easly, 46 Pa. D. & C. 4th 374 (C.P. Venango 2000), aff’d 771 A.2d 844 (Pa. Cmmw. Ct. 2001) (en banc) ........................................................................................................................11

Kleissler v. U.S. Forest Serv., 157 F.3d 964 (3d Cir. 1998).......................................................................................................9

NLRB v. Frazier, 144 F.R.D. 650 (D.N.J. 1992)....................................................................................................9

Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999)......................................................................................................... passim

OTHER AUTHORITIES

28 C.F.R. § 35.130(e)(1) ................................................................................................................10

Federal Rule of Civil Procedure 24(a)(2) ..................................................................................9, 18

Federal Rule of Civil Procedure 24(b).....................................................................................17, 18

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Craig Springstead, by and through his father and guardian, Bertin Springstead, Maria Meo, by and through her mother and guardian, Grace Meo, Daniel Bastek, by and through his father and guardian, John Bastek, Michael Storm, by and through his guardian, Polly Spare, Beth Ann Lambo, by and through her father and guardian, Joseph Lambo, Richard Kohler, by and through his sister and guardian, Sara Fuller, Maria Kashatus, by and through her father and guardian, Thomas Kashatus, and Wilson Sheppard, by and through his brother and next friend, Alfred Sheppard (collectively, the “Springstead Objectors”), by and through their counsel, Vaira & Riley, P.C. and Sidley Austin LLP, hereby submit this memorandum in support of their Motion to Intervene in the above-captioned matter.
FACTS AND PROCEDURAL HISTORY A. Commencement of the Lawsuit and the Unopposed Class Certification. This action was commenced on June 22, 2009, by the five named Plaintiffs alleging in their Complaint (Dkt. #1) that the manner in which Pennsylvania provides services to the developmentally disabled violates the Americans with Disabilities Act, the Rehabilitation Act, and the Supreme Court’s decision in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999). In their first and Amended Complaints (Dkt. #9), Plaintiffs primarily complain that the Defendants’ provision of services in public intermediate care facilities for the mentally retarded (“ICFs/MR”) – comprehensive facilities that combine residential, recreational, and medical care in one facility – violates the Supreme Court’s Olmstead holding that persons with developmental disabilities have the right to choose to live in the “most integrated setting appropriate” to their needs and desires. The five Plaintiffs alleged in their Amended Complaint that ICF/MR care is not “appropriate to the needs of any individual resident of those facilities,” and sought relief on behalf of a class including:
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All persons who: (1) currently or in the future will reside in one of Pennsylvania’s state-operated intermediate care facilities for persons with mental retardation; (2) could reside in the community with appropriate services and supports; and (3) do not or would not oppose community placement. (Am. Compl., Dkt. #9, at ¶¶ 57, 65-66.) No analysis or evaluation of the purported class was made at that time, or indeed, even today. Accordingly, Plaintiffs’ allegation that ICF/MR care is not appropriate for anyone is based exclusively upon an ideological position, not medical analysis. Based on this unsupported, but also unchallenged, assumption that community care is the only appropriate “choice” for the developmentally disabled and their families, Plaintiffs filed an Unopposed Motion to Certify a Class on August 31, 2009 without conducting any discovery, survey, or analysis to determine how many of the approximately 1,200 individuals in public ICFs/MR desire or actually could benefit from community care. Moreover, no one made any effort to contact the legal guardians of ICF/MR residents, who – unlike Plaintiffs’ counsel – are the individuals with the legal right to make such placement decisions. Rather, Plaintiffs’ Amended Complaint states that the class is intended to include all or virtually all of the more than 1,200 individuals residing in ICF/MR care at the time this case was initiated. (Dkt. #9, at ¶ 16.) Defendants conceded this point without caveat, exception, or clarification, and did not oppose Plaintiff’s motion for class certification on this or any other ground. The Court certified the class two days later. (Dkt. #17.) B. The Springstead Objectors. Craig Springstead is a 50-year-old resident of Selinsgrove Center, a public ICF/MR that has been his home for 28 years. (Intervenors’ Resp. to Am. Compl., Dkt. # 28, ¶ A.) Mr. Springstead has been diagnosed with moderate mental retardation, bipolar disorder, mood disorder with psychotic features, generalized anxiety disorder, and intermittent explosive
5

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disorder. (Id.) Michael Storm is a 56 year-old resident of Hamburg Center, a public ICF/MR, who is developmentally disabled and is dependant upon both tracheotomy and feeding tubes. (Id., ¶ D.) Beth Ann Lambo is a 43-year-old resident of Polk Center, a public ICF/MR, where she has lived for 40 years. (Id., ¶ E.) Ms. Lambo has been diagnosed with profound mental retardation, autism, and disruptive behavior disorder; she has a mental age of 18 months and is unable to detect danger. (Id.) Richard Kohler is a 60-year-old resident of Selinsgrove Center – where he has lived since 1968 – who is developmentally disabled, deaf, and blind. (Id., ¶ G.) Both Maria Kashatus and Wilson H. Sheppard are in their forties, have been residents of White Haven Center, a public ICF/MR, for most of their lives, and are developmentally disabled and non-verbal; Ms. Kashatus is also restricted to a wheelchair. (Id., ¶¶ H, I.) Maria Meo is a 51year-old resident of Ebensburg Center, which has been her home since 1967. (Id., ¶ B.) She is developmentally disabled but independent and able to make her wishes known. (Id.) Finally, Daniel Bastek is a 38-year-old resident of Hamburg Center, where he has lived for 20 years; he has been diagnosed with moderate mental retardation, bipolar disorder, and pervasive developmental disorder. (Id., ¶ C.) The Springstead Objectors have not and do not oppose Plaintiffs’ right to choose community care for themselves, but have and continue to object to Plaintiffs’ blanket pursuit of class-wide relief that will impair the Springstead Objectors’ interest in preserving their individual right to choose ICF/MR care.
C. The Springstead Objectors’ Attempts to be Heard. Recognizing that neither Plaintiffs nor Defendants represented the interests of ICF/MR residents who do not want to be forced into community care, the Springstead Objectors – residents of ICFs/MR who do not wish to be forced out of their current homes and do not believe
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that community placement provides the best or most appropriate care option for them – moved to intervene. (Dkt. #27.)1
Plaintiffs opposed the Springstead Objectors’ intervention (Dkt. #34), and on March 10, 2010, the Court denied the Springstead Objectors’ motion based upon findings that (1) “the definition of the [certified class] specifically excludes [those who] oppose community placement,” (2) that Defendants adequately represented the Springstead Objectors’ personal interests simply by defending the suit on the ground that DPW does not have funding to provide all of the accommodations sought by Plaintiffs, and (3) that the Springstead Objectors’ views “would not sufficiently add anything to the litigation.” (Mem. & Order, Dkt. #41.)
The Springstead Objectors timely filed an appeal of the Court’s Order with the Third Circuit Court of Appeals on March 30, 2010. (Dkt. ## 42, 43.) Before the Third Circuit issued a briefing schedule, Plaintiffs and Defendants filed cross-motions for Summary Judgment with the Court on June 23, 2010 and June 29, 2010. (Dkt. ## 48, 51.) After settlement negotiations before a federal Magistrate Judge failed to resolve the case, the Court issued a Memorandum and Order on January 27, 2011, holding that Defendants are not in compliance with the integration mandates of the ADA and Rehabilitation Act, thereby granting, with respect to liability only, Plaintiffs’ Motion for Summary Judgment and scheduling further proceedings to determine the appropriate scope of injunctive relief. (Dkt. #88.) On April 5, 2011, the Third Circuit Court of Appeals entered a judgment affirming the Court’s March 10, 2010 Order denying the Springstead Objectors’ proposed intervention. (Dkt. #98.)
1 At the time of their original, proposed intervention, the Springstead Objectors were defined and referred to as the “Springstead Intervenors.” In addition to those residents currently defined as the Springstead Objectors, the Springstead Intervenors included Mr. Richard Clarke, a 52 year-old resident of the Polk center who passed away earlier this year.
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D. The Proposed Settlement Shortly thereafter, on April 29, 2011, the Court indicated in an Order that Plaintiffs and Defendants had given the Court notice that a settlement had been reached. (Dkt. #102.) On May 26, 2011 Plaintiffs filed an Unopposed Motion for Preliminary Approval of the Proposed Class Action Settlement. (Dkt. #105.) The Court granted Plaintiffs’ Motion, preliminarily approving the settlement the next day, May 27, 2011 (Dkt. #106), and scheduled a fairness hearing for August 22, 2011.
STATEMENT OF QUESTION INVOLVED Whether the Springstead Objectors are entitled to intervene in this matter pursuant to Rule 24 of the Federal Rules of Civil Procedure, when their application is timely, where they have legally protectable interests that will be impaired by the resolution of this lawsuit, and where those interests are not adequately represented by any party to the litigation.
ARGUMENT I. THE SPRINGSTEAD OBJECTORS SHOULD BE ALLOWED TO INTERVENE
AS A MATTER OF RIGHT. To intervene as a matter of right pursuant to Federal Rule of Civil Procedure 24(a)(2), “the prospective intervenor must establish that: (1) the application for intervention is timely; (2) the applicant has a sufficient interest in the litigation; (3) the interest may be affected or impaired, as a practical matter by the disposition of the action; and (4) the interest is not adequately represented by an existing party in the litigation.” In re Cmty. Bank of N. Va., 418 F.3d 277, 314 (3d Cir. 2005) (citation omitted); see also Kleissler v. U.S. Forest Serv., 157 F.3d 964, 969 (3d Cir. 1998). “Rule 24(a) is to be liberally construed in favor of intervention,” and any party who meets these criteria “must” be permitted to intervene. NLRB v. Frazier, 144 F.R.D. 650, 655 (D.N.J. 1992) (citations omitted); Fed. R. Civ. P. 24(a)(2); see also Amerimar
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Cherry Hill Assocs., L.P. v. U.S. Fidelity & Guar. Co., No. 90-3354, 1991 WL 137153, at *4 (E.D. Pa. July 22, 1991) (“Rule 24(a)(2) restricts the district court’s discretion by providing that an applicant shall be permitted to intervene if he or she satisfies the requirements of the Rule.”) (citing Harris v. Pernsley, 820 F.2d 592 (3d Cir. 1987)). The Springstead Objectors satisfy each of these elements and should be allowed to intervene in the present action as a matter of right.
A. The Springstead Objectors’ Application is Timely. The present application is timely because the Springstead Objectors primarily seek to intervene in the present action to object to the proposed settlement agreement and this application is filed before the Court-approved period for objecting to that settlement agreement has expired. In considering whether an application is timely, the factors the court considers are: “(1) the stage of the proceeding; (2) the prejudice that delay may cause the parties; and (3) the reason for the delay.” Cmty. Bank of N. Va., 418 F.3d at 314 (citation omitted); see also Hyland v. Harrison, No. Civ.A. 05-162-JJF, 2006 WL 288247, at *4 (D. Del. Feb. 7, 2006) (citation omitted). Notably, a petition to intervene is considered timely when, as here, intervention is sought within the time for responses set forth in a class action settlement. Cmty. Bank of N. Va., 418 F.3d at 314-15. B. The Springstead Objectors Have an Interest in Selecting the Form of Care
Most Appropriate to Their Individual Needs. The Springstead Objectors have a legally-recognized interest in preserving their ability to select institutional care as the most appropriate form of care for their individual needs. In Olmstead v. L.C. ex rel. Zimring, the United States Supreme Court found that disabled individuals possess a significant interest in maintaining their institutional care environments. Notably, the Supreme Court recognized that “the ADA is not reasonably read to impel States to phase out institutions, placing patients in need of close care at risk.” Olmstead, 527 U.S. at 604.
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Moreover, Olmstead expressly rejected the one-size-fits-all approach advocated by Plaintiffs and recognized that community-based care is not always the most appropriate form of care for all mentally-disabled individuals:
Unjustified isolation, we hold, is properly regarded as discrimination based on disability. But we recognize, as well, the States’ need to maintain a range of facilities for the care and treatment of persons with diverse mental disabilities. Olmstead, 527 U.S. at 597. Both Olmstead and the applicable federal regulations affirm the Springstead Objectors and other ICF/MR residents have a right to choose institutional care over community-based care. Id. at 602 (holding there is no “federal requirement that communitybased treatment be imposed on patients who do not desire it”) (citing 28 C.F.R. § 35.130(e)(1) (1988) (“Nothing in this part shall be construed to require an individual with a disability to accept an accommodation . . . which such individual chooses not to accept.”); 28 C.F.R § 35, App. A, p. 450 (1998) (“[P]ersons with disabilities must be provided the option of declining to accept a particular accommodation.”)). As the Olmstead court observed, “it [is not] the ADA’s mission to drive States to move institutionalized patients into an inappropriate setting” and “for [some] individuals, no placement outside the institution may ever be appropriate.” Olmstead, 527 U.S. at 605. The Springstead Objectors are each in need of close, constant care and are unable to live in community care facilities. As they are entirely reliant on the care provided in the ICFs/MR that have been their homes for 20, 30, even 40 years,2 the Springstead Objectors have a clearly defined interest in preserving ICF/MR care and to resist efforts to impose inappropriate care arrangements upon them.
2 Pennsylvania law recognizes a right of developmentally disabled residents of institutional facilities to remain in the facilities they call home. See In re Easly, 46 Pa. D. & C. 4th 374, 412-14 (C.P. Venango 2000), aff’d 771 A.2d 844 (Pa. Cmmw. Ct. 2001) (en banc); In re Bear, 44 Pa. D. & C. 4th 225, 260 (C.P. Dauphin 1999).
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C. The Springstead Objectors’ Legally Recognized Interests are at Risk in the Present Litigation.
The Springstead Objectors’ legally-recognized interests are in imminent danger in the present litigation. First, the proposed settlement agreement, if approved, will prevent the Springstead Objectors from selecting the form of care that is appropriate to their individual needs. This right was explicitly recognized by the Supreme Court in Olmstead when it held that that the Americans with Disabilities Act affords persons with developmental disabilities the right to choose to live in the “most integrated setting appropriate,” taking into account the available resources and the individual’s desires and needs. 527 U.S. at 595.
If the proposed settlement is approved, however, the Springstead Intervenors and other ICF/MR residents will be required to affirmatively oppose community placement, even though most ICF/MR residents are not capable of making and communicating care decisions. Under the protocol established by the proposed settlement, ICF/MR residents will undergo an annual assessment in which either an ICF/MR social worker or a “Community Transition Specialist,” working with a DRN-employed Facility Advocate will determine who has opposed community placement. (Id. at III.2.a.) If an ICF/MR resident “does not express opposition to considering community placement” during this assessment, he or she will be placed on a list prioritizing them for community placement. (Id. at III.2.b.) ICF/MR residents that do not affirmatively express opposition to community placement will be removed from this list only when involved family members or guardians make their affirmative opposition to community placement known. (Id. at III.2.b.1 & III.2.b.2.)
While Olmstead found that the ADA guarantees that the developmentally disabled may choose to live in the most integrated settings appropriate to individuals’ desires and needs, the
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proposed settlement plan envisions that ICF/MR residents who have expressed no indication that they desire community placement will be prioritized for community placement. The proposed settlement misconstrues the tenet of affirmative choice that is the hallmark of the Supreme Court’s Olmstead decision. As the Olmstead court made clear, there is no “federal requirement that community-based treatment be imposed on patients who do not desire it.” 527 U.S. at 602.
In reality, the proposed settlement provides that the majority of decisions concerning whether institutional or community care represents the “most integrated setting” appropriate to ICF/MR residents’ needs will be made, not by the residents or their guardians, but by persons employed by Plaintiffs’ DRN counsel. As the statistics maintained by the state ICFs/MR show, 890 of the 1,207 current residents of ICFs/MR are classified as possessing a profound mental disability.3 These same statistics show that 712 of the 1,207 current ICF/MR residents are classified as “non-verbal.” Thus, nearly 75% of the current residents of state-run ICFs/MR will be unable to express any opposition to community placement.
Moreover, the vast majority of current ICF/MR residents unable to voice their opposition to community placement do not have legal guardians to state that opposition on their behalf. As the statistics Plaintiffs provided in support of their motion for summary judgment reveal, 1004 of the 1,223 residents of state-run ICFs/MR – 82% of the ICF/MR population – did not have a legal guardian. The settlement agreement also fails to provide any assurance that guardians’ or family members’ opposition to community care will have any permanence in the event that the guardian or family member passes away or is otherwise unable to voice their annual opposition to community care for their ward or loved one. Thus, the procedure outlined in the proposed settlement agreement realistically provides that the choice between ICFs/MR and community
3 These state center demographics previously were provided to the Court as exhibits to the Springstead Objectors’ Supplemental Objections. (See Dkt. #221, Ex. 2.)
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care will be made for most ICF/MR residents by employees of DRN who categorically believe that state-operated ICFs/MR are not the most integrated settings appropriate to the needs of any individual resident of those facilities. (See Pl. Amend. Compl., Dkt. #9, ¶ 66.)
The Court determined previously that the Springstead Objectors’ opposition to community care excludes them from the relief sought by Plaintiffs, but as the proposed settlement makes clear, there is no guarantee that the Springstead Objectors’ present opposition will have any permanence if their guardians and loved ones somehow become unable to express their opposition to community placement. What is worse, given the vast number of ICF/MR residents who presently do not have guardians to oppose community placement, the Springstead Objectors’ current opposition may not be enough to preserve the ICF/MR facilities they rely on for their care and that they call home. This is because the proposed settlement agreement’ “integration plan” would significantly depopulate state-run ICF/MR centers and deprive ICFs/MR of necessary funding, thereby constructively imposing community care upon on the Springstead Objectors regardless of their desire or opposition to being placed in a community care facility.
The plan provided in the proposed settlement agreement would compel Defendants to move at least 400 ICF/MR residents – roughly 35% of the current ICF/MR population – into community care over the next five years.4 (Proposed Settlement Agreement, Dkt. #105, Ex.2, V.1.a-e.) The integration plan also requires Defendant DPW to make community care funding “one of its top budget priorities,” to consider “consolidating the budget lines for state ICFs/MR and Community Waiver services,” and, prior to consolidating the budget lines, to “shift funds
4 The non-opposition of profoundly retarded, non-verbal ICF/MR residents without guardians to speak on their behalf is critical to achieving the community placement numbers called for by the proposed settlement agreement.
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from the carry-forward budget for state ICFs/MR to the Community Waiver services budget.” (Id.)5
Without question, these provisions will impair the quality of care in state-run ICFs/MR
and will result in closure of most ICFs/MR. While Plaintiffs will no doubt argue that the
proposed settlement agreement says nothing about closing centers or making ICF/MR care
unavailable, Plaintiffs are staunch proponents of closing ICF/MR facilities and using the funding
from shuttered facilities to promote community care initiatives. (See Pl. Mem. in Supp. Sum. J.,
Dkt. #49, at 11-12 (criticizing DPW for failing to close the Hamburg and Selinsgrove Centers to “maximize funding” for community care initiatives)).6
The Third Circuit Court of Appeals has expressly stated that disadvantaging ICF/MR
residents by transferring funds to foster community placements is not acceptable under
Olmstead. In Frederick L. v. Department of Public Welfare of Pennsylvania, a case involving
the community placement of mental health patients from a state-run facility to community
settings, the Third Circuit observed:
Assuming a limited pool of budgetary resources, if DPW had siphoned off monies appropriated for institutional care for mental health patients in order to increase community placements, DPW would have run afoul of Olmstead prohibition on favoring those “who commenced civil actions” at the expense of institutionalized mental health patients who are not before the court. Any effort to institute fund-
5 These efforts to deplete state-run ICFs/MR of residents and funding are further bolstered by the proposed settlement agreement’s education initiatives, which are decidedly pro-community care, do not provide a full range of information and seek to impose community care upon ICF/MR residents by impeding their ability to conduct a meaningful evaluation of available care options. Notably, the proposed settlement agreement provides for a “Community Partnership Steering Committee,” that, true to its name, is to be comprised predominately of community care advocates: a DRN representative, a provider representative, a representative of the groups that administer community care programs for DPW, a community care resident, a community care resident’s family member, and a representative of the Office of Developmental Programs. (Id. at IV.1.a.) The goal of this Committee is to conduct an aggressive campaign steering ICF/MR residents into community care elections. 6 The proposed settlement agreement provides Plaintiffs’ DRN counsel with a $432,500 fee award. DRN is a publicly funded organization, and the Springstead Objectors respectfully submit that these funds would be better spent providing care either the developmentally disabled residents of either community care or ICF/MR facilities.
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shifting that would disadvantage other segments of the mentally disabled population would thus fail under Olmstead. 364 F.3d 487, 497 (3d Cir. 2004) (quoting Olmstead, 527 U.S. at 604-06). Defendants have noted that severe financial constraints already limit the services DPW is able to provide. (Defs.’ Mem. in Supp. Sum. J., Dkt. #53, at 4.) Depleting ICFs/MR of residents and limited, necessary funding undoubtedly will result in the closure of ICF/MR facilities and impair the level of care they provide to the developmentally disabled. Thus, the “viable integration plan” provided by the settlement agreement will, contrary to the tenets of Olmstead, impose community care upon the Springstead Objectors for whom ICF/MR care is the most appropriate and integrated form of care for their unique and individual needs. D. The Springstead Objectors’ Interests Are Not Adequately Represented in the
Litigation. There is no question that neither the Plaintiffs’ DRN counsel nor Defendant DPW represents the Springstead Objectors’ interests in the present litigation. Rather, Plaintiffs and DRN have doggedly pursued their community-only ideology without care or regard to the views or concerns of the Springstead Objectors who cannot reside in community care or do not currently wish to leave their ICF/MR homes. Moreover, when the Springstead Objectors have sought to provide the Court with their views on the claims Plaintiffs have asserted, Plaintiffs’ DRN counsel routinely have endeavored to prevent the expression of these views. For their part, the Defendants have stipulated to class definitions that place the Springstead Objectors in great risk of harm and have now agreed to and seek approval of a settlement agreement that will impose community care upon the Springstead Objectors in direct violation of the rights guaranteed to them by the Supreme Court’s Olmstead decision.
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II. THE SPRINGSTEAD OBJECTORS ALSO SATISFY THE CRITERIA TO INTERVENE BY PERMISSION. Should the Court deny intervention as of right, the Springstead Objectors respectfully
request that the Court allow them to intervene permissively pursuant to Federal Rule of Civil Procedure 24(b). “Permissive intervention is available upon timely application ‘when an applicant’s claim or defense and the main action have a question of law or fact in common.’” Brody ex rel. Sugzdinis v. Spang, 957 F.2d 1108, 1115 (3d Cir. 1992) (quoting Fed. R. Civ. P. 24(b)). Whether to grant such permission is entirely within the district court’s discretion. Cont’l Cas. Co. v. SSM Group, Inc., No. 94-7789, 1995 WL 422780, at *5 (E.D. Pa. July 13, 1995) (citation omitted).
In deciding whether to grant permissive intervention, the potential commonality of the intervenors’ “claim or defense” with the pending action have been broadly defined. See id. at *5 (citation omitted). That requirement is easily met here. As already discussed above and in the Springstead Objectors’ Supplemental Objections (Dkt. #221), the Springstead Objectors’ interests will directly be harmed by the Plaintiffs’ claims and the proposed settlement agreement they have entered with Defendants to attempt to settle those claims.7
7 Courts often also analyze whether allowing permissive intervention will unduly delay the litigation. See, e.g., Cont’l Cas. Co., 1995 WL 422780, at *6. As the Springstead Objectors seek to intervene to present the Court with objections to the proposed class settlement and as this application has been timely made within the objection period proposed by Plaintiffs in the class settlement notice provisions that have been approved by the Court, there is no risk that granting the Springstead Objectors’ intervention would unduly delay the litigation.
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CONCLUSION The Springstead Objectors respectfully request that the Court grand their motion for intervention pursuant to Rule 24(a)(2) of the Federal Rules of Civil Procedure. In the alternative, the Springstead Objectors respectfully request that the Court grant permission to intervene pursuant to Rule 24(b) of the Federal Rules of Civil Procedure.
Respectfully submitted,

Dated: Philadelphia, Pennsylvania August 2, 2011
John
1600 Philadelphia, (215) (215)

VAIRA & RILEY, P.C.

By: /s/ John E. Riley

E. Riley

PA

ID# 22504

W

illiam J. Murray, Jr.

PA

ID# 73917

Market Street, Suite 2650

Pennsylvania 19103

789-9405

751-9420 (fax)

SIDLEY AUSTIN LLP
Benjamin J. Hoffart 787 Seventh Avenue New York, New York 10019 (212) 839-5300 (212) 839-5599 (fax)

Attorneys for Craig Springstead, Grace Meo, Daniel Bastek, Michael Storm, Beth Ann Lambo, Richard Kohler, Maria Kashatus, and Wilson Sheppard

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 Case 1:09-cv-01182-JEJ Document 223 Filed 08/02/11 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FRANKLIN BENJAMIN, by and through his next friend, Andreé Yock; RICHARD GROGG and FRANK EDGETT, by and through their next friend, Joyce McCarthy; SYLVIA BALDWIN, by and through her next friend Shirl Meyers; ANTHONY BEARD, by and through his next friend, Nicole Thurman, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA and GARY ALEXANDER, in his official capacity as Secretary of Public Welfare of the Commonwealth of Pennsylvania;
Defendants.

) ) ) ) ) ) Filed via ECF System ) ) Civ. No. 1:09-cv-1182 (JEJ) ) ) (Judge Jones) ) ) Complaint filed June 22, 2009 ) ) Class Action ) ) ) ) ) ) )

STATEMENT OF SUPPORT BY THE UNITED STATES The United States submits this Statement in support of final approval of the proposed Settlement Agreement in accordance with this Court’s Order of May 27, 2011.1 Order, May 27, 2011, ECF No. 106. The proposed Settlement Agreement

1 The Settlement Agreement can be found attached to the Unopposed Motion to Approve Consent Judgment, Exhibit 2, ECF No. 105-2.

Case 1:09-cv-01182-JEJ Document 223 Filed 08/02/11 Page 2 of 20
seeks to remedy Defendants’ violations of title II of the Americans with
Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101-12213, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”).2 See Mem. &
Order, Jan. 27, 2011, ECF No. 88. The Department of Justice has enforcement
authority for and issues regulations implementing title II and thus has a strong
interest in the resolution of this lawsuit.
The United States supports the proposed Settlement Agreement because it
advances the important public interest in community integration, see Olmstead v.
L.C., 527 U.S. 581 (1999), and because it fairly, reasonably, and adequately
affords relief to class members. Accordingly, this Court should grant final
approval of the Settlement Agreement.
The United States plans to attend the hearing on final approval of the proposed Settlement Agreement scheduled for August 22, 2011, and requests this Court’s leave to participate in the hearing. 2 In all ways relevant to this discussion, the ADA and Section 504 of the Rehabilitation Act are generally construed to impose similar requirements. See Disabled in Action of Pa. v. Se. Pa. Transp. Auth., 635 F.3d 87, 91 n.5 (3d Cir. 2011); Pa. Prot. & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d 374, 379 n.3 (3d Cir. 2005). This principle follows from the similar language employed in the two acts. It also derives from the congressional directive that implementation and interpretation of the two acts “be coordinated to prevent[ ] imposition of inconsistent or conflicting standards for the same requirements under the two statutes.” Baird ex rel. Baird v. Rose, 192 F.3d 462, 468-69 (4th Cir. 1999) (citing 42 U.S.C. § 12117(b)) (alteration in original; internal quotation marks omitted).
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I. STATUTORY AND REGULATORY BACKGROUND Congress enacted the ADA 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). The underlying goals of the ADA are to afford persons with disabilities “full participation, independent living, and economic self-sufficiency.” Id. § 12101(a)(7). 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.” Id. § 12101(a)(2). For those reasons, Congress prohibited discrimination against individuals with disabilities by public entities. Specifically, title II of the ADA decrees 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. As directed by Congress, the Attorney General issued regulations implementing title II, which are based on Section 504. See 42 U.S.C. § 12134(a). These regulations require public entities 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). The preamble to the
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“integration regulation” explains that “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. § 35.130(d), app. A, at 572 (2010).
Twelve years ago, the Supreme Court held that under title II of the ADA and its integration regulation, “[u]njustified isolation . . . is properly regarded as discrimination based on disability.” Olmstead, 527 U.S. at 597. The Court recognized that such segregation is a form of discrimination because the institutionalization of persons who can benefit from community settings “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life” and because “confinement in an institution severely diminishes the everyday life activities of individuals.” Id. at 600-01.
Public entities are required to provide community-based services for persons with disabilities who would otherwise be entitled to institutional services when (a) community placement is appropriate; (b) the affected persons do not oppose such treatment; and (c) the placement can be reasonably accommodated, taking into account the resources available to the entity and the needs of others who are receiving disability services from the entity. Olmstead, 527 U.S. at 607. To comply with the ADA’s integration requirement, a state must reasonably modify its policies, procedures, or practices when necessary to avoid discrimination. See
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28 C.F.R. § 35.130(b)(7). The obligation to make reasonable modifications may be excused only where a state demonstrates that the requested modifications would “fundamentally alter” the programs or services at issue. Id.; see also Olmstead, 527 U.S. at 604-07.
II. SUMMARY OF FACTS Plaintiffs filed this lawsuit on June 22, 2009, on behalf of themselves and all other persons who: (1) do or will reside in one of Pennsylvania’s large, state-run, congregate care institutions3; (2) could live in the community if provided with appropriate services; and (3) do not or would not oppose such a placement. Compl. ¶ 15, ECF No. 1. Plaintiffs amended the complaint on July 14, 2009, alleging that Defendants violated title II of the ADA and Section 504 of the Rehabilitation Act by unnecessarily segregating class members in large congregate care institutions. Amend. Compl. ¶ 4, ECF No. 9. Specifically, Plaintiffs alleged that Defendants unnecessarily institutionalized Plaintiffs – for years, if not decades – who can and want to reside in the community if provided with appropriate services and supports. See id. ¶¶ 16, 18, 21-48. This Court certified the class on September 2, 2009. See Order, Sept. 2, 2009, ECF No. 17.
3 These facilities are known as “intermediate care facilities for persons with developmental disabilities” (“ICF/DD”).
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In November 2009, a group of individuals living in Pennsylvania’s state-run congregate care institutions who opposed receiving services in the community then attempted to intervene in this suit. Proposed Mot. to Intervene, Nov. 11, 2009, ECF No. 27. The Court denied the motion, finding that definition of the class specifically excluded the prospective intervenors because they opposed community placement, and that they thus lacked a “significantly protectable interest in the litigation.” Mem. & Order at 11-12, Mar. 10, 2010, ECF No. 41. The Third Circuit affirmed this Court’s denial of intervention on April 27, 2011. Op. at 3-4, ECF No. 101-1.
Plaintiffs moved for summary judgment granting their claims for relief on June 23, 2010, and Defendants cross-moved for summary judgment on June 29, 2010. Mot. for Summ. J., June 23, 2010, ECF No. 49; Mot. for Summ. J., June 29, 2010, ECF No. 51. The United States, as amicus curiae, submitted a brief in support of Plaintiffs’ motion on July 7, 2010. Br. in Supp., Jul. 7, 2010, ECF No. 62. The Court then granted summary judgment in favor of the Plaintiff class, ruling that Defendants violated title II of the ADA and Section 504 by failing to offer community services to Plaintiffs and class members. Mem. & Order, Jan. 27, 2011, ECF No. 88. The parties subsequently negotiated a proposed Settlement Agreement and filed it with the Court. See Mot. for Prelim. Approval, ECF No. 105; Settlement Agreement, ECF No. 105-2. The parties now seek the Court’s
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approval of the Agreement as a fair, reasonable, and adequate settlement of the Plaintiff class’ claims.
III. ARGUMENT Federal courts favor settlement of class action litigation, given the “overriding public interest in settling complex litigation . . . .” In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 535 (3d Cir. 2004). There is an “especially strong” presumption in favor of approval of voluntary settlements in “‘class actions . . . where substantial judicial resources can be conserved by avoiding formal litigation.’” Ehrheart v. Verizon Wireless, 609 F.3d 590, 595 (3d Cir. 2010) (quoting In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liability Litig., 55 F.3d 768, 784 (3d Cir. 1995)). Before approving a proposed settlement, a court must determine that the agreement is “fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). In Girsh v. Jepson, the Third Circuit identified nine non-exclusive factors to evaluate the fairness of a proposed settlement: (1) [T]he complexity, expense and likely duration of the litigation . . . ; (2) the reaction of the class to the settlement . . . ; (3) the stage of the proceedings and the amount of discovery completed . . . ; (4) the risks of establishing liability. . . ; (5) the risks of establishing damages . . . ; (6) the risks of maintaining the class action through the trial . . . ; (7) the ability of the defendants to withstand a greater judgment . . . ; (8) the range of reasonableness of the settlement fund in the light of the best possible recovery . . . ; [and] (9) the range of reasonableness of the
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settlement fund to a possible recovery in light of all the attendant risks of litigation . . . .
521 F.2d 153, 157 (3d Cir. 1975) (quoting City of Detroit v. Grinell Corp., 495
F.2d 448, 463 (2d Cir. 1974)) (internal quotations omitted). Since then, the Third
Circuit has expanded the Girsh factors to include additional, non-exclusive factors.
See In re Prudential Ins. Co. Am. Sales Prac. Litig. Agent Actions, 148 F.3d 283,
323 (3d Cir. 1998).4 While a district court must make findings as to each of the
nine Girsh factors before approving a settlement, a court may consider additional
factors where appropriate and “useful for a thoroughgoing analysis . . . .” In re Pet
Food Prods. Liability Litig., 629 F.3d 333, 350 (3d Cir. 2010) (citing Prudential,
148 F.3d at 323). An analysis of the relevant factors indicates that the proposed
4 The Prudential court laid out the following factors:
[T]he maturity of the underlying substantive issues, as measured by experience in adjudicating individual actions, the development of scientific knowledge, the extent of discovery on the merits, and other factors that bear on the ability to assess the probable outcome of a trial on the merits of liability and individual damages; the existence and probable outcome of claims by other classes and subclasses; the comparison between the results achieved by the settlement for individual class or subclass members and the results achieved – or likely to be achieved – for other claimants; whether class or subclass members are accorded the right to opt out of the settlement; whether any provisions for attorneys’ fees are reasonable; and whether the procedure for processing individual claims under the settlement is fair and reasonable.
148 F.3d 323.
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Settlement Agreement is fair, reasonable, and adequate, and thus merits this Court’s final approval.
A. Continued Litigation Would Be Complex, Expensive, and Lengthy A trial to determine the appropriate remedy for Defendants’ discrimination
would be complex, lengthy, expensive, and most importantly, unnecessary. A remedy phase would involve complex policy questions about how to structure and fund the appropriate relief that are more easily answered by experts in the field and policymakers than by the courts. See In re AT&T Corp., 455 F.3d 160, 166, 17071 (3d Cir. 2008) (where remaining factual issue following partial summary judgment was “not ‘straightforward or simple’” first Girsh factor weighed in favor of approval of settlement); see also Mem. & Order at 22, Jan. 27, 2011, ECF No. 88 (“[T]he present posture of this case is such that we are in no position to issue an injunction given the need for extensive detail therein . . . .”). Addressing the question of remedy in an adversarial setting would also involve the testimony of numerous experts at significant expense, and a possible appeal to the Third Circuit, adding further expense and time. Here, all parties have agreed to the terms of the proposed Settlement Agreement, obviating the need for what would be a complex, lengthy, and expensive continuation to the litigation. The first Girsh factor thus weighs in favor of settlement.
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B. The Few Objections to the Settlement Agreement Should Not Be Accorded Significant Weight The Third Circuit has warned that courts should be “cautious about inferring
support from a small number of objectors to a sophisticated settlement.” Prudential, 148 F.3d at 318 (quoting In re Gen. Motors, 55 F.3d at 812). As of August 1, 2011, the Court received requests on behalf of 77 institutionalized individuals asking that they not be moved from their current placements. See, e.g., Letters, ECF Nos. 107, 110, 114-19, 121-29, 130-31, 134. A handful of additional writers who do not represent class members state their general support for Pennsylvania’s state-run institutions, and their wish for them to remain open. See, e.g., Letters, ECF Nos., 120, 129, 132-33, 142, 190, 198, 204, 218. Out of a potential class of 1272 individuals, see Am. Compl. ¶ 16, ECF No. 9, only 58, or 4.6%, raise concerns about the Agreement. Of these, the most common concern is the payment of legal fees to Plaintiffs’ counsel – not the substance of the Agreement. See, e.g., Letters, ECF Nos. 110, 116-119, 124, 125, 126, 128, 134, 138-41, 143, 149, 151, 153, 155, 158-60, 163-64, 169, 172-73, 176-81.
Moreover, the few writers who raise concerns about the Agreement are not class members, nor do they represent class members. The parties have explicitly defined the class to include all persons who “do not or would not oppose community placement.” Settlement Agreement Pt. II ¶ 3, ECF No. 105-2. These
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writers uniformly oppose the idea of community placement for themselves or their affected family member. They thus publically declare that they are opting out of the class; they do not, however, object to the adequacy of the remedy. Such expressions of personal preference, however sincere, do not bear on the fairness, adequacy, and reasonableness of the remedy. See, e.g., Gaskin v. Pennsylvania, 389 F. Supp. 2d 628, 644 (E.D. Pa. 2005) (declining to consider concerns raised by non-class members in approving settlement remedying ADA, Section 504 claims); see also Fed. R. Civ. P. 23(e)(5) (expressly permitting only “class members” to object to the proposed Settlement Agreement).
In contrast, a class member eloquently captured the significance of the Agreement to the class, stating that “I have been waiting to leave [Hamburg Center] for over a year now, and not a day goes by when I don’t express my desire to live in a group home.” Letter from Jemille Houston, ECF No. 113. Another class member wrote, “I am from White Haven Center and been in White Haven Center for ten years and it is time to leave . . . . I am happy that this settlement will help me move.” Letter from John Hoops, ECF No. 148. In addition, The Arc of Pennsylvania, the State’s largest advocacy organization for people with developmental disabilities, whose members include thousands of individuals with disabilities and their families – including many class members – supports the Agreement. See Letter, ECF No. 171; see also Letters, ECF Nos. 184, 185
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(statements of support from The Arc of Greater Pittsburgh/ACHIEVA). This Court should approve the proposed Agreement because it will provide class members with a long-awaited remedy for Defendants’ discrimination. The concerns of non-class members should not limit or delay this relief when those who oppose community placement may opt out of the class.
C. The Stage of Proceedings Weighs Heavily in Favor of Approval The stage of the proceedings weighs heavily in favor of approval here.
Courts consider the stage of proceedings a proxy for evaluating the extent of counsel’s “appreciation of the merits of the case prior to settlement.” In re AT&T, 455 F.3d at 167 (noting that the district court found that counsel had a “‘thorough and exhaustive’” appreciation of merits following discovery, motion practice, and two weeks of trial). The parties reached the proposed Settlement Agreement following two years of litigation, including extensive discovery, this Court’s entry of summary judgment finding Defendants liable for discrimination, and months of settlement negotiations. The parties have thus fully identified and evaluated the merits of the legal issues, and had the benefit of this Court’s ruling on the issue of liability before they reached an agreement.
12

Case 1:09-cv-01182-JEJ Document 223 Filed 08/02/11 Page 13 of 20
D. Plaintiffs Face Risks in Establishing the Remedy Through a Contested Proceeding Although this Court established Defendants’ liability, the structure, content,
and form of relief remain uncertain if Plaintiffs proceed to a contested remedy phase. As noted above, designing a remedy in the context of this case is far more complex than a simple calculation of damages, as it involves questions of policy and allocation of limited government resources. A negotiated remedy thus provides Plaintiffs with a significantly greater degree of control over the many details involved in creating a safe yet expeditious community integration plan. See Pet Food Prods., 629 F.3d at 351 (noting that the district court examined fourth and fifth Girsh factors together and found that uncertainty in establishing liability or damages weighs in favor of settlement approval).
E. Modification of the Class Remains a Possibility Uncertainty in maintaining class certification also weighs in favor of
settlement. A district court retains the authority to decertify or modify a class at any time if it proves unmanageable, or if it becomes apparent that members of a class have divergent interests. See In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 260 (3d Cir. 2009); In re Cendant Corp. Litig., 264 F.3d 201, 239 (3d Cir. 2001). Moreover, “proceeding to trial would always entail the risk, even if slight, of decertification.” Cendant Corp., 264 F.3d at 239. While the risk of
13

Case 1:09-cv-01182-JEJ Document 223 Filed 08/02/11 Page 14 of 20
decertification here appears slight, it nonetheless remains a possibility. This factor thus supports approval of the Settlement Agreement.
F. The Record Contains No Indication That Defendants Can Withstand a Greater Judgment This factor addresses whether Defendants could withstand the imposition of
a remedy that costs significantly more than the price of the proposed Settlement Agreement. See id. at 240. The parties negotiated the Settlement Agreement following development of a record that included many uncontested facts regarding the costs of providing services to individuals both in Defendants’ congregate care institutions and in community placements. See, e.g., Defs. Statement of Undisputed Facts (“SUF”) ¶¶ 10,15, 24-27, June 29, 2010, ECF No. 51-3. In particular, there was no dispute that “[a]ll available funding for both State ICF/[DD] care and community care is expended for services to persons with mental retardation.” Id. ¶ 25; see also Pl. SUF ¶ 25, July 12, 2010, ECF No. 65-1; Mem. & Order at 22, Jan. 27, 2011, ECF No. 88 (“We are not blind to the budgetary constraints that Pennsylvania faces, and we are certainly mindful that DPW has limited resources . . . .”). Thus, the parties’ discussions focused on how best to allocate the finite resources available to Defendants for providing services to individuals with developmental disabilities in a manner that vindicates the integration rights of those individuals. The parties painstakingly negotiated such a
14

Case 1:09-cv-01182-JEJ Document 223 Filed 08/02/11 Page 15 of 20
settlement over a period of more than two months following this Court’s order granting summary judgment.5 The record thus contains no indication that Defendants could withstand a greater judgment.
G. The Settlement Represents a Fair and Reasonable Agreement in Light of the Best Possible Recovery and All Attendant Risks of Litigation The final two Girsh factors “evaluate whether the settlement represents a
good value for a weak case or a poor value for a strong case.” Warfarin Sodium, 391 F.3d at 538. Plaintiffs’ case is strong, as demonstrated by this Court’s ruling granting summary judgment on liability to Plaintiffs. Yet as discussed above, Plaintiffs faced uncertainty about the scope of the remedy that the Court would order.
In light of the risks of continued litigation, the Settlement Agreement represents a fair and reasonable compromise between the parties that ultimately vindicates class members’ right to receive community-based services under the ADA and Olmstead. The Settlement Agreement increases community capacity for class members who choose to reside in community-based settings. In doing so, the Settlement Agreement offers relief to individuals who are unnecessarily institutionalized. Any compromises the proposed Settlement Agreement makes are
5 The parties also engaged in extensive negotiations prior to this Court’s grant of summary judgment.
15

Case 1:09-cv-01182-JEJ Document 223 Filed 08/02/11 Page 16 of 20
reasonable in light of the inevitable risks, expense, and delays associated with proceeding to a contested remedy phase.6 The Settlement Agreement thus strikes a reasonable balance between the strength of Plaintiffs’ claims and the benefits of a negotiated settlement.
H. The Additional Prudential Factors Weigh in Favor of Approval Finally, the relevant considerations the Third Circuit outlined in Prudential
also weigh in favor of approval. See 148 F.3d at 323. First, the substantive claims at issue are fully mature: this Court granted summary judgment resolving the issue of liability. The parties then negotiated the remedy over the course of more than two months in sessions mediated by a magistrate judge. The advanced stage of litigation here indicates that the Settlement Agreement merits this Court’s approval, as the parties have had ample opportunity to assess the merits of the claims and evaluate the relief warranted. See Parks v. Portnoff Law Assocs., 243 F. Supp. 2d 244, 253 (E.D. Pa. 2003). Additionally, the proposed Settlement Agreement accords class members the right to opt out of the settlement. Indeed, it defines the class to exclude individuals who independently or through their involved families or guardians oppose community placement, and provides a
6 As argued in this Statement of Support, the proposed Settlement Agreement accords fair, reasonable, and adequate relief to Plaintiffs and class members. The Settlement represents a compromise and does not, therefore, represent the full extent of relief available under title II of the ADA and Section 504.
16

Case 1:09-cv-01182-JEJ Document 223 Filed 08/02/11 Page 17 of 20
process through which individuals and their involved families or guardians have
ample opportunity to express any opposition. Settlement Agreement, Pt. II ¶2; Pt.
III ¶2, ECF No. 105-2. The relevant Prudential considerations therefore both
indicate that the proposed Settlement Agreement merits this Court’s approval.
IV. CONCLUSION
For the foregoing reasons, this Court should grant final approval of the
Settlement Agreement.
Respectfully submitted,
THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General Civil Rights Division
ALISON BARKOFF Special Legal Counsel for Olmstead Enforcement
JONATHAN M. SMITH Chief Special Litigation Section
MARY R. BOHAN Deputy Chief Special Litigation Section
s/ Samantha K. Trepel 17

Case 1:09-cv-01182-JEJ Document 223 Filed 08/02/11 Page 18 of 20
SAMANTHA K. TREPEL DC992377 Trial Attorney Special Litigation Section Civil Rights Division United States Department of Justice 950 Pennsylvania Avenue, N.W. Washington, DC 20530 Tel: (202) 514-6255 Fax: (202) 514-4883 samantha.trepel@usdoj.gov Attorneys for the United States
18

Case 1:09-cv-01182-JEJ Document 223 Filed 08/02/11 Page 19 of 20
CERTIFICATE OF SERVICE I certify that the foregoing Statement of Support by the United States was served through the electronic filing service on August 2, 2011, to the following individuals:
Robert W. Meek Mark J. Murphy Robin Resnick Disability Rights Network of PA 1315 Walnut Street, Suite 500 Philadelphia, PA 19107-4705
Stephen F. Gold 1709 Benjamin Franklin Parkway, 2nd Fl. Philadelphia, PA 19103
Counsel for Plaintiffs and Class
Doris M. Leisch Deputy Chief Counsel Office of General Counsel Department of Public Welfare 801 Market Street, Suite 6092 Philadelphia, PA 19107
Counsel for Defendants
John E. Riley William J. Murray Vaira & Riley, P.C. 1600 Market Street, Suite 2650 Philadelphia, PA 19103
Michael Rato Owen H. Smith Benjamin J. Hoffart Sarah M. Goldstein
19

Case 1:09-cv-01182-JEJ Document 223 Filed 08/02/11 Page 20 of 20

Sidley Austin LLP 787 Seventh Avenue New York, NY 10019

s/ Samantha K. Trepel SAMANTHA K. TREPEL Attorney for the United States

20

 
 Case 1:09-cv-01182-JEJ Document 273 Filed 08/16/11 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FRANKLIN BENJAMIN, et. at.,

1:09-cv-1182

Plaintiffs

v.

DEPARTMENT OF PUBLIC, WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA and GARY ALEXANDER, in his official capacity as Secretary of Public Welfare of the
Commonwealth of Pennsylvania

Hon. John E. Jones III

Defendants.

ORDER

August 16,2011

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

A fairness hearing related to the Proposed Settlement Agreement in this

action is scheduled for Monday, August 22, 2011. In addition to several

objections lodged on the record, there have been two motions to intervene (Docs.

179,253) filed by Carl A. Solano, objecting on behalf of his sister Diane Solano,

and the previously-named "Springstead Intervenors". In addition to the Motions

to Intervene, the above-mentioned parties likewise filed a joint Motion for

1

Case 1:09-cv-01182-JEJ Document 273 Filed 08/16/11 Page 2 of 3
Hearing, (Doc. 269) to determine the objectors' standing to appear and present argument at the fairness hearing.
We have thoroughly considered the most effective procedure for the conduct of the August 22,2011 hearing and the Objectors' requests to actively participate, do not see cause to honor the Objectors' request to hold a hearing on that matter. Because it is the parties' burden to demonstrate at the hearing that the Proposed Settlement is fair, adequate, and reasonable, we shall take testimony and fact evidence presented only by the parties. We shall fully consider the objections lodged on the record, and will further allow the "Springstead Intervenors" and Mr. Solano, through counsel, to question the respective witnesses. Because the interests of these Objectors are sufficiently aligned, and representative of all Objectors, we direct them to designate one counsel to participate in the hearing.
We are, in part, granting the relief the Objectors seek in their respective Motions to Intervene by allowing them to reasonably participate in the August 22, 2011 hearing. Further, we incorporate by reference our March 10, 2010 Order denying the Springstead Intervenors' original Motion to Intervene, which was affirmed by the Third Circuit, and find that full intervention is unwarranted and improper. We will accordingly deny the outstanding Motions to Intervene (Docs. 179,253).
2

Case 1:09-cv-01182-JEJ Document 273 Filed 08/16/11 Page 3 of 3
NOW, THEREFORE, IT IS HEREBY ORDERED: 1. The Springstead Intervenors and Mr. Solano shall identify, via letter on the docket, the attorney designated to appear in the August 22, 2011 hearing on or before Thursday, August 18, 2011; 2. Carl A. Solano's Motion to Intervene (Doc. 179) and the Springstead Intervenors' Motion to Intervene (Doc. 253) are respectively DENIED; 3. The Joint Motion for a Hearing (Doc. 269) is DENIED.
John
3

 
 Case 1:09-cv-01182-JEJ Document 281 Filed 09/02/11 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FRANKLIN BENJAMIN, et. al.,

:

:

:

Plaintiffs

:

:

v.

:

:

DEPARTMENT OF PUBLIC ,

:

WELFARE OF THE

:

COMMONWEALTH OF

:

PENNSYLVANIA and GARY

:

ALEXANDER, in his official capacity :

as Secretary of Public Welfare of the :

Commonwealth of Pennsylvania

:

:

Defendants.

:

1:09-cv-1182 Hon. John E. Jones III

ORDER

September 2, 2011

In accordance with the Memorandum entered on this date, it is hereby ORDERED as follows:

1. The Court FINDS that the Settlement Agreement is fair, reasonable, and adequate;

2. Plaintiffs’ Unopposed Motion for Final Approval of the Proposed Class Action Settlement Agreement (Doc. 260) is GRANTED;

3. The Settlement Agreement is APPROVED;

4. Plaintiffs’ Unopposed Motion for Attorneys’ Fees, Litigation Expenses, and Costs (Doc. 262) is GRANTED;
5. Defendants’ will pay Plaintiffs’ counsel the sum of $432,500 for
1

Case 1:09-cv-01182-JEJ Document 281 Filed 09/02/11 Page 2 of 2
attorneys’ fees, litigation expenses, and costs incurred; 6. This action is hereby DISMISSED and the Clerk is directed to
CLOSE this case; and 7. The Court expressly retains jurisdiction as set forth in the Settlement
Agreement, in order to enter any further orders that may be necessary or appropriate in administering or implementing the terms and provisions of the settlement agreement.
/s/ John E. Jones III John E. Jones III United States District Judge
2

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FRANKLIN BENJAMIN, et al.,

:

:

Plaintiffs

:

:

and

:

:

CRAIG SPRINGSTEAD, et al.,

:

:

Intervenors

:

:

v.

:

:

DEPARTMENT OF PUBLIC

:

WELFARE OF THE

:

COMMONWEALTH OF

:

PENNSYLVANIA and BEVERLY :

MACKERETH, in her official capacity :

as Secretary of Public Welfare of the :

Commonwealth of Pennsylvania,

:

:

Defendants.

:

1:09-cv-1182 Hon. John E. Jones III

ORDER

September 25, 2014

In accordance with the Memorandum filed on today’s date, IT IS HEREBY

ORDERED AS FOLLOWS:

1. The Court APPROVES the proposed Settlement Class and FINDS

that the Settlement Agreement is fair, reasonable, and adequate;

2. Plaintiffs’ Unopposed Motion for Final Approval of the Proposed

Revised Class Action Settlement Agreement (Doc. 345) is GRANTED; 3. The Settlement Agreement is APPROVED; 4. Plaintiffs’ Unopposed Motion for Attorneys’ Fees, Litigation Expenses, and Costs (Doc. 348) is GRANTED; 5. Defendants will pay Plaintiffs’ counsel the sum of $532,500.00 for attorneys’ fees, litigation expenses, and costs incurred; 6. Intervenors’ Joint Unopposed Motion for Attorneys’ Fees, Litigation Expenses, and Costs (Doc. 350) is GRANTED; 7. Defendants will pay Intervenors’ counsel the sum of $399,500.00 for attorneys’ fees, litigation expenses, and costs incurred, in accordance with the Motion; 8. This action is hereby DISMISSED and the Clerk is directed to CLOSE this case; and 9. The Court expressly retains jurisdiction as set forth in the Settlement Agreement, in order to enter any further orders that may be necessary or appropriate in administering or implementing the terms and provisions of the settlement agreement.
2

s/ John E. Jones III John E. Jones III United States District Judge
3

 
 ,..
Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 1 of 45
EXHIBIT 2

'' ·· ::-·· '' ';

I ...

Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 2 of 45

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FRANKLIN BENJAMIN, by and through

his next friend , Andree Yock; RICHARD :

GROGG and FRANK EDGETT, by and

through their next friend, Joyce

C. A. No. 1:09-cv-1182-JEJ

McCarthy; ANTHONY BEARD,

by and through his next friend ,

Class Action

Nicole Turman , on behalf of themselves :

and all others similarly situated,

Complaint Filed June 22, 2009

Plaintiffs

and
CRAIG SPRINGSTEAD, by and through: his father and guardian , Bertin Springstead; MARIA MEO, by and through her mother and guardian , Grace Meo; DANIEL BASTEK, by and through his father and guardian, John Bastek; MICHAEL STORM, through his guardian, Polly Spare; BETH ANN LAMBO, by and through her father and guardian, Joseph Lambe; RICHARD KOHLER, by and through his sister and guardian Sara Fuller; MARIA KASHATUS, by and through her father and guardian , Thomas Kashatus; WILSON SHEPPARD, by and through his brother and next friend, Alfred Sheppard; and DIANE SOLANO, by and : th rough her brother and guardian, Carl Solano,

Intervenors

v.
1

.. •i

' . I·.

.. '·I

Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 3 of 45

DEPARTMENT OF PUBLIC WELFARE : OF THE COMMONWEALTH OF PENNSYLVANIA and BEVERLY MACKERETH , in her official capacity as: Acting Secretary of Public Welfare of the Commonwealth of Pennsylvania,
Defendants
REVISED SETTLEMENT AGREEMENT I. Introduction
WHEREAS on June 22, 2009, Plaintiffs filed this class action lawsuit, alleging, inter alia, that Defendants violated Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act by unnecessarily segregating class members in state intermediate care facilities for individuals with intellectual disabilities (ICFs/10);
WHEREAS the District Court by Order dated September 2, 2009 certified this case to proceed as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2) on behalf of all individuals who (1 ) currently or in the future will reside in one of Pennsylvania1S state ICFs/10 ; (2) could reside in the community with appropriate supports and services; and (3) do not or would not oppose community placement;
WHEREAS the District Court by Memorandum and Order dated January 27, 2011 , ruled that Defendants violated and were liable under
2

Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 4 of 45
Title II of the ADA and Section 504 of the RA by failing to offer community
services to Plaintiffs and class members; WHEREAS Plaintiffs and Defendants entered into a proposed
Settlement Agreement regarding a remedy that they submitted to the District Court for approval;
WHEREAS nine state ICF/10 residents , by their guardians and next friends, objected to the proposed settlement agreement and moved to intervene for the limited purpose of objecting to the proposed settlement, contending that the proposed settlement was not fair and reasonable and that the class should not have been certified ;
WHEREAS the District Court denied the motions to intervene, considered but overruled all objections to the proposed settlement, and approved the proposed settlement on September 2, 2011 ;
WHEREAS the proposed intervenors appealed the District Court's rulings that denied their intervention motions and approved the Settlement Agreement;
WHEREAS the United States Court of Appeals for the Third Circuit on December 12, 2012 , vacated the District Court's approval of the Settlement Agreement and directed the District Court to allow -intervention
3

' ' ' '' '' • I

·, i

! ;

Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 5 of 45

by the nine state ICF/ID residents to challenge the District Courfs certification of a class and its approval of the Settlement Agreement;
WHEREAS the District Court granted the intervention motions of the nine state ICF/ID residents ("Intervenors") by Order entered on December 13,2012; and
WHEREAS Plaintiffs, Defendants, and Intervenors desire to reach a consensus on an appropriate remedy to resolve this litigation amicably without conceding another Party's position, avoid the risks and expense of further litigation, and provide for relief based on the freedom of choice of al l ICF/ID residents;
NOW, THEREFORE, Plaintiffs, Defendants, and Intervenors enter into this Revised Settlement Agreement. II. Definitions
1. As used in this Agreement, the following terms have the following meanings:
a. "AEs" means the Administrative Entities that contract with the Department of Public Welfare to admin-ister the community intellectual disabilities system in specific geographic areas.
b. "Agreement" means thi-s Revised Settlement Agreement.

4

. .~

. l

. .. '!

Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 6 of 45

c. "Class members" means all individuals who have resided

or will reside in a state ICF/10 at any time from the effective date of this

Agreement until the termination of this Agreement under Paragraph 40.

d. ·,

"Choice" means the decision to remain in a state ICF/10

or to reside in the community.

e. "Community placement" means relocation from a state

ICF/10 to the community and provision of those Community residential

services and non-residential services and supports that are appropriate to

meet the needs of the individual.

f.

"Community residential services" means services

provided to enable an individual to live independently in that person's own

home or with family while receiving supportive services; to live in a family

living ("life-sharing") home licensed under 55 Pa. Code Ch. 6500; or to live

in a group home licensed under 55 Pa. Code Ch. 6400.

g.

"CPP" means the Community Placement Plan that is

developed for each resident of a state ICF/10 pursuant to the individual

support planning process and that establishes what services and supports

the resident would need if he or she were to live in the community .

5

. :.:. ·.. "i

i ;

. ·f

Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 7 of 45

h. "DPW" means the Department of Public Welfare of the

Commonwealth of Pennsylvania, its officials, employees, agents, and

successors.

t.

"Effective Date" means the date that the Agreement is

signed by all parties, or, if they do not all sign on the same date, then the

date on which the last of the parties signs it.

J.

"Facility Director" means the administrative head of a

state ICF/ID with the powers and duties specified in Section 417 of the

Mental Health and Intellectual Disability Act of 1966, 50 P.S. § 4417,

including any interim or acting Facility Director.

k. "Guardian" means an individual appointed by a

Pennsylvan ia court pursuant to 20 Pa. Cons. Stat. Chap. 55 to serve as the

guardian of the person for a resident of a state ICF/ID, and includes any

court-appointed successor guardian.

I.

"Interdisciplinary Team" means the group of State Center

professionals and staff as well as other professionals or staff who develop

the state ICF/ID resident's ISP.

m. "ISP" means the Individual Support Plan created for each

class member (through a process in which the class member, the class

member's guardians or substitute decision-makers, family members, the

6

-: ;·.

··· '.. ' ' ' ' ' ' '''.' '

Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 8 of 45

AE, the Supports Coordinator, the Facility Advocate, and members of the class member's Interdisciplinary Team participate) that assesses, identifies, and coordinates the needed supports and services for the class member.
n. "ODP" means the DPW Office of Developmental Programs, its officials , employees, agents, and successors.
o. "Parties" means Defendants and Plaintiffs and Intervenors identified in the caption to this Agreement.
p. ''Planning List" means the list of those class members for whom DPW is to provide community placements, comprised of class members in any of the following three groups: (1 ) those who had the capacity to make an informed choice and chose community placement in Fiscal Year 2011-2012 or Fiscal Year 2012-2013, (2 ) those for whom a choice of community placement was made by their guardians or substitute decision-makers in Fiscal Year 2011 -2012 or Fiscal Year 2012-2013, and (3) those who choose or on whose behalf community placement is chosen based on the procedures in this Agreement.
q. "Settlement Class" means, and for purposes of Federal Rule of Civil Procedure 23 is defined as , all individuals who have resided or will reside in a state ICF/10 at any ti.me from the Effective Date until the termination of this Agreement under Paragraph 40.
7

Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 9 of 45

r. "State ICFs/10" means the Intermediate Care Facilities

for Individuals with Intellectual Disabilities that are operated by the

Commonwealth of Pennsylvania - Ebensburg Center, Hamburg Center,

Polk Center, Selinsgrove Center, and White Haven Center.

s. "Substitute decision-maker" means any person

designated on the Personal Data Profile Sheet of a state ICF/10 resident to make decisions on behalf of that resident, which includes anyone who is

currently designated in any other record of the state ICF/10 as the person authorized to make decisions on behalf of the resident, whether identified

using the term "substitute decision maker" or any other term.

t.

"Supports Coordinator" means the individual responsible

for locating , coordinating , and monitoring community services and supports

for a class member.

Ill. Choice to Live in a State ICFIID or in the Community

2. No Party will seek the removal of a class member from a state

ICF/10 to a community placement or will seek to restrict the ability of any class member to move to a community placement other than in accordance with this Agreement.

3. Any class member who has the capacity to make an informed

choice and expresses a preference for community placement will move to

8

. ..... . . . l

'j I

I ;

• !

1 !

Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 10 of 45

the community unless the class member's guardian opposes community placement.
4. If the guardian or substitute decision-maker of any class member expresses a preference for community placement for that class member, then the class member will move to the community unless the class member has the capacity to make an informed choice and wants to continue to live at the state ICF/10.
5. Consistent with its authority under state law, DPW will take all precautions and steps determined by the class member's treatment professionals to be necessary to insure the health and safety of the class member, up to and including involuntary commitment.
6. Every class member who has the capacity to do so may make a choice at any time. A class member's guardian or substitute decisionmaker may make a choice on behalf of that class member at any t ime, except that a substitute decision-maker may not override the choice of a class member who has the capacity to make a choice. Once a choice has been made, the class member, or the class member's guardian or substitute decision-maker, may change that choice at any time.
7. Within ninety (90) days after the Effective Date, DPW wi ll inform all class members, guardians, and substitute decision-makers of their
9

I.
Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 11 of 45
ability to make a choice as specified in this Agreement and will advise them of the procedure by which they can make their choice and can change any choice after they make it. If a class member is admitted to a state ICF/10 after the Effective Date, DPW will provide this information to that class member and to the class member's guardian or substitute decision -maker within ninety (90) days after the Effective Date or thirty (30) days after the class member's admission, whichever is later.
8. Thereafter, at their annual ISP and CPP meetings, class members, guardians, and substitute decision-makers will be informed of their ability to make a choice and the procedure by which they can make their choice and can change any choice after they make it. If a class member, guardian, or substitute decision-maker informs DPW th at he or she no longer wishes to receive this information at those annual meetings, DPW will no longer provide this information at those meetings.
9. DPW will make available the names of organizations or entities that can provide resources to assist class members, guardians, and substitute decision-makers to make their choice, wi ll inform aHclass members, guardians, and substitute decision-makers of the availability of the resource information, and will provide the information to them upon request: A list of those organizations, which may be amended from time to
10

Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 12 of 45
time by agreement of the parties, is appended to this Agreement as Exhibit "A. "
10. If a class member's treatment professionals determine that the class member does not have the capacity to make an informed choice, and if that class member does not have a guardian or substitute decision-maker (either because the guardian or substitute decision-maker has died without appointment of a successor, or for any other reason) , the Facility Director of the state ICF/10 in which the class member resides will , acting within the Director's authority under state law at 50 P.S. § 4417 and 20 Pa. Cons. Stat. § 5521 , decide whether the class member should continue to live at the state ICF/10 or move to a community placement.
a. Before making the decision, the Facility Director will meet with and, if appropriate in light of the class member's capacity, interview the class member regarding the class member's preferences and give appropriate weight to those preferences.
b. Before making the decision , the Facility Director will review and consider all relevant records of the class member and will notify and consult with members of the class member's Interdisciplinary Team , staff members who know the class member, any family members of the
1 1

Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 13 of 45
class member, and other persons who ask to speak with the Facility Director.
c. If a class member had a guardian or substitute decisionmaker who died, the Facility Director will honor the stated preference of the former guardian or substitute decisi.on-maker unless sign ificantly changed circumstances warrant a departure from that stated preference. "Significantly changed circumstances" include the closure of th~ state ICF/10 in which the class member resides and any other circumstances set forth in writing by the guardian or substitute decision-maker after discussion of such potential circumstances at the class member' s ISP meeting.
d. The Facility Director will make an individ ualized determination for each class member based exclusively on what is in the best interest of the specific class member, and not any general policy considerations, budgetary or financial considerations, or numerical quotas, taking into account the following: (i) whether community placement is appropriate for the class member; (ii) any preference regarding community living that was stated by a guardian or substitute decision-maker who has died; (iii) any evidence regarding the preference of the class member; and (iv) the services and supports (including , but not limited to, psychiatric, behavioral health , medical , dental, and nursing supports) the class member
12

Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 14 of 45
is currently receiving in the state lCF/10, the services and supports the class member would need to move to and live in the community safely and whether those services and supports are available or are able to be developed in the community;
e. The Facility Director will make the determination for each
current class member as specified in this Paragraph within 120 days after
the Effective Date, and for any class member admitted to a state ICF/lD
after the Effective Date, within 60 days after that class member's
admission. The Facility Director will set forth his or her decision in writing, along with an explanation of the reasons for the decision. Except as specified in subparagraph f below, the Facility Director will not change the decision unless he_ or she learns that the initial decision was based on erroneous information or receives information that had not previously been considered. Any change in the decision will be set forth in writing , along with an explanation of the reasons for the change and will be reviewed by the review committee described in subparagraph f below.
f. Within 30 days of the date the Facility Director makes the
decision or changes an initial decision, the decision will be reviewed by a committee comprised of the Deputy Secretary for Developmental Programs, the Executive Assistant for ODP, the Director of the Bureau of
13

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Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 15 of 45

Supports to People with Intellectual Disabilities, the ODP Medical Director, and the ODP Clinical Director ("review committee"), to confirm that the decision conforms to the protocol specified in this Paragraph. If the review committee concludes that the decision of the Facility Directo r does not conform to the specified protocol, the Facility Director will be instructed to revise the decision so that it does so conform.
g. DPW will provide Plaintiffs' counsel with a report of the decisions and explanations of the Facility Director and review committee two weeks after the review committee makes its decision. DPW will provide Intervenors' counsel with a copy of the same report provided to Plaintiffs' counsel but redacted to shield the identities of the class members. Counsel for Plaintiffs and counsel for Intervenors will maintain the decisions and explanations in confidence and will not share them with their clients or any third parties. In the event that the decisions or explanations are submitted to the Court, they will be filed under seal. In the event that counsel for Plaintiffs or counsel for Intervenors contends that a decision of the Facility Director or of the review comm ittee does not conform to the protocol specified in this Paragraph, the sole remedy , after the parties meet and confer, will be for the Facility Director and the review

14

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Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 16 of 45
committee to re-conduct the review in accordance with the specified protocol. IV. Protections for Class Members Who Choose to Remain
in a State ICFIID
11. DPW will continue to maintain the level of care currently provided to class members in state ICFs/10 and wi,ll assure that the state ICFs/10 continue to meet the criteria needed to satisfy all federal and state certification and licensure requirements; to protect the health, welfare, and safety of class members; and to provide class members with active treatment.
12. No provision of this Agreement shall be construed to waive any potential claims that a class member, or a guardian or substitute decisionmaker acting on behalf of the class member, may assert (a) to challenge or object to a decision to close or attempt to close that state ICF/l D, or (b) to transfer from a state ICF/10 that has closed or is scheduled to close to a state ICF/10 that has not closed. No provision of this Ag reement shall be construed to create in or confer on class members a right to challenge or object to the closure of a state ICF/10 or to transfer to a state ICF/10 that has not closed. No Party waives its position on these issues.
13. DPW will not use funds appropriated for state ICFs/lD to fund community services and supports. DPW will not give fund ing of state
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ICFs/ID any lower priority in its budget requests than funding for community

placements.

V. Development and Implementation of a Viable Integration Plan

.j

14. DPW will place any class member who chooses or on whose

I

!

behalf a choice is made for a community placement pursuan-t to this

Agreement on a Planning List for development of an individualized plan to

enable that class member to move to the community. The Planning List will

not include any class member who has not chosen or on whose behalf a

choice was not made for a community placement.

15. DPW will implement a viable integration plan for those class

members who are on the Planning List. To implement the integration plan ,

DPW will:

a. request as one of its top budget priorities funding to develop

community placements for fifty (50) class members on the Planning List, or

the number of class members on the Planning List if fewer than 50, in each

of the Fiscal Years 2013-2014 through 2017-2018 ; and

b. provide community placements to class members on the

Planning List to enable class members to move to and stay in the

community according to the following schedule: eighty (80) class

members, ·or the number of class members on the Planning List if fewer

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than eighty (80), by June 30, 2015; and fifty (50) class members on the Planning List, or the number of class members on the Planning List if fewer than fifty (50), in each of the Fiscal Years 2015-2016 through 2017-2018.
16. No later than sixty (60) days after the Effective Date, DPW will: a. Submit a grant proposal to the federal Money Follows the
Person program to obtain funding for Supports Coordinators to assist in the community placement process for class members on the Planning List and for start-up costs needed to develop new Community residential services for class members on the Planning List.
b. Identify each Regional DPW staff person who will serve as the single point of contact in the region for community service providers regarding class members seeking community placement; and
c. Identify specialists who will be available to evaluate class members on the Planning List who have challenging needs such as mental health , behavioral health, or medical issues.
17. No later than thirty (30) days after the Effective Date for each class member who is on the Planning List for Fiscal Years 20~ 1-2012 and 2012-2013 and thereafter within thirty (30) days after a class member is placed on the Planning List, DPW will develop a redacted one-page summary about each class member that describes the class member's
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need for community residential services and associated non-residential services and supports and post the summary about each such class member on a website that is accessible to providers and AEs throughout the Commonwealth. The website will provide information on how to contact DPW to obtain additional information about any of the class members on the Planning List. The one-page summaries will also be used by state ICF/10 staff, ODP Regional staff, ·and the AEs to determine whether any class members on the Planning List can safely and adequately be served in a vacancy in an existing community residential program or in any new vacancy in such programs as it arises and to determine whether any class member on the Planning List appears to be sufficiently compatible with any other class member on the Planning List or with an individual in the community to be that person's roommate in the community. Thereafter,
a. DPW will instruct the AEs to contact a provider that expresses interest in providing community services and supports to a class member on the Planning List within ten (1 0) business days after the provider expresses interest, to offer any additional information needed, answer any questions, and assist the provider in deciding whether to provide community services to the class member.
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b. If within forty-five (45) days of posting a class member's information on the website, no provider expresses interest in providing community services and supports to that class member, the OPW regional staff person will contact potential providers to discuss what th ey would need in order for them to be willing and able to provide commun ity services and supports to the class member.
c. If within ninety (90) days of posting a class member's information on the website, no provider has been selected to provide community services and supports to that class member, the DPW regional staff person will again contact potential providers to discuss what the providers would need in order to be willing and able to provide community services and supports to the class member.
18. Within thirty (30) days after the Effective Date for those class members on the Planning List for Fiscal Years 2011-2012 and 2012-2013 and thereafter within thirty (30) days after a class member is placed on the Planning List, DPW will review the case record of each class member to determine whether the class member should be evaluated by one or more specialists with expertise relevant to the challenging needs of the class member. Within sixty (60) days thereafter, the specialist(s) will evaluate those class members in consultati-on with the class members'
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Interdisciplinary Teams and will identify with specificity those services and supports the class member needs to live in the community safely. The special ists will also be avatlable to consult with providers interested in or selected to provide community services and supports to the class member. The one-page summary for each such class member will be supplemented as needed to reflect the outcome of the evaluation.
19. To support the transition of class members on the Planning List to the community, DPW will:
a. Identify a person in each Regional Office of ODP who will be responsible to assure that the class member continues to have access to the services and supports he or she needs to live successfully in the community and to help to solve any problems that arise;
b. Request that the provider of community residential services for the class member contact the class member's Supports Coord inator, AE, and the Regional Office of ODP if it encounters any difficulty in serving the class member in the community;
c. Require that community residential services providers comply with 55 Pa. Code§ 51 .31 (c) before terminating services to a class member;
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d. Work with the class member's providers, the Supports Coordinator, and the AE to identify, if necessary, alternative tempo rary or permanent service providers to provide any services that the class member needs.
20. An ISP, including a CPP, will be developed for each cl ass member on the Planning List prior to his or her discharge that specifi es the projected date by which the class member will move to the community and describes the services and supports needed in order for the class member to live successfully in the community. The ISP and CPP will be developed by the class member's Interdisciplinary Team, the class member, the class member's guardians or substitute decision makers, family members, the AE , the Supports Coordinator, and the Facility Advocate.
a. The ISP will identify each type of servi ce, including the residential placement; day or vocational programs; health care or nursing services; community psychiatric or behavioral health servi ces; and assistive technology the class member will receive in the community, the amount of the service, and the provider who will provide the service.
b. The ISP will identify any needs that a class member has and any needs that a class member may have for physical accessibility or
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Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 23 of 45
accommodations for sensory or other disabilities and how those needs will be addressed in the community.
c. The Team will consider any anticipated difficulties in transitioning the class member from the state ICF/110 to a community placement and , if needed, the lSP and CPP will include a transition plan .
d. If necessary for a particular class member, the Team will develop a Crisis Management Plan as part of the ISP , to specify the steps to be taken in the event of a behavioral or psych iatric crisis that places the class member at risk of voluntary or involuntary commitment to a psychiatric hospital, incarceration , or return to a state ICF/10. The Crisis Management Plan will detail information regarding plans or procedures that have been successful or unsuccessful for the class member in the past, including return to a state ICF/10 after living in the community, and will provide instructions for referring the class member for a Positive Practices Resource Team evaluation. The Crisis Management Plan will also identify the concerns that the class member or guardian or other substitute decision-maker has about particular psychiatric or psychological treatments or treatment facilities. The Crisis Management Plan will include instructions that when a class member is in crisis; the class member's team will meet to review, and utilize as appropriate, the information detailed in the Crisis
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Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 24 of 45
Management Plan in order to develop a plan to provide supports for the class member.
21. If any class member voluntarily wishes to return to a state ICF/10, or if any class member's guardian or substitute decision-maker wishes for the class member to return to a state ICF/10:
a. The class member may return to the state ICF/ID without the need for a court order or other process if the class member or his or her guardian or other substitute decision-maker expresses a desire to do so within one year after the class member has moved to the community, which time period may be extended in increments of six (6) months in light of the class member's individualized circumstances with the agreement of the class member's ISP team.
b. Before being permitted to return to the state ICF/10 under this Paragraph, the class member, guardian, or substitute decision-maker will consult with the class member's Supports Coordinator, AE, and the Regional Office of ODP to attempt to resolve the dissatisfaction or other concerns with the community residential services provider or with the community services provided to the class member that motivate the desire to return . If the Supports Coordinator, AE, and the Regional Office of ODP are unable to resolve the concerns to the satisfaction of the class member,
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guardian, or substitute decision-maker, the Central Office of ODP will be consulted for additional assistance. ODP will use the same resources (including, as appropriate, the Positive Practices Resource Team) that apply to involuntary commitments to attempt to resolve the stated concerns and prevent the return.
c. If the consultation process and procedures set forth in subparagraph (b) have not remedied the reasons for the request to return within sixty (60) days of the date the request was made, the class member will be permitted to return to the state ICF/10 as promptly as possible but in no event more than ten (1 0) days after the end of the 60-day consultation period, or any extensions thereof. The 60-day period may be extended in 30-day increments if the class member, guardian or other substitute decision-maker, Supports Coordinator, AE, and ODP all agree to the extension.
d. Other than as provided in this Paragraph , nothing in this Agreement shall be construed to address whether or not class members may return to a state ICF/10 without a court order or other legal process and whether or not DPW is required to admit a class member to a state ICF/10 without a court order. No Party waives its position on these issues.
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VI. Status Reports arid Monitoring 22. Beginning fifteen (15) days after the first full quarter following
the Effective Date and every three (3) months thereafter, DPW will provide counsel for Plaintiffs with a report that includes the following information for the previous quarter:
a. an updated list identifyrng all class members on the Planning List, the fiscal year in which each person on the Planning List is scheduled to move to the community, and the date that each person on the Planning List moved to the commun ity;
b. the identities of any class members removed from or added to the Planning List;
c. for any class member as to whom no provider has expressed an interest in providing Community Residential Services within five months of the start of planning for a community placement, a description of the steps DPW has taken to identify interested providers and of any barrie rs to placement of the class member;
d. the identity of each class member who , after community placement, was admitted or committed to a psychiatric hospital or a state ICF/10, or returned to a state ICF/10 after moving to the community, or was arrested or jailed, and for each such class member, the date of, and a
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Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 27 of 45

.·description of the circumstances that led to, the admission, commitment, return , arrest, or incarceration; the class member' s current status; and what steps, if any, OPW plans to take to address the issue and prevent recurrence;
e. the number and percentage of class members who were the subjects of founded incidents of abuse or neglect (as defined in Exhibit "B" hereto) in the state ICFs/10 and in the comm unity, categorized by provider;
f. the number and percentage of class members who died for reasons other than natural causes in the state ICFs/10 and after they moved to the community;
g. the identity of any class member whose community residential services provider issued a notice of termination of services or otherwise terminated the class member's services and a statement of the reasons for such termination and what actions were or are being taken to resolve them.
23. At the same time that it provides Plaintiffs ' counsel with the report specified in Paragraph 22, OPW will provide Intervenors' counsel with a copy of the report that includes the same information regard ing any

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Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 28 of 45
Intervenor who is on the Planning List and is redacted to shield the identities of other class members.
24. Within thirty (30) days of the Effective Date, Plaintiffs, DPW, and Intervenors will identify a neutral third party with whom OPW will promptly contract to serve as a consultant, if necessary, to make recommendations as specified in Paragraph 25 for implementing the terms of this Agreement. If the Parties are unable to agree on the identity of the third party, they will request that a United States Magistrate Judge assist them in identifying an acceptable third party.
25. OPW will consult with the neutral third-party if in any fiscal year the number of class members that moved to community placements, including the number of class members who moved to community placements after having returned to a state ICF/1 0- minus the number of class members who return, either voluntarily or involuntarily, to a state ICF/10 but remain on the Planning List after returning to the State ICF/10is less than 90% of the number of class members to be provided community placement under subparagraph 15.b; or if in any consecutive 6month period, eight (8) or more class members are voluntarily or involuntarily committed to a psychiatric hospital, arrested, or jailed after moving to the community.
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Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 29 of 45

a . DPW will initiate consultation with the th ird party within fourteen (1 4 ) days of the date on t he status report that reflects one of the conditions specified in this Paragraph.
b. The third party w il l conduct an assessment and issue a report with his or her recommendations within sixty (60) days of the request for consultation, and DPW will meet with the third party to discuss whether the recommendations are workable and reasonable.
c. Within thirty (30) days of receiving the third party's report, DPW will meet with counsel for the Parties to review the third partls recommendations, its response to the recommendations, and its reasons, if any, for not accepting those recommendations it believes are unworkable or unreasonable. VII. Certification of Settlement Class and Approval of Agreement 26. Solely for purposes of this Agreement, the parties agree that certification of the following Settlement Class is appropriate under Federal Rules of Civil Procedure Ru le 23(a) and (b)(2 ): All individuals who have resided or will reside in a state ICF/10 at any time from the Effective Date until the termination of this Agreement under Paragraph 40. 27. Plaintiffs w ill petition the District Court for preliminary approval of the Agreement and for perm ission to provide class notice and to
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schedule a fairness hearing. If the District Court grants preliminary approval, DPW will distribute the class notice to class members and their guardians or substitute decision-makers. Plaintiffs will petition for final approval of the Agreement, which Defendants and the Intervenors will not oppose.
28. At the same time that they petition for preliminary approval of this Agreement, Plaintiffs will file a motion to certify the Settlement Class and to request that the District Courtvacate its class certification order dated September 2, 2009, and enter a new order certifying the Settlement Class solely for purposes of this settlement and providing that vacatur of the September 2, 2009 order and certification of the Settlement Class are contingent on final approval of this Agreement by the District Court.
29 . The Parties' agreement to the terms of this settlement is contingent on the District Court's certification of the Settlement Class, and this Agreement will not be effective if the District Court does not certify the Settlement Class or if certification of the Settlement Class is overturned on appeal.
30. The Parties' agreement to certification of the Settlement Class is contingent on the District Court's approval of this Agreement. If the District Court does not approve this Agreement, or if final approval ts over-
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turned on appeal, then Plaintiffs will withdraw the motion for certification of the Settlement Class or, if the motion has already been granted , then the Parties will take steps to decertify the Settlement Class. In that event, the case will be reinstated in the same procedural posture that it had at the time the Parties executed this Agreement, and Intervenors may seek decertification of the class certified by the District Court on September 9, 2009, as authorized by the December 12, 2012 , decision of the Court of Appeals.
31. The Agreement will be binding on Plaintiffs , class members, Intervenors, and Defendants, as well as their successors, on ly if the Agreement is approved by the District Court, except that Defendants agree to implement the terms of the Agreement beginning on the Effective Date, subject to the Court's ruling on approval of the Agreement. If the Court does not approve the Agreement or if final approval is overtu rned on appeal, Defendants' agreement under this Paragraph will end and the litigation will be reinstated in the same procedural posture as it had at the time the Parties executed the Agreement.
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Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 32 of 45

VIII. Enforcement, Jurisdiction, and Attorneys' Fees 32. If the District Court approves the Settlement Agreement, it will
retain jurisdiction over the lawsuit for purposes of interpretation and enforcement of the Agreement.
33. Except as specified in Paragraph 36, any of the Parties may file a motion for specific performance to enforce alleged noncompliance with the Agreement, subject to the requirements of Paragraphs 34 and 35. Defendants reserve the right to assert any available defense to a claim for specific performance, including lack of funding that is not attributable to Defendants' actions, and Plaintiffs and Intervenors reserve the right to contest the validity of any asserted defense.
34. A Party may not file a motion for specific performance for failure to comply with subparagraph 15.b based on the number of class members who have moved to and stayed in the community until after the third party has issued its report and the Parties have met as specified in Paragraph 25.
35. A Party must provide written notice of any alleged noncompliance to Defendants at least forty-five (45) days before it files a motion for specific performance and must offer Defendants the opportunity to meet to discuss the alleged noncompliance in an effort to resolve the
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Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 33 of 45

dispute without judicial intervention, except that: (a) a Party must provide written notice of alleged noncompliance with Paragraphs 22 or 23 twentyone (21) days before filing a motion for specific performance, and {b) a Party must provide written notice of alleged noncompliance with subparagraph 15.b ten (10) days before filing a motion for specific performance.
36. A Party may not file a motion for specific performance for
alleged failure to comply with Paragraphs 16 to 19 or for the alleged failure of DPW to accept or adopt the recommendations of the third party as set forth in Paragraph 25. This Paragraph is not intended to foreclose any Party from using the testimony or recommendations of the third party as evidence in support of or to defend against a motion for specific performance for failure to comply with subparagraph 15.b, as defined in Paragraph 25, of the Agreement, but no Party may request the Court to order specific performance of any of the recommendations of the third party.
37. The Agreement is not, and is not to be construed as, a consent decree. Plaintiffs and Intervenors may not seek a remedy of contempt of court for any alleged noncompliance with the Agreement.

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· 38. Subject to the District Court's approval, Defendants will pay Plaintiffs' counsel , the Disability Rights Network of PA, $532,500 for attorneys' fees, litigation expenses, and costs incurred th rough the District Court's final approval of the Agreement. Nothing in this Agreement should be construed to entitle Plaintiffs to or preclude Plaintiffs from recovery of attorneys' fees, litigation expenses , and costs incurred after the District Court's final approval of the Agreement.
39. Subject to the District Court's approval, Defendants will pay Intervenors' counsel $399,500 for attorneys' fees, litigation expenses, and costs incurred through the District Court's final approval of the Agreement. Intervenors have agreed that this amount will be divided and paid as follows: Defendants will pay to Sidley Austin LLP, the sum of $199 ,750; and to Schnader Harrison Segal & Lewis LLP , the sum of $199,750. Nothing in this Agreement should be construed to entitle Intervenors to or preclude Intervenors from recovery of attorneys' fees, litigation expenses, and costs incurred after the District Court's final approval of the Agreement.
40. This Agree-ment will terminate on June 30 , 2018 or thirty (30 ) days after counsel for Defendants notifies counsel for Plaintiffs and counsel for Intervenors that the last class member on the Planning List as of June 30, 2018, has moved to the community, whichever is later, unless the
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Agreement has been extended by agreement of the Parties or by order of the District Court or the Court of Appeals, or unless a motion for specifi c performance is pending. If a motion for specific performance is pending at the time the Agreement is scheduled to terminate, only those provisions of the Agreement that are implicated solely for the purpose of resolving any issues raised in that motion wi ll continue in effect until thirty (30) days after disposition of the motion or any appeal relating to the motion.
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Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 36 of 45

41. The parties will me a stipulation of dismissal ten (1 0) days after the Agreement terminates under Paragraph 40.

Robert W. Meek

Daniel Fellin

Kelly Darr

Deputy Chief Counsel

Disability Rights Network of PA

Department of Public Welfare

1315 Walnut Street, Suite 500 Philadelphia, PA 19107-4105

Office of the Governor's General Counsel

215-238-8070

7th and Forster Sts.

3rd Fl. H&W Bldg.

li
'I

Harrisburg, PA 17120

H

7i 7-783-2800

Counsel for Plaintiffs and the Class
Dated: S/2-7. //1-

Counsel for Defendants Dated: ~~l.) .... f~

Benjamin J . Hoffart Sidley Austin LLP 787 Seventh Avenue New York, NY 10019
212-839-5300
Counsel for Intervenors Springstead, Meo, Bastek, Storm, Lambo, Kohler, Kashatus, and Sheppard
Dated:

Cari A. Solano Schnader Harrison Segal & Lewis
LLP 1600 Market Street, Suite 3600 Philadelphia, PA 191 03-7286
215-751 -2000
Counsel for Intervenor Solano
Dated:

35

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Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 37 of 45

41 . The parties will file a stipulation of dismissal ten (10) days after the Agreement terminates under Paragraph 40.

Robert W. Meek Kelly Darr Disability Rights Network of PA 1315 Walnut Street, Suite 500 Philadelphia, PA 19107-4105 215-238-8070

Daniel Fellin Deputy Chief Counsel Department of Public Welfare Office of the Governor's General Counsel 7th and Forster Sts. 3rd Fl. H&W Bldg. Harrisburg, PA 17120 717-783-2800

Counsel for Plaintiffs and the Class Dated :

Counsel for Defendants Dated :

Benjamin J. offa Sidley Austin LP 787 Seventh Avenue New York, NY 10019 212-839-5300
Counsel for Intervenors Springstead, Meo, Bastek, Storm, Lambo, Kohler, Kashatus, and Sheppard
Dated: ::r;.at' ;o1 2. oli

Ca rl A. Solano Schnader Harrison Segal & Lewis
LLP 1600 Market Street, Suite 3600 Philadelphia, PA 19103-7286 215-751-2000
Counsel for Intervenor Solano
Dated :

35

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. I

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Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 38 of 45

41. The parties will file a stipulation of dismissal ten (1 0) days after the Agreement terminates under Paragraph 40.

Robert W. Meek Kelly Darr
Disability Rights Network of PA 1315 Walnut Street, Suite 500 Philadelphia, PA 19107-4105 215-238-8070

Daniel Fellin Deputy Chief Counsel Department of Public Welfare Office of the Governor's General Counsel 7th and Forster Sts. 3rd Fl. H&W Bldg. Harrisburg, PA 17120 717-783-2800

Counsel tor Plaintiffs and the Class Dated:

Counsel for Defendants

Benjamin J. Hoffart
Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 212-839-5300
Counsel for Intervenors Springstead, Meo, Bastek, Storm, Lambo, Kohler, Kashatus, and Sheppard
Dated:

Carl .

"

Schnader Harrison Segal & Lewis

LLP

1600 Market Street, Suite 3600

Philadelphia, PA 19103-7286

215-751-2000

Counsel for Intervenor Solano

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EXHIBIT A

Resource List

STATEWIDE & NATIONAL

The Arc of Pennsylvania 101 S. 2nd Street #8 Harrisburg, PA 17101 (717) 234-2621 Maureen Cronin, Executive Director

VOR P.O. Box 1208 Rapid City, SO 57709-1208 www.vor.net
Tamie Hopp, Director of Government Relations & Advocacy thopp@vor.net (605) 399-1624

Vision for EQuality 718 Arch St. #6N Philadelphia, PA 19106 (215) 923-3349 Audrey Coccia, CoExecutive Director Maureen Devaney, CoExecutive Director

Autism Society of Pittsburgh 4371 Northern Pike Monroeville, PA 15146 www.autismsocietypgh .org
Deborah Dawson, Executive Director ddawson@autismsocietyQgh. org (412) 856-7428

Pennsylvania League of Concerned Fam ilies 3100 Laurel Run Avenue Reading , PA 19605

John Bastek, President iib19605@verizon.net (610) 921-0780

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Community Facility and Provider Incident Reports

To locate License Inspection Summaries (LIS 's) for an Office of Developmental Programs (ODP) provider, there are two websites that you will need to use. The first site is the Human Services Provider Directory (HSPD). This site contains all LIS's prior to June 1, 2012. The second site
is the Services and Supports Directory (SSD) homepage. This site contains many recent LIS's completed after September 1, 2013. If an LIS
for a provider cannot be found on the HPSD site they will be found on the SSD site.

The Human Services Provider Directory (HSPD)

1.

Go

to

http://www .dpw.state .pa.us/searchforprovider/huma ns ervi cesp rov i d e r

directory/index.htm. This link will take you to a page which displays a

search box with a variety of options to search all human services providers.

2. The second option in the search box is for a program office . Click on
this box and choose "Office of Developmental Programs" from the list of program offices that appears.

3. The last option in the search box is for the name of the facility. Type the name of the name of your facility of interest.

4. Click "Submit Search" button at the bottom of the search box.

5. A list of facilities with a matching provider name will be provided

6. Locate the facility you are interested in on the list and click the link labeled "Inspection Summaries", located to the right of the facility name under the heading "Status & License#".

7. You will then be directed to the "Violation Reports History, page where you can see the dates of inspections for a facility.

8. By clicking on the ~~view Report" link on the right hand side of the page, you can see the Certificate of Compliance and any Plans of Correction required for the provider.

37

Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 41 of 45
The Services and Supports Directory (SSD) Since use of this site is newer, not all providers or provider locations wil l have LIS's on this site. 1. Go to: https://www. hcsis.state.pa. us/hcsis-ssd/pgm/asp/prhom.asp. This link will take you to the homepage for the HCSIS Service and Supports Directory. 2. Click on the "Providers" link found on the left-hand side of the screen. 3. From there, you will be taken to a page which lists all provider names which begin with an "A". Select the first letter of the individual provider in which you are interested from the index of letters found above the list of "A" name providers on this page. 4. Once you have located your provider of interest using the alphabetical listings, select the provider by clicking on its name. 5. Then, in the yellow box on the top, right-hand side of the provider's page, select the second link titled ""Go to this service provider's certification information". 6. This link will bring you to a list of all service locations for the selected provider. 7. Clicking on a service location name will bring you to the Certificate History specific to that service location. 8. On this page there are four tabs labeled "Certificate History", "Waivers", "Inspections", and "Negative Sanctions." 9. Under the tab labeled "Inspections" will be the most recent inspection summary information for that provider service location.
38

'· i
Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 42 of 45

Ebensburg Center

The Arc of Cambria County
960 Bedford Street Johnstown, PA 15902 814-535-1511 Executive Director Jennifer Zufall

Parents and Friends of Ebensburg Center Mary Wills, President mlwzig@yahoo.com (814) 674-8509
Hamburg Center

The Arc Alliance 3075 Ridge Pike Eagleville, PA 19403 61 0-265-4700 CEO Paul Stengle

Parents and Friends of Hamburg Center
John Bastek, President jib19605@verizon. net (61 0) 921-0780

The Arc of Clarion & Venango Counties 22 South 2nd Avenue Clarion , PA 16214 8 14-2 2 6-7033 -Executive Director·Luanne McNamara

Polk Center
Parents and Friends of Polk Center
Joe La-mbo, Presid ent jolambo@aol.com (724) 652-0344

39

.. I
Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 43 of 45

Selinsgrove Center

The Arc, Susquehanna Parents and Friends Association of

Valley

Selinsgrove Center

P 0 Box 892

Scmbury, PA 17801

Lana Snyder, President

570-286-1008

mom3434@aol.com

Executive Director Ed Coup (570) 768-4605

White Haven Center

The Arc of Luzerne County White Haven Center Relatives & Friends 69 Public Square, Ste. 1020 Association

Wilkes-Barre, PA 18701

· 570-970-7739

Thomas Kashatus , President

Executive Director Pamela tomkash@verizon. net

Zotynia

(570) 736-6981

40

·l .
Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 44 of 45
EXHIBIT 8
Abuse. The allegation or actual occurrence of the infliction of injury, unreasonable confinement, intimidation, punishment, mental anguish, sexual abuse or exploitation. Abuse is reported on from the victim's perspective , not on the person committing the abuse.
(i) Physical abuse. An intentional physical act by staff or other person which causes or may cause physical injury to an individual, such as striking or kicking, applying noxious or potentially harmful substances or conditions to an individual.
(ii ) Psychological abuse. An act, other than ve rbal , which may inflict emotional harm, invoke fear or humiliate, intimidate, degrad e or demean an individual.
(iii) Sexual abuse. An act or attempted acts such as rape , incest, sexual molestation , sexual exploitation or sexual harassment and inappropriate or unwanted touching of an individual by another. Any sexual contact between a staff person and an individual is abuse.
(iv) Verbal abuse. A verbalization that inflicts or may inflict emotional harm, invoke fear or humiliate, intimidate, degrade or demean an individual.
(v) Improper or unauthorized use of restraint. A restraint not approved in the individual support plan or one that is not a part of an agency's emergency restraint procedure is considered unauthorized . A restraint that is intentionally applied incorrectly is considered an improper use of restraint.
Individual-to-individual abuse. An interaction between one individual receiving services and another individual receiving services resulting in an allegation or actual occurrence of the infliction of injury, unreasonable confinement, intimidation , punishment, ment al anguish , sexual abuse or exploitation. Individual-to-individual abuse is reported on from the victim's perspective , not on the person committing the abuse.
(i) Physical abuse. An intentional physical act that causes or may cause physical injury to an individual, such as striking or kicking, or applying noxious or potentially harmful substances or conditions to an individual.
(ii) Psychological abuse. An act, other than ve rbal , which may inflict emotional harm, invoke fear or humiliate, intimidate, degrade or demean an individual.
(iii) Sexual abuse. An act or attempted act such as rape, incest, sexual molestation, sexual exploitation or sexual harassment and inappropriate or
1

·. . :
Case 1:09-cv-01182-JEJ Document 339-3 Filed 06/11/14 Page 45 of 45
,·
unwanted touching of an individual by another. Nonconsensual sex between individuals receiving services is abuse.
(iv) Verbal abuse. A verbalization that inflicts or may inflict emotional harm, invoke fear or humiliate, intimidate, degrade or demean an individual. Neglect. The failure to obtain or provide the needed services and supports defined as necessary or otherwise required by law or regulation. This includes the failure to provide needed care such as shelter, food , clothing , personal hygiene , medical care , protection from health and safety hazards, attention and supervision, including leaving individuals unattended and without other basic treatment and necessities needed for development of physical , intellectual and emotional capacity and well-being. This includes acts that are intentional or unintentional regardless of the obvious occurrence of harm.
2

 
 Nos. 11-3684, 11-3685
IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
___________________________
FRANKLIN BENJAMIN, et al.,
Plaintiff-Appellees
v.
PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE, et al.,
Defendant-Appellees
CRAIG SPRINGSTEAD, et al.,
Appellants ___________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ___________________________
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF APPELLEES AND URGING AFFIRMANCE
___________________________
THOMAS E. PEREZ Assistant Attorney General
MARK L. GROSS NATHANIEL S. POLLOCK Attorneys Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403 Washington, DC 20044-4403 (202) 514-0333

TABLE OF CONTENTS
PAGE
INTEREST OF THE UNITED STATES ..................................................................1
STATEMENT OF THE ISSUES...............................................................................2
STATEMENT OF THE CASE..................................................................................3
SUMMARY OF THE ARGUMENT ........................................................................9
ARGUMENT
I COMMUNITY PLACEMENT IS THE LEGALLY CORRECT PLACEMENT FOR INDIVIDUALS IN THE “DEFAULT” GROUP................................................................12
A. The Settlement’s Treatment Of The “Default” Group .............12
B. Federal Law Prefers Community-Based Rather Than Institutional Treatment For Individuals With Mental Disabilities ................................................................................13
C. The Legally Correct “Default” For Individuals Who Can Be Served In A Community Placement Is Community Placement ..................................................................................17
D. Appellants’ Arguments Fail ......................................................20
II THE CLASS MEETS RULE 23’S REQUIREMENTS .....................25
A. The Class Is Not Too Indefinite ................................................26
B. The Class Definition Does Not Contain An “Opt-Out” Provision ...................................................................................28
C. The Class Meets Rule 23’s Cohesiveness And Commonality Requirements ......................................................29

TABLE OF CONTENTS (continued):

PAGE

D. The Class Meets Rule 23’s Typicality Requirement .................31

E. Class Certification Was Procedurally Proper..........................32

III THE SETTLEMENT AGREEMENT IS FAIR, ADEQUATE, AND REASONABLE.........................................................................32

CONCLUSION ........................................................................................................34

CERTIFICATE OF EXEMPTION FROM BAR MEMBERSHIP

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

-ii-

TABLE OF AUTHORITIES

CASES:

PAGE

Alexander v. Choate, 469 U.S. 287 (1985)..............................................................13

Auer v. Robbins, 519 U.S. 452 (1997).....................................................................15

Girsh v. Jepson, 521 F.2d 153 (3d Cir. 1975) .....................................................8, 32

Hagan v. Rogers, 570 F.3d 146 (3d Cir. 2009) .......................................................26

In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 (3d Cir. 2008)..................32

In re Schering Plough Corp. ERISA Litig., 589 F.3d 585 (3d Cir. 2009) ...............31

M.R. v. Dreyfus, 663 F.3d 1100 (9th Cir. 2011)......................................................16

Messier v. Southbury Training Sch., 562 F. Supp. 2d 294 (D. Conn. 2008)..... 19-20

Olmstead v. L.C. by Zimring, 527 U.S. 581 (1999)..........................................passim

Pennsylvania Prot. & Advocacy, Inc. v. Pennsylvania Dep’t of Pub. Welfare, 402 F.3d 374 (3d Cir. 2005) .................................................................... 16-17

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011)................................... 28-29

STATUTES:

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794 .................................1 29 U.S.C. 794a.................................................................................................2

Americans with Disabilities Act, 42 U.S.C. 12132 (Title II) ....................................1 42 U.S.C. 12133........................................................................................... 1-2 42 U.S.C. 12134(a) ..........................................................................................2

29 U.S.C. 701(b)(1)..................................................................................................14

42 U.S.C. 12101(a)(2)..............................................................................................14

-iii-

STATUTES (continued):

PAGE

42 U.S.C. 12101(a)(3)..............................................................................................14

42 U.S.C. 12101(a)(5)..............................................................................................14

55 Pa. Code § 6400.1 (2012) ...................................................................................16

REGULATIONS:

28 C.F.R. Pt. 35..........................................................................................................2

28 C.F.R. 35.130(d) .............................................................................................2, 15

28 C.F.R. 35.130, App. A (1996).............................................................................15

28 C.F.R. 35.130(e)(1) (1998) .................................................................................19

28 C.F.R. Pt. 35, App. A (1998) ..............................................................................19

28 C.F.R. Pt. 35, App. B, Subpt. F ............................................................................2

28 C.F.R. Pt. 41..........................................................................................................2

28 C.F.R. 41.51(d) ...............................................................................................2, 15

Nondiscrimination on the Basis of Disability in State and Local Government Services, 56 Fed. Reg. 35,694, 35,705 (July 26, 1991)............15

LEGISLATIVE HISTORY:

H.R. Rep. No. 485 (pt. 3), 101st Cong., 2d Sess. (1990).........................................14

S. Rep. No. 116, 101st Cong., 1st Sess. (1989) .......................................................14

118 Cong. Rec. 525-526 (1972)...............................................................................13

RULES:

Fed. R. Civ. P. 23(a)(3)............................................................................................31 -iv-

MISCELLANEOUS:

PAGE

Civil Rights Comm’n, Accommodating the Spectrum of Individual Abilities (1983) ........................................................................................ 14-15

Charles Alan Wright, et al., Federal Practice & Procedure § 1760 (3d ed. 2005) ............................................................................................ 26-27

K. Charlie Lakin, et al., Behavioral Outcomes of Deinstitutionalization for People with Intellectual Disability: A Review of U.S. Studies Conducted Between 1980 and 1999, 10 Research and Training Center on Community Living, No. 1 (1999) .................................................24

K. Charlie Lakin, et al., Behavioral Outcomes of Deinstitutionalization for People with Intellectual and/or Developmental Disabilities: Third Decennial Review of U.S. Studies, 1977-2010, 21 Research and Training Center on Community Living, No. 2 (2011) ..................... 24-25

U.S. Dept. of Health & Human Servs., The Pennhurst Longitudinal Study: A Report of Five Years of Research and Analysis (1985) .............................23

-v-

IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
___________________________
Nos. 11-3684, 11-3685
FRANKLIN BENJAMIN, et al.,
Plaintiff-Appellees
v.
PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE, et al.,
Defendant-Appellees
CRAIG SPRINGSTEAD, et al.,
Appellants ___________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ___________________________
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF APPELLEES AND URGING AFFIRMANCE
___________________________
INTEREST OF THE UNITED STATES
This case implicates the rights of individuals with disabilities under Section
504 of the Rehabilitation Act of 1973, 29 U.S.C. 794 (Section 504), and Title II of
the Americans with Disabilities Act (ADA), 42 U.S.C. 12132 (Title II). The
Attorney General has authority to bring civil actions to enforce Title II and Section
504 and has promulgated regulations implementing both statutes. See 42 U.S.C.

- 2 12133, 12134(a); 29 U.S.C. 794a; 28 C.F.R. Pt. 35, App. B, Subpt. F; 28 C.F.R. Pts. 35 and 41.
Here, plaintiffs filed a class action lawsuit to enforce regulations promulgated under Section 504 and Title II that require individuals with disabilities to be served “in the most integrated setting appropriate” to their needs. See 28 C.F.R. 41.51(d); 28 C.F.R. 35.130(d). The Supreme Court in Olmstead v. L.C. by Zimring, 527 U.S. 581 (1999), interpreted these regulations to mean that “[u]njustified isolation” of individuals with disabilities “is properly regarded as discrimination based on disability.” Id. at 597.
The United States regularly brings cases and files amicus briefs to vindicate the Olmstead rights of institutionalized individuals. See, e.g., United States v. Delaware, No. 11-cv-591 (D. Del.); United States v. Georgia, No. 10-cv-249 (N.D. Ga.); see also, e.g., U.S. Br., Disability Advocates, Inc. v. Paterson, et al., No. 10-235-cv (L) (2d Cir.) (Oct. 6, 2010); U.S. Br., Cota, et al. v. Maxwell-Jolly, et al., No. 10-15635 (9th Cir.) (July 22, 2010). This case presents issues that may profoundly impact our Olmstead enforcement.
STATEMENT OF THE ISSUES The United States will address: 1. Whether the district court abused its discretion in approving a settlement agreement that requires community placement for individuals with developmental

- 3 disabilities who are qualified for community-based services but express no preference regarding such placement and lack a guardian or involved family member to express a preference on their behalf.
2. Whether the district court abused its discretion when it certified the proposed class.
3. Whether the district court abused its discretion in approving the settlement.
STATEMENT OF THE CASE 1. Five people institutionalized in Pennsylvania state centers for individuals with developmental disabilities (State Centers) filed this lawsuit seeking community placements for themselves and others similarly situated. JA75-102 (Amended Complaint). They alleged that, in violation of Section 504 and Title II, Pennsylvania failed to offer community placements to State Center residents who do not oppose community placement and for whom such placement is appropriate. JA76, 97-101. Pennsylvania has five State Centers. JA297 (Plaintiffs’ Statement of Undisputed Facts). The largest, Selinsgrove Center, had 334 residents in September 2009, while the smallest, Hamburg Center, had 124; as of December 2011 the total census is 1150. JA298; Appellants’ Br. 11 (citing Kuhno Testimony). Because of the institutional nature of the State Centers, they provide

- 4 very limited opportunities for residents to interact with the community at large. JA305. Most of the centers are located in rural areas and daily activities typically are held on the grounds of the institution. JA305.
In addition to providing these State institutions and funding similar private congregate care institutions,1 Pennsylvania funds community-based services for more than 50,000 individuals with developmental disabilities. JA356 (Defendants’ Statement of Undisputed Facts). This funding supports a range of communitybased services, including: “residential services (such as small group homes or family living situations); day programming (such as vocational training, supported employment, development of community integration skills, and socialization); therapies (including behavioral supports); home health care (including up to 24 hours per day of skilled nursing); home modifications; assistive technology; and respite services.” JA300 (Plaintiffs’ Statement of Undisputed Facts).
Plaintiffs allege that they are able, with appropriate services and supports, to live in a community setting instead of an institution; they are not opposed to moving to a community placement; and the State has failed to provide them with the option of moving to a community setting. JA76-78 (Amended Complaint).
1 Approximately 2500 individuals with developmental disabilities in Pennsylvania live in private congregate care institutions. JA300 (Plaintiffs’ Statement of Undisputed Facts).

- 5 -
3. Soon after filing the case, plaintiffs moved for class certification. JA103104. They defined the class as:
All persons who: (1) currently or in the future will reside in one of Pennsylvania’s state-operated intermediate care facilities for persons with mental retardation; (2) could reside in the community with appropriate services and supports; and (3) do not or would not oppose community placement. JA103-104. Pennsylvania did not oppose class certification. JA103. It admitted that all residents of the five State Centers could, with the appropriate services and supports, live in a community placement. JA303 (Plaintiffs’ Statement of Undisputed Facts). It also admitted that there are no services or supports provided at the State Centers “that cannot be and are not currently provided” to individuals with developmental disabilities in Pennsylvania’s community system. JA304. The district court certified the class (JA36-39) and denied Pennsylvania’s motion to dismiss. JA177-178. While the motion to dismiss was pending, a group of State Center residents (collectively “Springstead”) moved to intervene to protect their ability to continue to live in a State Center. JA166-170. The district court denied the motion, concluding that Springstead was not part of the class. JA189-210. Springstead appealed. JA55 (Doc. 42).

- 6 -
While that appeal was pending, the parties each moved for summary judgment (the United States filed a brief supporting the plaintiffs’ motion). JA5657 (Docs. 48, 51, & 62). The district court granted plaintiffs summary judgment. JA410-433. It recognized that the first two elements of an Olmstead claim, appropriateness of community placement and non-opposition to community placement, were clearly established. JA425. It ruled that the State could not establish that providing community placement for State Center residents was a fundamental alteration of its program. JA429-431. The court did not grant relief, but referred the case to mediation. JA432 & n.12.
4. This Court affirmed the denial of Springstead’s intervention motion (JA436-446) concluding that Springstead and Diane Solano2 (collectively “Springstead/Solano”) failed to show that the litigation poses a tangible threat to a legally cognizable interest. JA443. It rejected Springstead/Salono’s argument that they are de facto members of the class (JA443) and held that “they will not be personally bound by anything that is decided in this litigation.” JA443.
5. After this Court’s decision, the parties agreed to a settlement (JA466480) that the district court preliminarily approved (JA485-488). The settlement agreement provides that the State will maintain a “Planning List” of all State
2 Diane Solano (now an appellant), a State Center resident whose guardian wants her to remain in a State Center, was an amicus curiae in the first appeal. See Benjamin v. Dept. of Pub. Welfare, No. 10-1908 (3d Cir. 2010) docket.

- 7 Center residents not opposed to community placement. JA470. Opposition includes opposition by guardians or involved family members, and will be assessed annually for each resident. JA470-471. A resident not opposed to community placement will be placed on the Planning List unless an involved family member or guardian opposes community placement for the resident. JA471. Only a legal guardian can override a resident’s stated preference for community placement. JA471. The settlement also provides for education about community placement, including: training events for residents and family members; distribution of written material about community placement options; opportunities for residents and families to visit community placements serving individuals with needs similar to those of the residents; and opportunities to speak with family members of individuals with developmental disabilities currently in community placements. JA472-474. The settlement requires the State to develop an integration plan that provides community placements to 50 State Center residents in the current fiscal year, 75 residents next year, 100 residents in years three and four, and 75 residents in year five. JA474-475.
Springstead and Solano filed objections to the settlement (JA948-998 (Solano Objections); JA1013-1052 (Springstead Objections)) and again moved to intervene (JA1000-1012 (Solano Motion); JA1062-1066 (Springstead Motion)).

- 8 They raised the same objections to the settlement they raise here, and argued, as they have here, that class certification was improper. JA948-998, 1013-1052.
Plaintiffs argued that all of the factors this Court set out in Girsh v. Jepson, 521 F.2d 153 (3d Cir. 1975), favor approval of the settlement. Doc. 261 at 13-22. The United States supported this argument. JA1067-1084.
A week before the fairness hearing, the district court denied Springstead/Solano’s new motions to intervene, incorporating its denial of the first motion to intervene and noting that this Court affirmed that ruling on appeal. JA33-35. The district court said that it would nonetheless consider Springstead/Solano’s written objections and allow them to question witnesses and speak at the fairness hearing. JA34.
At the fairness hearing, three witnesses testified about the process of determining a resident’s preference, and of moving individuals to community placements. JA1353-1438. Springstead/Solano questioned these witnesses, and argued against the settlement. JA1457-1474, 1491-1492. Plaintiffs, the State, and a Department of Justice attorney argued in support of the settlement. JA14751491.
6. A week later, the district court approved the proposed settlement, carefully analyzing the Girsh factors. JA5-32. The court concluded that objections from people who are not class members because they oppose

- 9 community placement are not probative of the class members’ views and thus not relevant. JA17. The court determined that the settlement’s effect on non-class members “is negligible compared to the effect that a wholesale denial of the Settlement Agreement will have on those who do not oppose discharge.” JA17 n.2. It held that because the settlement did not require any State Center to close, objection on the grounds that State Centers should stay open was misplaced. JA22. It declined to reconsider its class certification decision. JA19 n.4. The district court did, however, express concern about the settlement agreement’s treatment of State Center residents with profound disabilities who have no guardian or involved family member. JA21-22.
Springstead/Solano appealed the approval of the settlement and denial of their motions to intervene. JA1-2 (Springstead NOA); JA3-4 (Solano NOA). They also sought a partial stay of the settlement approval, which the district court denied. Doc. 297 at 1-2 & n.1. In that denial, the court dropped its prior reservations about the settlement, calling that portion of its opinion “an inconsequential observation.” Doc. 297 at 2 n.1.
SUMMARY OF THE ARGUMENT “Unjustified isolation” of individuals with mental disabilities “is properly regarded as discrimination based on disability,” and is prohibited by federal law. See Olmstead v. L.C. by Zimring, 527 U.S. 581, 597 (1999). That is the promise of

- 10 Olmstead. The United States presents this amicus brief because appellants’ arguments threaten that promise in two fundamental ways, and because the district court correctly approved the fair, adequate, and reasonable settlement in this case.
1. Appellants argue that the legal “default” for an institutionalized person who can appropriately be served in a community placement but is unable to express a preference for or against community placement is to remain institutionalized. That is wrong. An institutionalized person who can live in the community, but cannot express a preference regarding community placement and lacks a guardian or involved family member to express a preference on his or her behalf, should be placed in the community. Federal law strongly favors integration of individuals with disabilities into the community over segregation in large institutions. Olmstead confirms that community placement, not institutionalization, is the legal presumption. Moreover, a significant body of research and scholarship supports the law’s unambiguous preference for community-based care, even for individuals whose disabilities are severe.
2. Appellants’ argument that class certification was improper attacks the availability of Olmstead class actions generally. But Olmstead clearly indicates that class actions are the best private means of enforcing the right to be free from unjustified institutionalization.

- 11 Class certification in this case was proper. The class is not too indefinite because inclusion on the Planning List determines current class membership. The class definition does not include an “opt-out” provision but merely reflects, as it must, the substantive right the class seeks to enforce. The class meets Rule 23’s commonality requirement because a single inquiry decided liability for the entire class and the class is entitled to a single remedy. The class meets the typicality requirement because the named plaintiffs have precisely the same legal claim as everyone else in the class – i.e., no legally relevant facts distinguish the named plaintiffs from other class members. Class certification was procedurally proper. 3. Finally, the district court correctly determined that the settlement is fair, adequate, and reasonable. 3
3 The United States recognizes that if this Court accepts appellees’ argument that this appeal is improper, it need not consider the merits issues we address in this brief. This brief does not address the appealability issue, although we stand by our position in the district court that appellants are not class members because they oppose community placement. See JA1076-1077 (U.S. Statement Supporting the Settlement Agreement).

- 12 ARGUMENT
I COMMUNITY PLACEMENT IS THE LEGALLY CORRECT PLACEMENT FOR INDIVIDUALS IN THE “DEFAULT” GROUP A. The Settlement’s Treatment Of The “Default” Group Many State Center residents simply are unable, because of the nature of their disabilities, to express a preference for or against community placement. Most of them have a guardian or involved family member who speaks for them and who, under the settlement agreement, will decide whether they oppose a community placement. Approximately 125 State Center residents (about 10%) similarly cannot express a preference but do not have a guardian or involved family member who speaks for them. JA1483-1484 (Hearing Transcript). Under the terms of the settlement agreement (JA470-471), these residents (the “default” group) are part of the class because they do not oppose community placement. They will be placed on the Planning List (JA470-471), and will move to a community placement when their treatment team determines there is a placement available that meets their needs (JA476). Appellants maintain that this part of the settlement agreement violates Olmstead v. L.C. by Zimring, 527 U.S. 581 (1999). They argue that individuals in the “default” group should stay in the State Centers. Br. 56. This argument is the

- 13 primary support for their claim that the settlement is unfair, and is a key component of their arguments that class certification was improper.
The “default” group issue raises a critical legal question about the implementation of Olmstead. In our view, the correct interpretation of the ADA, Section 504, their implementing regulations, and Olmstead is that people who can be served in the community and do not express opposition to moving to the community should be served in the community. This category includes people who are unable, because of their disabilities, to express an opinion about whether to move to a community placement. B. Federal Law Prefers Community-Based Rather Than Institutional Treatment
For Individuals With Mental Disabilities Federal law exhibits a strong preference for treatment in the community rather than in large institutions. When it enacted Section 504 of the Rehabilitation Act in 1973, and again when it enacted the Americans with Disabilities Act in 1990, Congress was concerned that individuals with disabilities were unnecessarily segregated from society. Sponsors of the Rehabilitation Act condemned the “invisibility of the handicapped in America,” and introduced bills responding to the country’s “shameful oversights” that caused individuals with disabilities “to live among society ‘shunted aside, hidden, and ignored.’” See Alexander v. Choate, 469 U.S. 287, 296 (1985) (citing 118 Cong. Rec. 525-526 (1972)). An

- 14 -
express purpose of Section 504 was “to maximize” the “inclusion and integration [of individuals with disabilities] into society.” 29 U.S.C. 701(b)(1).
Before enacting the ADA, Congress recognized that the Rehabilitation Act had not fulfilled the “compelling need * * * for the integration of persons with disabilities into the economic and social mainstream of American life.” S. Rep. No. 116, 101st Cong., 1st Sess. 20 (1989). Congress passed the ADA to “continue to break down barriers to the integrated participation of people with disabilities in all aspects of community life.” H.R. Rep. No. 485 (pt. 3), 101st Cong., 2d Sess. 49-50 (1990). Congress specifically found that “institutionalization” is one of the “critical areas” in which discrimination against individuals with disabilities persists. 42 U.S.C. 12101(a)(3). It further 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). And it found that “segregation” of individuals with disabilities is a “form[] of discrimination.” 42 U.S.C. 12101(a)(5).4
4 These findings were drawn from the almost-identical findings made by the U.S. Commission on Civil Rights in a report entitled Accommodating the Spectrum of Individual Abilities (Clearing House Pub. No. 81, 1983) (Report). The Report also observed that “[i]nstitutionalization almost by definition entails segregation and isolation,” and noted that, while “[t]here has been increasing acceptance in recent years of the fact that most training, treatment, and habilitation services can
(continued…)

- 15 -
Section 504, and Title II of the ADA (which applies to public entities) mandate integration of individuals with disabilities into the community. The ADA’s integration regulation provides that “[a] public entity shall 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) (emphasis added). Section 504’s integration regulation is nearly identical. See 28 C.F.R. 41.51(d). The preamble to the ADA’s regulations explains that “the most integrated setting” is “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” Nondiscrimination on the Basis of Disability in State and Local Government Services, 56 Fed. Reg. 35,694, 35,705 (July 26, 1991) (codified at 28 C.F.R. 35.130, App. A (1996)). As the Supreme Court said in Olmstead, the Department of Justice has consistently interpreted its Section 504 and ADA regulations to prohibit undue institutionalization, and has argued that undue institutionalization is discrimination by reason of disability. See Auer v. Robbins, 519 U.S. 452, 461 (1997) (holding that an agency’s interpretation of its own regulations is “controlling unless plainly erroneous or inconsistent with the regulation”) (citation and internal quotation
(…continued) be better provided to handicapped people in small, community-based facilities rather than in large, isolated institutions, * * * a great many handicapped persons remain in segregative facilities.” Report at 44-46.

- 16 -
marks omitted); see also M.R. v. Dreyfus, 663 F.3d 1100, 1117 (9th Cir. 2011) (applying Auer deference to the Department of Justice’s interpretation of integration regulations). This Court has interpreted these regulations to mean that “where appropriate for the patient, both the ADA and [Section 504] favor integrated, community-based treatment over institutionalization.” Pennsylvania Prot. & Advocacy, Inc. v. Pennsylvania Dept. of Pub. Welfare, 402 F.3d 374, 379 (3d Cir. 2005) (citation omitted).5
In Olmstead, the Court held that “[u]njustified isolation * * * is properly regarded as discrimination based on disability.” 527 U.S. at 597. It explained that “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” Id. at 600. And it determined that “confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Id. at 600-601. The Court ruled that public entities must provide community-based services to people with disabilities when (a) such services are appropriate, (b) the affected person does not oppose community-based treatment, and (c) community-based
5 Pennsylvania law also indicates a preference for community-based care rather than institutionalization for individuals with mental disabilities. 55 Pa. Code § 6400.1 (2012).

- 17 services can be reasonably accommodated, taking into account the resources available to the entity and the needs of others who are receiving disability services from the entity. Id. at 607; see also, e.g., Pennsylvania Prot. & Advocacy, Inc., 402 F.3d at 379 (citing this three-part test). C. The Legally Correct “Default” For Individuals Who Can Be Served In A
Community Placement Is Community Placement The question here is what placement is appropriate under the law for those residents who cannot express a preference concerning community placement and do not have a guardian or involved family member to express a preference for them. This might be a conundrum if federal law were neutral between the two available options. But federal law is not neutral; it plainly favors communitybased treatment over institutional treatment for people for whom community placement is appropriate. In view of this clear preference, it would make no sense at all for the legal default to be that the State keeps these individuals unnecessarily in institutional care. The default for people who could be served in a community setting but cannot make their wishes known hardly should be care that “perpetuates unwarranted assumptions that [they] are incapable or unworthy of participating in community life” and “severely diminishes [their] everyday life activities.” See Olmstead, 527 U.S. at 600-601. The Court’s formulation of the Olmstead test confirms that communitybased treatment is the presumption for people for whom it is appropriate. The

- 18 Court was careful to say that, subject to the other two conditions, people must be transferred from institutional to community care if such transfer “is not opposed by the affected individual.” 527 U.S. at 587 (emphasis added). The Court used the same non-opposition formulation at the end of the opinion: community-based treatment is required when “the affected persons do not oppose such treatment.” Id. at 607 (emphasis added). And when the Court applied the test, it concluded that the first two prongs were satisfied because “[t]he State’s own professionals determined that community-based treatment would be appropriate for [the plaintiffs], and neither woman opposed such treatment.” Id. at 603. Because the plaintiffs in Olmstead affirmatively sought transfer from institutions to community-based programs, id. at 593-594, the Court could have decided Olmstead more narrowly by holding only that residents who express a desire to go to a community placement must be moved. Yet the Court was careful to say (indeed it seemed to stress) that the requirement is non-opposition to community treatment.
Olmstead also confirms in another way that community placement should be the default. As appellants point out (Br. 17-18), the Court said that there is no “federal requirement that community-based treatment be imposed on patients who do not desire it.” 527 U.S. at 602. But then the Court cited two regulatory provisions, one explaining that “[n]othing in [the ADA’s integration regulation]

- 19 shall be construed to require an individual with a disability to accept an accommodation ... which such individual chooses not to accept” and another stating that “persons with disabilities must be provided the option of declining to accept a particular accommodation.” See ibid. (citing 28 C.F.R. 35.130(e)(1) (1998) and 28 C.F.R. Pt. 35, App. A, p. 450 (1998)). Based on this regulatory language, to stay in an institutional setting, a person who could be served in a community setting must “choose[] not to accept” or must “declin[e] to accept” the option of community-based treatment. See ibid. If an affirmative decision to stay in an institution is required for a person for whom community-based treatment would be appropriate, that obviously means that, without that affirmative decision to stay, the person should be moved into the community.
While no federal court of appeals decision has directly confronted this “default” issue, the issue was addressed in Messier v. Southbury Training School, 562 F. Supp. 2d 294 (D. Conn. 2008). In Messier, as here, a class of residents of a state-run institution for individuals with mental disabilities alleged that they could be treated in community settings, but were being unjustifiably institutionalized. Messier held that “[t]he ADA’s preference for integrated settings is not consistent

- 20 -
with a procedure in which remaining at [the institution] is the default option for residents.” Id. at 337.6
D. Appellants’ Arguments Fail
Springstead/Solano’s primary legal argument is that “[a] central tenet of
Olmstead is that residents have a right to remain in institutional facilities unless
they choose to move elsewhere.” Br. 55-56. They fail to point to specific
language in Olmstead that supports this characterization, nor do they proffer other
authority. Olmstead really means that residents for whom community placement is
appropriate have a right to live in the community unless they choose not to. As
explained above, the ADA, Section 504, the integration regulations, and Olmstead
reveal that the “default” for individuals for whom community-based treatment is
appropriate is community-based treatment. So in the absence of discernable choice
they should be placed in a community setting.
Springstead/Solano also argue that Olmstead requires an individual with
developmental disabilities to be moved from an institutional placement to a
community placement only if there is a showing that the community placement
6 We recognize Messier is not precisely on all fours with this case because in Connecticut individuals with mental disabilities who have no guardian are wards of a state-appointed organization. The “default” in Messier was the State’s use of responses to one very general and ambiguous survey question to categorically exclude the vast majority of the residents of a large institution from consideration for a community placement, even though other evidence suggested many of the excluded persons were not opposed to a community placement. Id. at 337-339.

- 21 would be better for that individual than an institutional placement, and claim that showing was not made here. Br. 57-58. They cite as support Olmstead’s statement that federal law does not “condone[] termination of institutional settings for persons unable to handle or benefit from community settings.” 527 U.S. at 601602. But in the sentences that immediately follow and elucidate this statement, the Court explained that Title II protects only “qualified individuals,” meaning people who “mee[t] the essential eligibility requirements” for community placement. Id. at 602 (citation omitted). Context accordingly reveals that the Court was merely saying that people who cannot live in a community placement should not be moved to one. This is consistent with the first component of the Court’s test that requires a determination of whether community placement is “appropriate” for the resident. Id. at 587, 607.
Springstead/Solano also say that the State Centers are “home” for these individuals with severe disabilities because many of them have lived there for years and consider staff members and fellow residents family. Br. 56-59. They argue that moving will be traumatic and harmful for these individuals (Br. 56-59) and cite an article giving community-based treatment mixed reviews and noting certain drawbacks. Br. 34 & n.5.7
7 An amicus brief filed in support of appellants claims that “research shows that these individuals will ultimately face neglect, abuse, and death in community
(continued…)

- 22 -
Those arguments must be rejected. First, Springstead/Solano are merely projecting. Their feelings about how moving would impact their wards provide no basis for conclusions about how State Center residents in the “default” group are likely to feel about and react to community placement. Springstead/Solano do not know the people whose unexpressed thoughts and feelings they purport to understand and explain, nor do they cite any evidence to support their theory about how these people feel. The article they cite discusses certain objective risks, but provides no support for the claim that moving individuals with severe disabilities to community settings “may irreparably aggravate psychological injuries.” See Br. 34, 58. In reality, Springstead/Solano have no idea how individuals in the “default” group will react to a community placement.
On the other hand, the people charged with caring for State Center residents do know the people in the “default” group. These professionals, not Springstead/Solano, must ensure the appropriateness of community placements for the individuals on the Planning List, including those in the “default” group. Moreover, the State’s conclusion that all State Center residents could be
(…continued) placement because there simply is [sic] not enough services to care for them.” VOR Br. 16. As explained, pp. 23-25, infra, this view is hardly unanimous. In fact, most professionals in the field have concluded that moving individuals with developmental disabilities to the community is extremely beneficial. A very significant body of academic research supports that conclusion.

- 23 appropriately cared for in a community setting with the requisite services and supports is not, as Springstead/Solano say, “an unfounded presumption.” See Br. 62. The State provides community-based mental-health services to over 50,000 people, and there are “currently people with the same types of needs as the residents of the state centers who are currently living in the community,” including people who need “24-hour awake supervision,” and people who cannot feed themselves. JA356 (Defendants’ Statement of Undisputed Facts); JA1420-1421 (Hearing Transcript). Indeed, the state employee in charge of ensuring that community services and supports are appropriate testified that she could not think of any need an individual with developmental disabilities could have that cannot be met in the community. JA1417-1418, 1421.
Additionally, there is a significant body of research and scholarship showing that many individuals with developmental disabilities, including severe developmental disabilities, have experienced measurable benefits after moving from an institutional setting to a community setting. One early study concluded that institutionalized people who moved to community living arrangements “became sharply less dependent.” U.S. Dept. of Health & Human Servs., The Pennhurst Longitudinal Study: A Report of Five Years of Research and Analysis 187 (1985). That same study found that “the people who seem to make the greatest gains in adaptive behavior tend to be those who start out lowest”; in other

- 24 words, “the people with the most severe impairments turn out to be those who benefit the most from community placement.” Ibid.
Other studies have reached similar conclusions. A comprehensive review of literature identified 38 studies conducted between 1980 and 1999 that followed measured changes in functional abilities (adaptive behavior) of individuals leaving institutions. It concluded that this research “demonstrate[s] strongly and consistently that people who move from institutions to community settings have experiences that help them to improve their adaptive behavior skills * * * [and] that community experiences increasingly provide people with environments and interventions that reduce challenging behavior.” K. Charlie Lakin, et al., Behavioral Outcomes of Deinstitutionalization for People with Intellectual Disability: A Review of U.S. Studies Conducted Between 1980 and 1999, 10 Research and Training Center on Community Living, No. 1, Oct. 1999, at 8. It concluded also that “a growing body of research suggests that people [who leave institutions for a community placement] enjoy a better quality of life.” Ibid.
In 2011, the authors of this review updated their research to include studies of post-institutional changes in adaptive behavior through the end of 2010. The authors determined that, “[w]ith regard to adaptive behavior there remains highly consistent evidence of benefits accruing to people with ID/DD [intellectual disabilities/developmental disabilities] from movement from institutions to

- 25 community.” K. Charlie Lakin, et al., Behavioral Outcomes of Deinstitutionalization for People with Intellectual and/or Developmental Disabilities: Third Decennial Review of U.S. Studies, 1977-2010, 21 Research and Training Center on Community Living, No. 2, at 8.
In short, the federal law’s preference for community-based treatment over institutional treatment is well supported by a significant body of research and professional opinion.
II THE CLASS MEETS RULE 23’S REQUIREMENTS It is important that Olmstead cases proceed as class actions. In Olmstead, the Supreme Court said that courts should not “order displacement of persons at the top of the community-based treatment waiting list by individuals lower down who commenced civil actions.” Olmstead v. L.C. by Zimring, 527 U.S. 581, 606 (1999) (plurality). It is difficult to see how a district court can ensure that institutionalized individuals for whom community-based care is appropriate, and who are not opposed to it will all be treated fairly if they are not all before the court. Moreover, when Olmstead cases are brought as class actions, the court can, if necessary, order comprehensive relief. On the other hand, in Olmstead cases brought by individuals, a state may simply provide community-based care for the individual plaintiffs without comprehensively addressing its broader Olmstead

- 26 obligations. Most of Springstead/Solano’s arguments that class certification in this case was improper threaten the availability of Olmstead class actions generally. Each argument lacks merit. A. The Class Is Not Too Indefinite
Appellants’ indefiniteness argument (Br. 30-36) misunderstands the law. They cite Federal Practice and Procedure for the proposition that “the requirement that there be a class will not be deemed satisfied unless the class description is sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member.” See Br. 30-31 (citing Charles Alan Wright, et al., Federal Practice and Procedure § 1760 (3d ed. 2005) (alterations omitted) (FPP)). Appellants seem to think this quotation means that class membership must be precisely determined at the beginning of a case and cannot change thereafter. But that very section of the treatise makes clear that this is not what is required. See FPP § 1760 (explaining that “specific members may be added or dropped during the course of the action” without destroying the viability of the class); ibid. (“[T]he class does not have to be so ascertainable that every potential member can be identified at the commencement of the action.”); see also, e.g., Hagan v. Rogers, 570 F.3d 146, 157-158 (3d Cir. 2009) (the district court abused its discretion in failing to certify a class of prisoners who “were either

- 27 subject to actual skin infections, or were subject to the threat of future injury due to deliberate indifference on the part of prison officials”).
The class certified here clearly meets “the requirement that there be a class”; the question “whether a particular individual is a member” of the class can be determined by simply consulting the Planning List. See FPP § 1760. That some individuals currently in the class might decide to leave the class, and others might join the class, does not make the class certified here impermissibly indefinite.
Appellants also claim the class definition impermissibly defines the class based on the state of mind of its members. Br. 31-32. But the “do not or would not oppose community placement” prong of the class definition has been interpreted in this litigation in a way that is not subjective.
Appellants interpret this language to mean that anyone who “would not oppose community placement” at some point in the future is a current class member, even if he or she currently opposes community placement. That is not how the district court and this Court read the class definition, and it is not a reasonable reading in the context of this case. See JA199-200 (Dist. Ct. Opinion Denying First Intervention Motion); JA443 (Opinion of This Court Affirming Denial of Intervention). Both courts read the class definition, consistent with its clear intent, to exclude those State Center residents who currently oppose community placement, while allowing those residents to join the class in the future

- 28 should they change their minds. The settlement concretizes this interpretation. It requires the State to maintain a Planning List consisting of State Center residents who do not oppose community placement, and to keep that list open for any resident who currently opposes, but may in the future not oppose, community placement. JA470-474. The Planning List accordingly functions as a roll of current class members, defined by the objective requirement of non-opposition to community placement. B. The Class Definition Does Not Contain An “Opt-Out” Provision
Appellants also argue that the “do not or would not oppose community placement” prong of the class definition operates as an impermissible de facto optout provision. Br. 38-40. But non-opposition to community placement is a required component of the claim Olmstead defined. As the Supreme Court explained in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), Rule 23(b)(2) allows class treatment when “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.” 131 S. Ct. at 2557. The Court also explained that Rule 23(b)(2) classes work “when a single injunction or declaratory judgment would provide relief to each member of the class.” Ibid. In other words, class members must share the same claim and benefit from a single remedy. The class the district court certified meets

- 29 these requirement. The settlement does not address individualized claims; it sets up a single remedy – the integration plan – to vindicate all State Center residents who are subjected to unjustified institutionalization. Indeed, class treatment for this claim is ideal, as it forces the State to deal with its Olmstead obligations comprehensively.
Because non-opposition to community placement is a necessary component of an Olmstead claim, the class must include only individuals who do not oppose community placement. Including people in the class who currently oppose community placement would violate Rule 23(b)(2), because they do not have an unjustified institutionalization claim and thus would not benefit from the injunction. The class definition does not contain an opt-out provision; it simply mirrors the substantive law, as it must. C. The Class Meets Rule 23’s Cohesiveness And Commonality Requirements
Appellants next argue that the class definition, particularly the second prong that requires class members to be capable of moving to a community placement with appropriate services and supports, will not “generat[e] ‘common answers’ that will lead to resolution of the case.” Br. 44 (citing Wal-Mart). The point of WalMart’s commonality discussion, however, is that cases should proceed as class actions only when the questions being litigated by the class can productively be resolved all at once. See 131 S. Ct. at 2550-2552. When liability turns on issues

- 30 that require individualized proof for each particular plaintiff, rather than a liability determination that applies to everyone in the class, the commonality requirement is not met.
Here, liability turned on whether Pennsylvania was violating Olmstead by failing to provide community placements for the entire class, and whether it had established a “fundamental alteration” defense. These issues were productively litigated as to the entire class of unjustifiably institutionalized State Center residents. A single legal determination decided liability, including the merits of the “fundamental alteration” defense, for every State Center resident who does not oppose community placement and for whom community-based services are appropriate.
Moreover, the record contradicts the notion that individualized analysis will be required to determine whether appropriate services can actually be provided for a particular individual. It shows that Pennsylvania is currently providing community-based services for more than 50,000 individuals with mental disabilities, including individuals who need the same level of care as State Center residents with the most significant disabilities. JA303 (Plaintiffs’ Statement of Undisputed Facts); JA356 (Defendants’ Statement of Undisputed Facts). The State has also admitted that all State Center residents can be served in the community. JA303.

- 31 D. The Class Meets Rule 23’s Typicality Requirement
Springstead/Solano next argue that the named plaintiffs are not typical of the class, primarily because their disabilities are less severe than those of other State Center residents. Br. 45-47. This argument is meritless.
First, State Center residents who choose to stay are not part of the class. The fact that the named plaintiffs have different interests from those residents is neither surprising nor problematic. Second, severity of disability is not a factor upon which the legal claims that the class pursued turned because, as the State has admitted, all State Center residents, with the appropriate services and supports, could live in the community. JA303; see also In re Schering Plough Corp. ERISA Litigation, 589 F.3d 585, 597-598 (3d Cir. 2009) (the typicality inquiry considers factual differences between the named plaintiffs and the class that are relevant to the legal claims at issue in the case).
Third, the question whether individuals in the “default” group should be part of the class is not relevant to the typicality inquiry. To determine whether the typicality requirement is met, courts determine whether the named plaintiffs’ claims are typical of other members of the class. See Fed. R. Civ. P. 23(a)(3). Once it is determined that individuals in the “default” group are part of the class, their claims are no different from those of other class members. If they are class members, that necessarily means they have the very same right to be free from the

- 32 discrimination inherent in unjustified institutionalization as individuals who affirmatively seek community placement. E. Class Certification Was Procedurally Proper
Finally, relying on In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305 (3d Cir. 2008), Springstead/Solano argue that the class certification order must be vacated because the district court failed to hold a hearing and because the order failed to satisfy the requirements of Rule 23(c)(1)(B). Br. 48. Peroxide does not require a hearing; it requires the court to resolve factual and legal disputes relevant to class certification. Id. at 307. The district court’s order, while undoubtedly more brief than it would have been if class certification had been opposed, met this requirement and the other the requirements of Rule 23(c)(1)(B). See JA36-39.
III THE SETTLEMENT AGREEMENT IS FAIR, ADEQUATE, AND
REASONABLE As appellees point out (Appellees’ Br. 54), the appellants in this case do not directly challenge the district court’s application of the factors relevant to a class action settlement’s fairness this Court set out in Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir. 1975). Because of this, and because appellees’ brief already recounts the district court’s careful weighing of the Girsh factors, we do not address this issue

- 33 in detail.8 We simply point out that the settlement fits Olmstead’s description of what an integration plan should be: “a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings * * * [that includes] a waiting list that move[s] at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated.” Olmstead v. L.C. by Zimring, 527 U.S. 581, 605-606 (1999) (plurality).
8 The United States filed a “Statement Of Support By The United States” in the district court supporting final approval of the settlement agreement in which we addressed the Girsh factors in detail. See JA1067-1084. The United States’ analysis of the Girsh factors’ application to this case is consistent with the district court’s application of those factors (JA5-32), which appellees’ brief recounts (Appellees’ Br. 49-54).

- 34 -
CONCLUSION
This Court should affirm the district court’s approval of the settlement.
Respectfully submitted,
THOMAS E. PEREZ Assistant Attorney General
s/ Nathaniel S. Pollock MARK L. GROSS NATHANIEL S. POLLOCK Attorneys Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403 Washington, DC 20044-4403 (202) 514-0333

CERTIFICATE OF EXEMPTION FROM BAR MEMBERSHIP I certify that, as an attorney representing the United States, I am not
required to be a member of the bar of this Court. See L.A.R. 28.3(d) and Committee Comments.

Dated: April 5, 2012

s/ Nathaniel S. Pollock NATHANIEL S. POLLOCK
Attorney

CERTIFICATE OF COMPLIANCE I certify, pursuant to Federal Rule of Appellate Procedure 32(a), that this BRIEF FOR THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF APPELLEES AND URGING AFFIRMANCE was prepared using Word 2007 and Times New Roman, 14-point font. This brief contains 6994 words of proportionately spaced text. I also certify that the copy of this brief that has been electronically filed is an exact copy of what has been submitted to the Court in hard copy. I further certify that the electronic copy has been scanned with the most recent version of Trend Micro Office Scan Corporate Edition (version 8.0) and is virus-free.

Dated: April 5, 2012

s/ Nathaniel S. Pollock NATHANIEL S. POLLOCK Attorney

CERTIFICATE OF SERVICE
I certify that on April 5, 2012, I electronically filed the foregoing BRIEF
FOR THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF
APPELLEES AND URGING AFFIRMANCE with the Clerk of the Court for the
United States Court of Appeals for the Third Circuit by means of the appellate
CM/ECF system and that ten paper copies identical to the brief filed electronically,
were sent to the Clerk of the Court by first class mail.
I further certify that the following counsel of record are CM/ECF
participants and will be served electronically via the appellate CM/ECF system:
Robert W. Meek Mark J. Murphy Kelly L. Darr Robyn Resnick Disability Rights Network of Pennsylvania 1315 Walnut Street, Suite 500 Philadelphia, PA 19107-4705
Stephen F. Gold 1709 Benjamin Franklin Parkway Philadelphia, PA 19103
Doris M. Leisch Office of General Counsel Pennsylvania Department of Public Welfare 801 Market Street Suite 6092 Philadelphia, PA 19107
Allen C. Warshaw Rhoads & Sinon One South Market Square

P.O. Box 1146, 12th Floor Harrisburg, PA 17108-0000 Benjamin J. Hoffart Sidley Austin 787 Seventh Avenue New York, NY 10019
John E. Riley Vaira & Riley 1600 Market Street Suite 2650 Philadelphia, PA 19103-0000
Carl A. Solano Schnader Harrison Segal & Lewis 1600 Market Street Suite 3600 Philadelphia, PA 19103
Nancy S. Rappaport DLA Piper 1650 Market Street One Liberty Place, Suite 4900 Philadelphia, PA 19103
s/ Nathaniel S. Pollock NATHANIEL S. POLLOCK Attorney

 
 Case: 1:09-cv-1182 As of: 02/23/2016 06:57 PM EST 1 of 34
APPEAL,CASREF,CLOSED,HBG,REOPEN,SETOFF,STANDARD
United States District Court Middle District of Pennsylvania (Harrisburg) CIVIL DOCKET FOR CASE #: 1:09−cv−01182−JEJ

Benjamin et al v. Department of Public Welfare of the Commonwealth of Pennsylvania et al Assigned to: Honorable John E. Jones, III Referred to: Magistrate Judge Susan E. Schwab (Settlement) Case in other court: Third Circuit, 10−01908
Third Circuit, 11−03684
Third Circuit, 11−03685 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 06/22/2009 Date Terminated: 09/25/2014 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Franklin Benjamin by and through his next friend, Andree Yock

represented by Mark J. Murphy Disability Rights Network of PA 1315 Walnut Street Suite 400 Philadelphia, PA 19107−4798 215−238−8070 Fax: 12157723126 Email: mmurphy0210@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert W. Meek Disability Rights Network of Pennsylvania 1315 Walnut Street Suite 400 Philadelphia, PA 19107−4798 215−238−8070 Fax: 12157723126 Email: rmeek@drnpa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen F. Gold Stephen F. Gold 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 267−546−1307 Email: stevegoldada1@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Doris M. Leisch Pennsylvania Department of Human Services Office of General Counsel 3d Floor Health & Welfare Building 7th & Forster Streets Harrisburg, PA 17120 717−783−2800 Email: dleisch@pa.gov ATTORNEY TO BE NOTICED

Dynah E. Haubert Disability Rights Network of PA 1414 N. Cameron Street, 2nd Floor Harrisburg, PA 17103

Case: 1:09-cv-1182 As of: 02/23/2016 06:57 PM EST 2 of 34

717−236−8110 Email: dhaubert@drnpa.org ATTORNEY TO BE NOTICED

Kelly L. Darr Disability Rights Network of Pennsylvania 1315 Walnut Street Suite 500 Philadelphia, PA 19107 215− 238−8070 ext. 221 Fax: 215−772−3126 Email: kdarr@drnpa.org ATTORNEY TO BE NOTICED

Plaintiff Richard Grogg

represented by Mark J. Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert W. Meek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Doris M. Leisch (See above for address) ATTORNEY TO BE NOTICED

Dynah E. Haubert (See above for address) ATTORNEY TO BE NOTICED

Kelly L. Darr (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Frank Edgett by and through their next friend, Joyce McCarthy

represented by Mark J. Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert W. Meek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Doris M. Leisch (See above for address) ATTORNEY TO BE NOTICED

Dynah E. Haubert (See above for address)

Case: 1:09-cv-1182 As of: 02/23/2016 06:57 PM EST 3 of 34

ATTORNEY TO BE NOTICED

Kelly L. Darr (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Wilson Sheppard by and through his next friend, Pamela Zotynia TERMINATED: 07/14/2009

represented by Mark J. Murphy (See above for address) TERMINATED: 07/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert W. Meek (See above for address) TERMINATED: 07/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) TERMINATED: 07/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Sylvia Baldwin by and through her next friend, Shirl Meyers TERMINATED: 12/05/2013

represented by Mark J. Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert W. Meek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Doris M. Leisch (See above for address) ATTORNEY TO BE NOTICED

Dynah E. Haubert (See above for address) ATTORNEY TO BE NOTICED

Kelly L. Darr (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Anthony Beard by and through his next friend, Nicole Turman, on behalf of themselves and all others similarly situated

represented by Mark J. Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert W. Meek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:09-cv-1182 As of: 02/23/2016 06:57 PM EST 4 of 34

Stephen F. Gold (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Doris M. Leisch (See above for address) ATTORNEY TO BE NOTICED
Dynah E. Haubert (See above for address) ATTORNEY TO BE NOTICED
Kelly L. Darr (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Department of Public Welfare of the Commonwealth of Pennsylvania

represented by Allen C. Warshaw Rhoads & Sinon LLP One South Market Square, 12th Floor Harrisburg, PA 17108−1146 717−237−6768 Fax: 717−238−8623 Email: awarshaw@rhoads−sinon.com TERMINATED: 12/31/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Howard Ulan PA Office of General Counsel Health & Welfare Bldg. 3rd Floor West Harrisburg, PA 17120 717.783.0881 Fax: 17177720717 Email: hulan@state.pa.us TERMINATED: 12/31/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel M. Fellin Department of Public Welfare Office of Legal Counsel Room 305, Health and Welfare Building Harrisburg, PA 17105−2675 717−783−2800 Email: dfellin@state.pa.us ATTORNEY TO BE NOTICED
Doris M. Leisch (See above for address) ATTORNEY TO BE NOTICED
Rebecca M Taylor Dept. of Public Welfare Office of General Counsel 625 Forester St. 3rd Fl Harrisburg, PA 17120 717−783−2800

Case: 1:09-cv-1182 As of: 02/23/2016 06:57 PM EST 5 of 34

Email: rebtaylor@pa.gov ATTORNEY TO BE NOTICED

Defendant
Estelle B. Richman in her official capacity as Secretary of Public Welfare of the Commonwealth of Pennsylvania

represented by Allen C. Warshaw (See above for address) TERMINATED: 12/31/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Howard Ulan (See above for address) TERMINATED: 12/31/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Doris M. Leisch (See above for address) ATTORNEY TO BE NOTICED

Defendant Gary D Alexander

represented by Doris M. Leisch (See above for address) ATTORNEY TO BE NOTICED

Objector
Mr. Carl A Solano Schnader Harrison Segal & Lewis LLP 1600 Market Street Suite 3600 Philadelphia, Pa 19041 215−751−2202 Attorney for Diane Solano

represented by Carl A. Solano Schnader Harrison Segal & Lewis LLP 1600 Market St. Suite 3600 Philadelphia, PA 19103 215−751−2202 Email: csolano@schnader.com ATTORNEY TO BE NOTICED

Objector VOR

represented by Lesli C. Esposito DLA Piper US LLP 1650 Market Street 49th Floor Suite 4900 Philadelphia, PA 19103 215−656−2432 Email: lesli.esposito@dlapiper.com ATTORNEY TO BE NOTICED

Nathan P. Heller DLA Piper LLP (US) One Liberty Place Suite 4900 1650 Market Street Philadelphia, PA 19103 215.656.3372 Email: nathan.heller@dlapiper.com ATTORNEY TO BE NOTICED

Amicus UNITED STATES OF AMERICA

represented by Marina Mazor United States Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530 202.305.3347

Case: 1:09-cv-1182 As of: 02/23/2016 06:57 PM EST 6 of 34

Email: marina.mazor@usdoj.gov ATTORNEY TO BE NOTICED

Samantha K. Trepel US Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530 202.514.6255 Email: samantha.trepel@usdoj.gov ATTORNEY TO BE NOTICED

Amicus Harriet Dichter

represented by Allen C. Warshaw (See above for address) TERMINATED: 12/31/2013 ATTORNEY TO BE NOTICED

Doris M. Leisch (See above for address) ATTORNEY TO BE NOTICED

V. Intervenor Maria Meo

represented by John E. Riley Conrad O'Brien, P.C. 200 North High Street Suite 300 West Chester, PA 19380 610−701−9100 Email: jeriley@conradobrien.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Rato Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 (212) 839−5567 Email: mrato@sidley.com TERMINATED: 07/08/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Owen H. Smith Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 (212) 839−5300 Email: osmith@sidley.com TERMINATED: 07/11/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah M. Goldstein Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 (212) 839−5300 TERMINATED: 01/28/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:09-cv-1182 As of: 02/23/2016 06:57 PM EST 7 of 34

William J. Murray Vaira & Riley, P.C. 1600 Market Street Suite 2650 Philadelphia, PA 19103 215−751−2700 Fax: 12157519420 Email: w.murray@vairariley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benjamin J. Hoffart Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 212−839−5300 Email: bhoffart@sidley.com TERMINATED: 10/08/2014 ATTORNEY TO BE NOTICED

James D. Arden Sidley Austin LLP 787 7th Avenue New York, NY 10019 212−839−5300 Fax: 212−839−5599 Email: jarden@sidley.com ATTORNEY TO BE NOTICED

Intervenor Craig Springstead

represented by John E. Riley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Rato (See above for address) TERMINATED: 07/08/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Owen H. Smith (See above for address) TERMINATED: 07/11/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah M. Goldstein (See above for address) TERMINATED: 02/28/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

William J. Murray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benjamin J. Hoffart (See above for address) TERMINATED: 10/08/2014 ATTORNEY TO BE NOTICED

James D. Arden

Case: 1:09-cv-1182 As of: 02/23/2016 06:57 PM EST 8 of 34

(See above for address) ATTORNEY TO BE NOTICED

Intervenor Daniel Bastek

represented by John E. Riley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Rato (See above for address) TERMINATED: 07/08/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Owen H. Smith (See above for address) TERMINATED: 07/11/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah M. Goldstein (See above for address) TERMINATED: 01/28/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

William J. Murray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benjamin J. Hoffart (See above for address) TERMINATED: 10/08/2014 ATTORNEY TO BE NOTICED

James D. Arden (See above for address) ATTORNEY TO BE NOTICED

Intervenor Michael Storm

represented by John E. Riley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Rato (See above for address) TERMINATED: 07/08/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Owen H. Smith (See above for address) TERMINATED: 07/11/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah M. Goldstein (See above for address) TERMINATED: 01/28/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:09-cv-1182 As of: 02/23/2016 06:57 PM EST 9 of 34

Intervenor Beth Ann Lambo
Intervenor Richard Clarke

William J. Murray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin J. Hoffart (See above for address) TERMINATED: 10/08/2014 ATTORNEY TO BE NOTICED
James D. Arden (See above for address) ATTORNEY TO BE NOTICED
represented by John E. Riley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Rato (See above for address) TERMINATED: 07/08/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Owen H. Smith (See above for address) TERMINATED: 07/11/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah M. Goldstein (See above for address) TERMINATED: 01/28/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
William J. Murray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin J. Hoffart (See above for address) TERMINATED: 10/08/2014 ATTORNEY TO BE NOTICED
James D. Arden (See above for address) ATTORNEY TO BE NOTICED
represented by John E. Riley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Rato (See above for address) TERMINATED: 07/08/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:09-cv-1182 As of: 02/23/2016 06:57 PM EST 10 of 34

Intervenor Richard Kohler
Intervenor Wilson Sheppard

Owen H. Smith (See above for address) TERMINATED: 07/11/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah M. Goldstein (See above for address) TERMINATED: 01/28/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
William J. Murray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin J. Hoffart (See above for address) TERMINATED: 10/08/2014 ATTORNEY TO BE NOTICED
represented by John E. Riley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Rato (See above for address) TERMINATED: 07/08/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Owen H. Smith (See above for address) TERMINATED: 07/11/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah M. Goldstein (See above for address) TERMINATED: 01/28/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
William J. Murray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin J. Hoffart (See above for address) TERMINATED: 10/08/2014 ATTORNEY TO BE NOTICED
James D. Arden (See above for address) ATTORNEY TO BE NOTICED
represented by John E. Riley (See above for address)

Case: 1:09-cv-1182 As of: 02/23/2016 06:57 PM EST 11 of 34

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Rato (See above for address) TERMINATED: 07/08/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Owen H. Smith (See above for address) TERMINATED: 07/11/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah M. Goldstein (See above for address) TERMINATED: 01/28/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

William J. Murray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benjamin J. Hoffart (See above for address) TERMINATED: 10/08/2014 ATTORNEY TO BE NOTICED

James D. Arden (See above for address) ATTORNEY TO BE NOTICED

Intervenor Maria Kashatus

represented by John E. Riley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Rato (See above for address) TERMINATED: 07/08/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Owen H. Smith (See above for address) TERMINATED: 07/11/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

William J. Murray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benjamin J. Hoffart (See above for address) TERMINATED: 10/08/2014 ATTORNEY TO BE NOTICED

James D. Arden

Case: 1:09-cv-1182 As of: 02/23/2016 06:57 PM EST 12 of 34
(See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/22/2009 06/23/2009 06/23/2009 06/23/2009 06/26/2009 06/26/2009 07/01/2009 07/02/2009 07/02/2009
07/10/2009
07/10/2009 07/14/2009 08/10/2009
08/10/2009
08/10/2009 08/10/2009 08/26/2009 08/31/2009

# Docket Text
1 COMPLAINT − N/C to cnsl.; no jury trial demanded. (Filing fee $350, Receipt Number 1605595) (Attachments: # 1 Civil Cover Sheet)(jc) (Entered: 06/23/2009)
SUMMONS ISSUED as to Department of Public Welfare of the Commonwealth of Pennsylvania, Estelle B. Richman and provided to Attorney for service on Defendant(s). (jc) (Entered: 06/23/2009)
SPECIAL ADMISSION FORM SENT to Mark J. Murphy. (jc) (Entered: 06/23/2009)
SPECIAL ADMISSION FORM SENT to Stephen F. Gold. (jc) (Entered: 06/23/2009)
2 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Stephen F. Gold on behalf of all plaintiffs Attorney Stephen Gold is seeking special admission. Filing fee $ 25, receipt number 03140000000001610365.. (Gold, Stephen) (Entered: 06/26/2009)
3 SPECIAL ADMISSIONS FORM APPROVED as to Stephen F. Gold (eo, ) (Entered: 06/26/2009)
4 SCHEDULING ORDER: Case Management Conference set for 8/31/2009 (eo, ) (Entered: 07/01/2009)
5 SCHEDULING ORDER: Case Management Conference set for 8/31/2009 11:30 AM before Honorable John E. Jones III. (eo, ) (Entered: 07/02/2009)
6 SUMMONS Returned Executed by Wilson Sheppard, Sylvia Baldwin, Franklin Benjamin, Anthony Beard, Richard Grogg, Frank Edgett. Department of Public Welfare of the Commonwealth of Pennsylvania served on 7/1/2009, answer due 7/21/2009; Estelle B. Richman served on 7/1/2009, answer due 7/21/2009. (Meek, Robert) (Entered: 07/02/2009)
7 MOTION for Extension of Time to to Respond to Complaint by Department of Public Welfare of the Commonwealth of Pennsylvania, Estelle B. Richman. (Attachments: # 1 Certificate of Concurrence, # 2 Proposed Order)(Ulan, Howard) (Entered: 07/10/2009)
8 ORDER granting 7 Motion to Extend Time (eo, ) (Entered: 07/10/2009)
9 AMENDED COMPLAINT against all defendants, filed by Sylvia Baldwin, Franklin Benjamin, Anthony Beard, Richard Grogg, Frank Edgett.(Meek, Robert) (Entered: 07/14/2009)
10 MOTION for Extension of Time to respond to amended complaint by Department of Public Welfare of the Commonwealth of Pennsylvania, Estelle B. Richman. (Attachments: # 1 Certificate of Concurrence, # 2 Proposed Order)(Ulan, Howard) (Entered: 08/10/2009)
11 First MOTION to Continue case management conference by Department of Public Welfare of the Commonwealth of Pennsylvania, Estelle B. Richman. (Attachments: # 1 Certificate of Concurrence, # 2 Proposed Order)(Ulan, Howard) (Entered: 08/10/2009)
12 ORDER granting 10 Motion to Extend Time to 9/28/09 to respond to amended complaint (eo, ) (Entered: 08/10/2009)
13 ORDER granting 11 Motion to Continue CMC. Case Management Conference reset for 9/30/2009 04:00 PM before Honorable John E. Jones III. (eo, ) (Entered: 08/10/2009)
14 NOTICE of Appearance by Allen C. Warshaw on behalf of all defendants (Warshaw, Allen) (Entered: 08/26/2009)
15 Unopposed MOTION to Certify Class by Sylvia Baldwin, Franklin Benjamin, Anthony Beard, Richard Grogg, Frank Edgett. (Attachments: # 1 Brief in Support of Plaintiffs' Unopposed Motion for Class Certification, # 2 Exhibits A & B, # 3 Exhibits

Case: 1:09-cv-1182 As of: 02/23/2016 06:57 PM EST 13 of 34

09/01/2009
09/01/2009 09/02/2009 09/23/2009 09/24/2009 09/24/2009
09/24/2009
09/25/2009 09/30/2009
09/30/2009
09/30/2009 10/15/2009 11/10/2009
11/10/2009 11/12/2009 11/12/2009

C through F, # 4 Exhibits G through J, # 5 Proposed Order)(Meek, Robert) (Entered: 08/31/2009)
DOCKET ANNOTATION: COUNSEL is adsvised that the Brief in Support contained in Document 15 filed 8/31/09 is to be REDOCKETED using the event BRIEF IN SUPPORT located under RESPONSES/REPLIES (BRIEFS). (jc) (Entered: 09/01/2009)
16 BRIEF IN SUPPORT re 15 Unopposed MOTION to Certify Class filed by Sylvia Baldwin, Franklin Benjamin, Anthony Beard, Richard Grogg, Frank Edgett.(Meek, Robert) (Entered: 09/01/2009)
17 (VACATED PER ORDER 6/12/14)ORDER granting 15 Motion to Certify Class. See order for details. (eo, ) Modified on 6/12/2014 (eo). (Entered: 09/02/2009)
18 CASE MANAGEMENT PLAN by Sylvia Baldwin, Franklin Benjamin, Anthony Beard, Department of Public Welfare of the Commonwealth of Pennsylvania, Estelle B. Richman, Richard Grogg, Frank Edgett. (Meek, Robert) (Entered: 09/23/2009)
19 SCHEDULING ORDER: Case Management Conference reset for 9/30/2009 02:30 PM before Honorable John E. Jones III (time change only). (eo, ) (Entered: 09/24/2009)
20 MOTION to Dismiss Amended Complaint by Department of Public Welfare of the Commonwealth of Pennsylvania, Estelle B. Richman. (Attachments: # 1 Certificate of Nonconcurrence, # 2 Proposed Order, # 3 Brief in Support of Motion to Dismiss)(Ulan, Howard) (Entered: 09/24/2009)
DOCKET ANNOTATION: COUNSEL is advised that the Brief contained in Document 20 filed 9/24/09 is to be REDOCKETED as a separate document using the event BRIEF IN SUPPORT located under RESPONSES/REPLES (BRIEFS). (jc) (Entered: 09/24/2009)
21 BRIEF IN SUPPORT re 20 MOTION to Dismiss Amended Complaint filed by Department of Public Welfare of the Commonwealth of Pennsylvania, Estelle B. Richman.(Ulan, Howard) (Entered: 09/25/2009)
22 BRIEF IN OPPOSITION re 20 MOTION to Dismiss Amended Complaint filed by Sylvia Baldwin, Franklin Benjamin, Anthony Beard, Richard Grogg, Frank Edgett. (Attachments: # 1 Attachment A, # 2 Attachment B, # 3 Attachment C, # 4 Attachment D, # 5 Attachment E, # 6 Proposed Order)(Meek, Robert) (Entered: 09/30/2009)
24 ORDER #1− STANDARD CASE MANAGEMENT TRACK Discovery due by 6/15/2010. Jury Selection set for 10/4/2010 09:30AM before Honorable John E. Jones III. Motions due by 7/1/2010. Pretrial Conference set for 9/1/2010 (eo, ) (Entered: 09/30/2009)
25 ORDER #2− Practice Order. (eo, ) (Entered: 09/30/2009)
26 REPLY BRIEF re 20 MOTION to Dismiss Amended Complaint filed by Department of Public Welfare of the Commonwealth of Pennsylvania, Estelle B. Richman.(Ulan, Howard) (Entered: 10/15/2009)
27 Proposed MOTION to Intervene Pursuant to Fed.R.Civ.P.24 by Daniel Bastek, Maria Meo, Craig Springstead, Michael Storm, Beth Ann Lambo, Richard Clarke, Richard Kohler, Wilson Sheppard. (Attachments: # 1 Proposed Order, # 2 Memorandum of Law with Ex.s A and B, # 3 Certificate of Concurrence)(Murray, William) (Entered: 11/10/2009)
28 Proposed Intervenors' ANSWER to 9 Amended Complaint by Maria Meo, Craig Springstead, Daniel Bastek, Michael Storm, Beth Ann Lambo, Richard Clarke, Richard Kohler, Wilson Sheppard.(Murray, William) (Entered: 11/10/2009)
DOCKET ANNOTATION: Counsel is advised that the 'Brief in Support' to Document 27 is to be refiled as a seperate document. This event can be located under 'Responses and Replies'. (aaa ) (Entered: 11/12/2009)
29 BRIEF IN SUPPORT re 27 Proposed MOTION to Intervene Pursuant to Fed.R.Civ.P.24 filed by Maria Meo, Craig Springstead, Daniel Bastek, Michael Storm, Beth Ann Lambo, Richard Clarke, Richard Kohler, Wilson Sheppard.(Murray,

Case: 1:09-cv-1182 As of: 02/23/2016 06:57 PM EST 14 of 34

11/16/2009
11/16/2009
11/16/2009 11/18/2009 11/18/2009 11/23/2009 12/01/2009 12/01/2009
12/01/2009 12/07/2009 01/25/2010 02/24/2010 02/25/2010 03/10/2010 03/30/2010

William) (Entered: 11/12/2009)
30 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by John E. Riley on behalf of Maria Meo, Craig Springstead, Daniel Bastek, Michael Storm, Beth Ann Lambo, Richard Clarke, Richard Kohler, Wilson Sheppard Attorney Michael Rato is seeking special admission. Filing fee $ 25, receipt number 03140000000001723841., filed by on behalf of Maria Meo, Craig Springstead, Daniel Bastek, Michael Storm, Beth Ann Lambo, Richard Clarke, Richard Kohler, Wilson Sheppard.(Riley, John) (Entered: 11/16/2009)
31 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by John E. Riley on behalf of Maria Meo, Craig Springstead, Daniel Bastek, Michael Storm, Beth Ann Lambo, Richard Clarke, Richard Kohler, Wilson Sheppard Attorney Sarah Goldstein is seeking special admission. Filing fee $ 25, receipt number 03140000000001723916., filed by on behalf of Maria Meo, Craig Springstead, Daniel Bastek, Michael Storm, Beth Ann Lambo, Richard Clarke, Richard Kohler, Wilson Sheppard.(Riley, John) (Entered: 11/16/2009)
DOCKET ANNOTATION: New York State Bar Record verified for Michael Rato and Sarah M. Goldstein. PA State Bar Record verified for John E. Riley. (jc) (Entered: 11/16/2009)
32 SPECIAL ADMISSIONS FORM APPROVED as to Michael Rato (eo, ) (Entered: 11/18/2009)
33 SPECIAL ADMISSIONS FORM APPROVED as to Sarah Goldstein (eo, ) (Entered: 11/18/2009)
34 BRIEF IN OPPOSITION re 27 Proposed MOTION to Intervene Pursuant to Fed.R.Civ.P.24 filed by Sylvia Baldwin, Franklin Benjamin, Anthony Beard, Richard Grogg, Frank Edgett. (Attachments: # 1 Attachment A, # 2 Attachment B, # 3 Attachment C, # 4 Proposed Order)(Meek, Robert) (Entered: 11/23/2009)
DOCKET ANNOTATION: Doc. #35 deleted. Counsel instructed to refile documents with signatures or s/. (eo, ) (Entered: 12/01/2009)
35 STIPULATION AND ORDER by Wilson Sheppard, Sylvia Baldwin, Franklin Benjamin, Anthony Beard, Department of Public Welfare of the Commonwealth of Pennsylvania, Estelle B. Richman, Richard Grogg, Frank Edgett, Daniel Bastek, filed by Wilson Sheppard, Sylvia Baldwin, Franklin Benjamin, Anthony Beard, Department of Public Welfare of the Commonwealth of Pennsylvania, Estelle B. Richman, Richard Grogg, Frank Edgett, Daniel Bastek.(Warshaw, Allen) (Entered: 12/01/2009)
36 ORDER approving stipulation. (eo, ) (Entered: 12/01/2009)
37 REPLY BRIEF re 27 Proposed MOTION to Intervene Pursuant to Fed.R.Civ.P.24 filed by Maria Meo, Craig Springstead, Daniel Bastek, Michael Storm, Beth Ann Lambo, Richard Clarke, Richard Kohler, Wilson Sheppard.(Murray, William) (Entered: 12/07/2009)
38 ORDER denying 20 Motion to Dismiss the Amended Complaint. See order for details. (eo, ) (Entered: 01/25/2010)
39 ANSWER to 9 Amended Complaint by Department of Public Welfare of the Commonwealth of Pennsylvania, Estelle B. Richman.(Warshaw, Allen) (Entered: 02/24/2010)
40 Letter from Proposed Intervenors concerning intervention motion and status of discovery & settlement discussions. (Rato, Michael) (Entered: 02/25/2010)
41 MEMORANDUM AND ORDER: The Applicant's Motion to Intervene 27 has been DENIED. Signed by Honorable John E. Jones, III on 3/10/10. (pw, ) (Entered: 03/10/2010)
42 NOTICE OF APPEAL in NON−PRISONER Case as to 41 Memorandum & Order by Maria Meo, Craig Springstead, Daniel Bastek, Michael Storm, Beth Ann Lambo, Richard Clarke, Richard Kohler, Wilson Sheppard. Filing Fee and Docket Fee PAID. Filing fee $ 455, receipt number 03140000000001838212. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list

Case: 1:09-cv-1182 As of: 02/23/2016 06:57 PM EST 15 of 34

03/31/2010 04/05/2010 04/05/2010 04/06/2010 06/11/2010 06/11/2010 06/23/2010
06/23/2010 06/24/2010 06/24/2010 06/29/2010 06/30/2010

in lieu of the record and/or the certified copy of the docket entries. (Attachments: # 1 Exhibit(s) March 10, 2010 Memorandum & Order)(Rato, Michael) (Entered: 03/30/2010)
43 USCA Case Number 10−1908 for 42 Notice of Appeal,, filed by Michael Storm, Daniel Bastek, Craig Springstead, Wilson Sheppard, Maria Meo, Richard Clarke, Richard Kohler, Beth Ann Lambo. USCA Case Manager Tina Koperna (DOCUMENT IS RESTRICTED AND CAN ONLY BE VIEWED BY COURT STAFF). (Koperna, Tina) (Entered: 03/31/2010)
44 AFFIDAVIT of Service for Notice of Appeal served on Counsel for Plaintiffs and Defendant on March 30, 2010, filed by Maria Meo, Craig Springstead, Daniel Bastek, Michael Storm, Beth Ann Lambo, Richard Clarke, Richard Kohler, Wilson Sheppard, Maria Kashatus. (Rato, Michael) (Entered: 04/05/2010)
45 TRANSCRIPT PURCHASE ORDER REQUEST by Maria Meo, Craig Springstead, Daniel Bastek, Michael Storm, Beth Ann Lambo, Richard Clarke, Richard Kohler, Wilson Sheppard, Maria Kashatus (Rato, Michael) (Entered: 04/05/2010)
SUPPLEMENTAL RECORD on Appeal transmitted to US Court of Appeals re 45 TPO (Transcript Purchase Order Request)Filed, 44 Affidavit of Service,. Documents and Docket Sheet available through ECF. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. (jc) (Entered: 04/06/2010)
46 MOTION to Exceed Page Limitation for Brief in Support of Plaintiffs' Motion for Summary Judgment by Sylvia Baldwin, Franklin Benjamin, Anthony Beard, Richard Grogg, Frank Edgett. (Attachments: # 1 Certificate of Concurrence, # 2 Proposed Order)(Meek, Robert) (Entered: 06/11/2010)
47 ORDER granting 46 Motion for Leave to File Excess Pages. Plaintiffs have leave to file an overlength brief in support of their Motion for Summary Judgment that does not exceed 10,000 words. Signed by Honorable John E. Jones, III on 6/11/10 (pw, ) (Entered: 06/11/2010)
48 MOTION for Summary Judgment by Sylvia Baldwin, Franklin Benjamin, Anthony Beard, Richard Grogg, Frank Edgett. (Attachments: # 1 Table of Exhibits in Support of Plaintiffs' Motion for Summary Judgment, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Certificate of Nonconcurrence)(Meek, Robert) (Entered: 06/23/2010)
49 BRIEF IN SUPPORT re 48 MOTION for Summary Judgment filed by Sylvia Baldwin, Franklin Benjamin, Anthony Beard, Richard Grogg, Frank Edgett. (Attachments: # 1 Proposed Order, # 2 Statement of Undisputed Facts in Support of Plaintiffs' Motion for Summary Judgment)(Meek, Robert) (Entered: 06/23/2010)
DOCKET ANNOTATION: COUNSEL is advised that the Statement of Undisputed Facts contained in Document 49 filed 6/23/10 are to be REDOCKETED using the event STATEMENT OF FACTS located under OTHER ANSWERS/RESPONSE TO HABEAS PETITION. (jc ) (Entered: 06/24/2010)
50 STATEMENT OF FACTS re 48 MOTION for Summary Judgment, 49 Brief in Support, by Sylvia Baldwin, Franklin Benjamin, Anthony Beard, Richard Grogg, Frank Edgett. (Meek, Robert) (Entered: 06/24/2010)
51 MOTION for Summary Judgment by Estelle B. Richman. (Attachments: # 1 Proposed Order, # 2 Defendants' Statement of Undisputed Facts in Support of Defendants' Motion for Summary Judgment, # 3 Exhibit(s) Exh. 1, # 4 Exhibit(s) Exh. 2, # 5 Exhibit(s) Exh. 3, # 6 Exhibit(s) Exh. 4, # 7 Memorandum of Law in Support of Defendants' Motion for Summary Judgment)(Warshaw, Allen) (Entered: 06/29/2010)
DOCKET ANNOTATION: Counsel is advised that they are to refile their 'Statement of Facts' and their 'Brief in Support' to Document 51 as seperate events. These events can be located under Responses and Replies. (aaa ) (Entered: 06/30/2010)

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06/30/2010 06/30/2010 07/01/2010 07/06/2010 07/06/2010 07/06/2010 07/06/2010 07/06/2010 07/06/2010 07/07/2010 07/07/2010 07/07/2010 07/08/2010 07/08/2010 07/09/2010 07/12/2010
07/14/2010

52 STATEMENT OF FACTS filed by Estelle B. Richman.(Warshaw, Allen) (Entered: 06/30/2010)
53 BRIEF IN SUPPORT re 51 MOTION for Summary Judgment filed by Estelle B. Richman.(Warshaw, Allen) (Entered: 06/30/2010)
54 MOTION for Order by Estelle B. Richman. (Attachments: # 1 Motion for Enlargement)(Warshaw, Allen) (Entered: 07/01/2010)
56 ORDER granting 54 Motion for Extension until 7/12/10 to File Response (eo, ) (Entered: 07/06/2010)
DOCKET ANNOTATION: COUNSEL is advised that Document 55 filed 7/6/10 is to be REDOCKETED. Document is a statement of undisputed facts NOT a motion to amend. (jc) (Entered: 07/06/2010)
57 STATEMENT OF FACTS Undisputed Facts in Support of Defendants' Motion for Summary Judgment filed by Department of Public Welfare of the Commonwealth of Pennsylvania, Estelle B. Richman.(Warshaw, Allen) (Entered: 07/06/2010)
58 EXHIBIT #5 filed by Department of Public Welfare of the Commonwealth of Pennsylvania re 51 MOTION for Summary Judgment. (pjr) (Entered: 07/06/2010)
DOCKET ANNOTATION: At the request of counsel, doc. 55 deleted. Document has been refiled as a Statement of Undisputed Facts. (pjr) (Entered: 07/06/2010)
59 MAIL RETURNED (Doc. 37) as "Refused". Mail sent to Pasqual J. Depena−Rondon. (pjr) (Entered: 07/06/2010)
60 MOTION for Leave to File A Limited Brief As Amicus Curiae by UNITED STATES OF AMERICA. (Attachments: # 1 Proposed Order, # 2 Certificate of Concurrence)(Trepel, Samantha) (Entered: 07/07/2010)
61 BRIEF IN SUPPORT re 60 MOTION for Leave to File A Limited Brief As Amicus Curiae filed by UNITED STATES OF AMERICA.(Trepel, Samantha) (Entered: 07/07/2010)
62 BRIEF IN SUPPORT re 48 MOTION for Summary Judgment, 60 MOTION for Leave to File A Limited Brief As Amicus Curiae filed by UNITED STATES OF AMERICA.(Trepel, Samantha) (Entered: 07/07/2010)
63 MOTION to Substitute Attorney Michael Rato by Maria Meo, Craig Springstead, Daniel Bastek, Michael Storm, Beth Ann Lambo, Richard Clarke, Richard Kohler, Wilson Sheppard, Maria Kashatus.(Rato, Michael) (Entered: 07/08/2010)
SPECIAL ADMISSION FORM AND ECF REGISTRATION FORM SENT to Owen H. Smith. (jc) (Entered: 07/08/2010)
64 ORDER granting 60 Motion for Leave to File.Signed by Honorable John E. Jones, III on 07/09/2010 (pjr) (Entered: 07/09/2010)
65 BRIEF IN OPPOSITION re 51 MOTION for Summary Judgment filed by Sylvia Baldwin, Franklin Benjamin, Anthony Beard, Richard Grogg, Frank Edgett. (Attachments: # 1 Plaintiffs' Response to Defendants' Statement of Undisputed Facts, # 2 Table of Exhibits, # 3 Exhibit 27, # 4 Exhibit 28, # 5 Exhibit 29, # 6 Exhibit 30, # 7 Exhibit 31, # 8 Exhibit 32, # 9 Exhibit 33, # 10 Exhibit 34, # 11 Exhibit 35, # 12 Exhibit 36, # 13 Exhibit 37, # 14 Exhibit 38, # 15 Exhibit 39, # 16 Exhibit 40, # 17 Exhibit 41, # 18 Exhibit 42, # 19 Proposed Order)(Meek, Robert) (Entered: 07/12/2010)
66 BRIEF IN OPPOSITION re 48 MOTION for Summary Judgment of Plaintiffs' filed by Harriet Dichter, Department of Public Welfare of the Commonwealth of Pennsylvania. (Attachments: # 1 Exhibit(s) Defendants' Response to Plaintiffs' Statement of Uncontested Facts, # 2 Exhibit(s) Defendants' Statement of Uncontested Facts in Opposition to Plaintiffs' Motion for Summary Judgment, # 3 Exhibit(s) Exhibit A to Defendants' Brief in Opposition to Plaintiffs' Motion for Summary Judgment, # 4 Exhibit(s) Exhibit B to Defendants' Brief in Opposition to Plaintiffs' Motion for Summary Judgment, # 5 Exhibit(s) Exhibit C to Defendants' Brief in Opposition to Plaintiffs' Motion for Summary Judgment, # 6 Exhibit(s) Exhibit D to

Case: 1:09-cv-1182 As of: 02/23/2016 06:57 PM EST 17 of 34

07/16/2010 07/26/2010
07/26/2010 07/26/2010 08/04/2010 08/04/2010 10/05/2010 10/05/2010 10/06/2010 10/08/2010 10/12/2010 10/12/2010 10/12/2010 10/13/2010
10/13/2010

Defendants' Brief in Opposition to Plaintiffs' Motion for Summary Judgment, # 7 Exhibit(s) Exhibit E to Defendants' Brief in Opposition to Plaintiffs' Motion for Summary Judgment, # 8 Exhibit(s) Exhibit F to Defendants' Brief in Opposition to Plaintiffs' Motion for Summary Judgment, # 9 Exhibit(s) Exhibit G to Defendants' Brief in Opposition to Plaintiffs' Motion for Summary Judgment, # 10 Exhibit(s) Exhibit H to Defendants' Brief in Opposition to Plaintiffs' Motion for Summary Judgment, # 11 Exhibit(s) Exhibit I to Defendants' Brief in Opposition to Plaintiffs' Motion for Summary Judgment, # 12 Exhibit(s) Exhibit J to Defendants' Brief in Opposition to Plaintiffs' Motion for Summary Judgment)(Warshaw, Allen) (Entered: 07/14/2010)
67 Unopposed MOTION to Continue pre−trial conference by Department of Public Welfare of the Commonwealth of Pennsylvania, Harriet Dichter. (Attachments: # 1 Exhibit(s) Proposed order)(Warshaw, Allen) (Entered: 07/16/2010)
68 REPLY BRIEF re 48 MOTION for Summary Judgment filed by Sylvia Baldwin, Franklin Benjamin, Anthony Beard, Richard Grogg, Frank Edgett. (Attachments: # 1 Table of Exhibits, # 2 Exhibit 43, # 3 Exhibit 44, # 4 Exhibit 45, # 5 Exhibit 46, # 6 Exhibit 47, # 7 Exhibit 48, # 8 Exhibit 49, # 9 Exhibit 50, # 10 Exhibit 51)(Meek, Robert) (Entered: 07/26/2010)
69 ANSWER TO STATEMENT OF FACTS re 68 Reply Brief, 66 Brief in Opposition,,,,,, filed by Sylvia Baldwin, Franklin Benjamin, Anthony Beard, Richard Grogg, Frank Edgett.(Meek, Robert) (Entered: 07/26/2010)
70 REPLY BRIEF re 51 MOTION for Summary Judgment filed by Department of Public Welfare of the Commonwealth of Pennsylvania, Harriet Dichter.(Warshaw, Allen) (Entered: 07/26/2010)
71 SCHEDULING ORDER: Pretrial Conference set for 9/1/2010 01:30 PM in Harrisburg before Honorable John E. Jones III. (eo, ) (Entered: 08/04/2010)
72 ORDER − Case is sticken from the October 2010 trial term. PTC on 9/1/10 and JS on 10/4/10 are cancelled. Case will be placed on a term following a ruling on the dispositive motion. (eo, ) (Entered: 08/04/2010)
73 ORDER− By 10/8/10 stipulation as to willingness to mediate shall be filed (eo, ) (Entered: 10/05/2010)
74 STIPULATION re mediation by Department of Public Welfare of the Commonwealth of Pennsylvania. (Warshaw, Allen) (Entered: 10/05/2010)
75 ORDER REFERRING CASE for Settlement to Magistrate Judge Martin C. Carlson. (eo, ) (Entered: 10/06/2010)
76 MOTION Participate in Mediation re 74 Stipulation by UNITED STATES OF AMERICA. (Attachments: # 1 Proposed Order, # 2 Certificate of Concurrence and Non−Concurrence)(Mazor, Marina) (Entered: 10/08/2010)
DOCKET ANNOTATION: COUNSEL is advised that Document 77 filed 10/8/10 is to be REDOCKETED using the event BRIEF IN SUPPORT located under RESPONSES/REPLIES (BRIEFS). (jc) (Entered: 10/12/2010)
DOCKET ANNOTATION: DOC # 77 deleted due to filing error; Counsel to re−file corrected document. (kn, ) (Entered: 10/12/2010)
77 BRIEF IN SUPPORT re 76 MOTION Participate in Mediation re 74 Stipulation filed by UNITED STATES OF AMERICA.(Mazor, Marina) (Entered: 10/12/2010)
78 ORDER − Given that there is no consensus among the parties regarding the value of the participation of the United States in settlement discussions, and taking into account the fact that the United States has provided a thorough and cogent expression of its views in its prior amicus filings, we will decline this request at the present time. Signed by Magistrate Judge Martin C. Carlson on October 13, 2010. (kjn ) (Entered: 10/13/2010)
79 SCHEDULING ORDER − Settlement Conference set for 11/19/2010 at 1:00 PM in Harrisburg before Magistrate Judge Martin C. Carlson. Confidential settlement memorandums due by 11/12/2010. SEE ORDER FOR COMPLETE DETAILS.

Case: 1:09-cv-1182 As of: 02/23/2016 06:57 PM EST 18 of 34

10/19/2010
10/19/2010
10/21/2010 11/19/2010 11/22/2010
12/03/2010 12/16/2010 01/27/2011
02/04/2011 02/04/2011 02/10/2011 02/23/2011 03/17/2011 04/05/2011

Signed by Magistrate Judge Martin C. Carlson on October 13, 2010. (kjn ) (Entered: 10/13/2010)
80 MOTION for Leave to Participate in Mediation and Memorandum in Support of Springstead Intervenors' Motion for Leave to Participate in Mediation by Maria Meo, Craig Springstead, Daniel Bastek, Michael Storm, Beth Ann Lambo, Richard Clarke, Richard Kohler, Wilson Sheppard, Maria Kashatus. (Attachments: # 1 Certificate of Nonconcurrence Certificate of Concurrence and Non−Concurrence, # 2 Proposed Order Order Granting Springstead Intervenors' Motion for Leave to Participate in Mediation)(Riley, John) (Entered: 10/19/2010)
81 BRIEF IN SUPPORT of Springstead Intervenors' re 80 MOTION for Leave to Participate in Mediation and Memorandum in Support of Springstead Intervenors' Motion for Leave to Participate in Mediation filed by Maria Meo, Craig Springstead, Daniel Bastek, Michael Storm, Beth Ann Lambo, Richard Clarke, Richard Kohler, Wilson Sheppard, Maria Kashatus.(Riley, John) (Entered: 10/19/2010)
82 ORDER denying 80 Motion to Participate in settlement discussions. Signed by Magistrate Judge Martin C. Carlson on October 21, 2010. (kjn ) (Entered: 10/21/2010)
83 MOTION to Stay Formal Proceedings by Daniel Bastek, Richard Clarke, Maria Kashatus, Richard Kohler, Beth Ann Lambo, Maria Meo, Wilson Sheppard, Craig Springstead, Michael Storm.(Riley, John) (Entered: 11/19/2010)
85 ORDER − IT IS HEREBY ORDERED THAT the parties confer and consult, and notify the Court in writing on or before December 7, 2010, whether further settlement discussions would be helpful in resolving this matter. Status Report due by 12/7/2010. Signed by Magistrate Judge Martin C. Carlson on November 22, 2010. (kjn ) (Entered: 11/22/2010)
86 BRIEF IN OPPOSITION re 83 MOTION to Stay Formal Proceedings filed by Sylvia Baldwin, Anthony Beard, Franklin Benjamin, Frank Edgett, Richard Grogg. (Attachments: # 1 Proposed Order)(Meek, Robert) (Entered: 12/03/2010)
87 ORDER denying 83 Motion to Stay (eo, ) (Entered: 12/16/2010)
88 ORDER granting 48 Motion for Summary Judgment. Denying 51 Motion for Summary Judgment. Telephone conference scheduled for 1/31/11 at 10:00 a.m. Plaintiff's counsel shall initiate the call to chambers (717)221−3986. All counsel shall be prepared to proceed at the time of said call. See order for details. (eo, ) (Entered: 01/27/2011)
90 CERTIFICATE of by Department of Public Welfare of the Commonwealth of Pennsylvania. (Warshaw, Allen) (Entered: 02/04/2011)
91 ORDER REFERRING CASE for Settlement to Judge Magistrate Judge Martin C. Carlson. (eo, ) (Entered: 02/04/2011)
92 SCHEDULING ORDER: A Settlement Conference is set for 2/23/2011 at 10:30 AM in Harrisburg before Magistrate Judge Martin C. Carlson. SEE ORDER FOR COMPLETE DETAILS. Signed by Magistrate Judge Martin C. Carlson on February 10, 2011. (kjn ) (Entered: 02/10/2011)
94 ORDER − A Supplemental Settlement Conference is set for 3/17/2011 at 10:00 AM in Harrisburg before Magistrate Judge Martin C. Carlson. SEE ORDER FOR COMPLETE DETIALS. Signed by Magistrate Judge Martin C. Carlson on February 23, 2011. (kjn) (Entered: 02/23/2011)
96 SCHEDULING ORDER: A Supplemental Settlement Conference is set for 4/7/2011 at1:00 PM in Harrisburg before Magistrate Judge Martin C. Carlson. Signed by Magistrate Judge Martin C. Carlson on March 17, 2011. (kjn ) (Entered: 03/17/2011)
97 JUDGMENT of USCA AFFIRMED (certified copy) as to 42 Notice of Appeal filed by Michael Storm, Daniel Bastek, Craig Springstead, Wilson Sheppard, Maria Meo, Richard Clarke, Richard Kohler, Beth Ann Lambo. (Koperna, Tina) (Entered: 04/05/2011)

Case: 1:09-cv-1182 As of: 02/23/2016 06:57 PM EST 19 of 34

04/05/2011
04/06/2011
04/19/2011 04/27/2011
04/29/2011
05/04/2011 05/24/2011 05/26/2011
05/27/2011 05/27/2011 07/05/2011 07/07/2011
07/07/2011 07/08/2011 07/08/2011 07/11/2011 07/11/2011

98 AMENDED JUDGMENT of USCA (certified copy) as to 42 Notice of Appeal,, filed by Michael Storm, Daniel Bastek, Craig Springstead, Wilson Sheppard, Maria Meo, Richard Clarke, Richard Kohler, Beth Ann Lambo. (Koperna, Tina) (Entered: 04/05/2011)
99 ORDER − IT IS HEREBY ORDERED THAT the parties will continue to confer and consult regarding the matters discussed at this conference, and a supplemental settlement conference previously scheduled for April 7, 2011, is RESCHEDULED and shall be conducted in the above−captioned action on: April 20, 2011 at 2:00 p.m., in the undersigneds chambers. Signed by Magistrate Judge Martin C. Carlson on April 6, 2011. (kjn ) (Entered: 04/06/2011)
100 ORDER − The Settlement Conference is RESCHEDULED to 5/2/2011 AT 2:00 PM in Harrisburg before Magistrate Judge Martin C. Carlson. Signed by Magistrate Judge Martin C. Carlson on April 19, 2011. (kjn ) (Entered: 04/19/2011)
101 MANDATE of USCA as to 42 Notice of Appeal,, filed by Michael Storm, Daniel Bastek, Craig Springstead, Wilson Sheppard, Maria Meo, Richard Clarke, Richard Kohler, Beth Ann Lambo (Attachments: # 1 Opinion, # 2 Clerk's Letter to District Court)(King, James) (Entered: 04/27/2011)
102 ORDER − AND NOW, this 29th day of April, 2011, the Court having been notified that the parties have reached a settlement in the above−captioned action, IT IS HEREBY ORDERED THAT the settlement conference scheduled to take place with the Court on May 2, 2011 at 2:00 p.m. is CANCELLED. Signed by Magistrate Judge Martin C. Carlson on April 29, 2011. (kjn ) (Entered: 04/29/2011)
103 Letter from Robert W. Meek re Status of Settlement Negotiations. (Meek, Robert) (Entered: 05/04/2011)
104 NOTICE of Appearance by Doris M. Leisch on behalf of All Defendants (Leisch, Doris) (Entered: 05/24/2011)
105 Unopposed MOTION to Approve Consent Judgment by Sylvia Baldwin, Anthony Beard, Franklin Benjamin, Frank Edgett, Richard Grogg. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Certificate of Concurrence, # 5 Proposed Order)(Meek, Robert) (Entered: 05/26/2011)
106 ORDER granting 105 Motion to Approve Consent Judgment. Hearing set for 8/22/11 at 9:00 a.m., Ct #2, Harrisburg, PA. See order for all deadlines. (eo, ) (Entered: 05/27/2011)
Set/Reset Hearings: In Court Hearing set for 8/22/2011 09:00 AM in Harrisburg − Courtroom 2 before Honorable John E. Jones III. (eo, ) (Entered: 05/27/2011)
107 LETTER − from Mr. & Mrs. Drago re: Notice of Class Action − Proposed Settlement & Hearing. (jc) (Entered: 07/05/2011)
108 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by William J. Murray on behalf of Daniel Bastek, Richard Clarke, Maria Kashatus, Richard Kohler, Beth Ann Lambo, Maria Meo, Wilson Sheppard, Craig Springstead, Michael Storm Attorney Benjamin J. Hoffart is seeking special admission. Filing fee $ 50, receipt number 0314−2227099.. (Murray, William) (Entered: 07/07/2011)
110 LETTER − from W J. Parmley to Court of receipt of Notice of Class Action − Proposed Settlement Hearing. (jc) (Entered: 07/08/2011)
109 RESPONSE by Sylvia Baldwin, Anthony Beard, Franklin Benjamin, Frank Edgett, Richard Grogg to 108 Petition for Special Admission − Pro Hac Vice,. (Attachments: # 1 Proposed Order)(Meek, Robert) (Entered: 07/08/2011)
DOCKET ANNOTATION: NY State Bar Record verified for Benjamin J. Hoffart. PA State Bar Record verified for William J. Murray, Jr. (jc) (Entered: 07/08/2011)
111 SPECIAL ADMISSIONS FORM APPROVED as to Benjamin J. Hoffart (eo, ) (Entered: 07/11/2011)
112 MOTION to Substitute Attorney by Craig Springstead.(Murray, William) (Entered: 07/11/2011)

Case: 1:09-cv-1182 As of: 02/23/2016 06:57 PM EST 20 of 34

07/11/2011 07/13/2011 07/14/2011
07/15/2011 07/15/2011 07/19/2011 07/19/2011 07/20/2011 07/20/2011 07/20/2011 07/21/2011 07/21/2011 07/22/2011 07/22/2011 07/22/2011 07/22/2011 07/22/2011 07/22/2011 07/25/2011 07/25/2011 07/25/2011 07/25/2011
07/25/2011 07/25/2011

255 LETTER − from William Shotzberger re: Notice of Class Action − Proposed Settlement and Hearing. (jc) (Entered: 08/03/2011)
113 LETTER − from Jemille Houston re: Notice of Class Action − Proposed Settlement & Hearing. (jc) (Entered: 07/13/2011)
114 LETTER − from Karen K. Blew re: Notice of Class Action − Proposed Settlement & Hearing. (jc) (Additional attachment(s) added on 7/14/2011: # 1 Letter) (jc, ). (Entered: 07/14/2011)
115 LETTER − from Bob Sheetz re: Notice of Class Action − Proposed Settlement and Hearing. (jc) (Entered: 07/15/2011)
116 LETTER − from Marion Kelly o/b/o Patrick Garramone re: Notice of Class Action − Proposed Settlement & Hearing. (jc) (Entered: 07/15/2011)
117 Letter from Helen Reider filed. (pjr) (Entered: 07/19/2011)
118 Letter from Roy Reider filed. (pjr) (Entered: 07/19/2011)
119 LETTER − from Rev. AM Gordon and Minerva Gordon re: Notice of Class Action − Proposed Settlement and Hearing. (jc) (Entered: 07/20/2011)
120 LETTER − from Marion and Carment Attanasio, Jr. re: Notice of Class Action − Proposed Settlement and Hearing. (jc) (Entered: 07/20/2011)
121 LETTER − from Francis J. Beston re: Notice of Class Action − Proposed Settlement and Hearing. (jc) (Entered: 07/20/2011)
122 LETTER − from Cecelia Hopkins re: Notice of Class Action − Proposed Settlement and Hearing. (jc) (Entered: 07/21/2011)
123 LETTER − from Alfred R. Sheppard re: Notice of Class Action − Proposed Settlement Hearing. (jc) (Entered: 07/21/2011)
124 LETTER − from Norma Ferguson re: Notice of Class Action − Proposed Settlement Hearing. (aaa ) (Entered: 07/22/2011)
125 LETTER − from Cheryl O. Brown re: Notice of Class Action − Proposed Settlement Hearing. (aaa ) (Entered: 07/22/2011)
126 LETTER − from Mary Gough re: Notice of Class Action − Proposed Settlement Hearing. (aaa ) (Entered: 07/22/2011)
127 LETTER − from Arthur & Joyce Ciullo re: Notice of Class Action − Proposed Settlement Hearing. (aaa ) (Entered: 07/22/2011)
128 LETTER − from Doris Kalan re: Notice of Class Action − Proposed Settlement Hearing. (aaa ) (Entered: 07/22/2011)
129 LETTER − from Nancy Slick re: Notice of Class Action − Proposed Settlement Hearing. (aaa ) (Entered: 07/22/2011)
130 LETTER − from Elizabeth Pugh re: Notice of Class Action − Proposed Settlement Hearing. (aaa ) (Entered: 07/25/2011)
131 LETTER − from Catherine T. Dymacek re: Notice of Class Action − Proposed Settlement Hearing. (aaa ) (Entered: 07/25/2011)
132 LETTER − from Lawrence County Association for Retarted Citizens re: Notice of Class Action − Proposed Settlement Hearing. (aaa ) (Entered: 07/25/2011)
133 LETTER − from Executive Director of Lawrence County Association for Retarted Citizens re: Notice of Class Action − Proposed Settlement Hearing. (aaa ) (Entered: 07/25/2011)
134 LETTER − from Joseph Lambo re: Notice of Class Action − Proposed Settlement Hearing. (aaa) (Entered: 07/25/2011)
135 LETTER − from James B. Lambo re: Notice of Class Action − Proposed Settlement Hearing. (aaa ) (Entered: 07/25/2011)

Case: 1:09-cv-1182 As of: 02/23/2016 06:57 PM EST 21 of 34

07/26/2011 07/26/2011 07/26/2011 07/26/2011 07/26/2011 07/26/2011 07/26/2011 07/26/2011 07/26/2011 07/26/2011 07/26/2011 07/26/2011 07/26/2011 07/26/2011 07/26/2011 07/26/2011 07/26/2011 07/26/2011 07/26/2011 07/26/2011 07/26/2011 07/26/2011 07/27/2011 07/27/2011

136 LETTER − from Polly Spare re: Notice of Class Action − Proposed Settlement and Hearing. (jc) (Entered: 07/26/2011)
137 LETTER − from Florence Plenn re: Notice of Class Action − Proposed Settlement and Hearing. (jc) (Entered: 07/26/2011)
138 LETTER − from Dale & Darcene Utt re: Notice of Class Action − Proposed Settlement and Hearing. (jc) (Entered: 07/26/2011)
139 LETTER − from John Bastek re: Notice of Class Action − Proposed Settlement and Hearing.(jc) (Entered: 07/26/2011)
140 LETTER − Grace Meo re: Notice of Class Action − Proposed Settlement and Hearing. (jc) (Entered: 07/26/2011)
141 LETTER − from Amelia & Jerry Hake re: Notice of Class Action − Proposed Settlement and Hearing. (jc) (Entered: 07/26/2011)
142 LETTER − from Kay Wagner re: Notice of Class Action − Proposed Settlement and Hearing. (jc) (Entered: 07/26/2011)
143 LETTER − from Gary & Mary Wills re: Notice of Class Action − Proposed Settlement and Hearing. (jc) (Entered: 07/26/2011)
144 LETTER − from Kimberly Gordon re: Notice of Class Action − Proposed Settlement and Hearing. (jc) (Entered: 07/26/2011)
145 LETTER − from Dixie Henry re: Notice of Class Action − Porposed Settlement and Hearing. (jc) (Entered: 07/26/2011)
146 LETTER from Clara Palmer re: Notice of Class Action − Proposed Settlement and Hearing. (jc) (Entered: 07/26/2011)
147 LETTER − from Mary Kashatus re: Notice of Class Action − Proposed Settlement and Hearing. (jc) (Entered: 07/26/2011)
148 LETTER − from John Hoops re: Notice of Class Action − Proposed Settlement and Hearing. (jc) (Entered: 07/26/2011)
149 LETTER − from Suzanne Perry re: Notice of Class Action − Proposed Settlement and Hearing. (jc) (Entered: 07/26/2011)
150 LETTER − from Wilson McKinley re: Notice of Class Action − Propsed Settlement and Hearing. (jc) (Entered: 07/26/2011)
151 LETTER − from Thomas Kashatus re: Notice of Class Action − Proposed Settleent and Hearing. (jc) (Entered: 07/26/2011)
152 LETTER − from Margaret Kashatus re: Notice of Class Action − Proposed Settlement and Hearing. (jc) (Entered: 07/26/2011)
153 LETTER − from August & Winnifred Centi re: Notice of Class Action − Proposed Settlement and Hearing. (jc) (Entered: 07/26/2011)
154 LETTER − from Ruth Jarrett re: Notice of Class Action − Proposed Settlement and Hearing. (jc) (Entered: 07/26/2011)
155 LETTER − from Patricia O'Donnell re: Notice of Class Action − Proposed Settlement and Hearing. (jc) (Entered: 07/26/2011)
156 LETTER − from Margaret Tierney re: Notice of Class Action − Proposed Settlement and Hearing. (jc) (Entered: 07/26/2011)
157 LETTER − from William Hudock re; Notice of Class Action − Proposed Settlement and Hearing. (jc) (Entered: 07/26/2011)
158 Letter from Carole Henry re; Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 07/27/2011)
159 Letter from Wes Grebski re; Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 07/27/2011)

Case: 1:09-cv-1182 As of: 02/23/2016 06:57 PM EST 22 of 34

07/27/2011 07/27/2011 07/27/2011 07/27/2011 07/27/2011 07/28/2011 07/28/2011 07/28/2011 07/28/2011 07/28/2011 07/28/2011 07/28/2011 07/28/2011 07/28/2011 07/28/2011 07/28/2011 07/28/2011 07/28/2011 07/28/2011 07/28/2011
07/28/2011 07/29/2011 07/29/2011

160 Letter from Marian L. Lentz re; Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 07/27/2011)
161 Letter from Donald Sabo re; Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 07/27/2011)
162 Letter from Albert Knight re; Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 07/27/2011)
163 Letter from Kenneth Myers re; Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 07/27/2011)
164 Letter from Kathleen McKeaney re; Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 07/27/2011)
165 Letter from Jeremy Kashatus & Family filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 07/28/2011)
166 Letter from Karen S. Crytzer filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 07/28/2011)
167 Letter from Ellen Lube filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 07/28/2011)
168 Letter from Ruth Nicholfiled re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 07/28/2011)
169 Letter from Deborah and Gerard Hey filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 07/28/2011)
170 Letter from Sharon and Elmer Brice, Jr. filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 07/28/2011)
171 Letter from Jeanne C. Downey filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 07/28/2011)
172 Letter from Mary B. Fernan filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 07/28/2011)
173 Letter from Robert and Beverly Gill filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 07/28/2011)
174 Letter from Adelaide Hardy filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 07/28/2011)
175 Letter from Lily Chang filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 07/28/2011)
176 Letter from Joan Wright filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 07/28/2011)
177 Letter from Bertin W. Springstead filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 07/28/2011)
178 by Carl A Solano. Objections to Class Action Settlement. (Attachments: # 1 Certificate of service)(Solano, Carl) (Entered: 07/28/2011)
179 MOTION to Intervene by Carl A Solano. (Attachments: # 1 Proposed Order Proposed order, # 2 Exhibit(s) Exhibit A (objections), # 3 Certificate of Nonconcurrence Certificates)(Solano, Carl) (Entered: 07/28/2011)
180 BRIEF IN SUPPORT re 179 MOTION to Intervene filed by Carl A Solano.(Solano, Carl) (Entered: 07/28/2011)
181 Letter from Delores Drews re. Notice of Class Action − Proposed Settlement and Hearing (ma, ) (Entered: 07/29/2011)
182 Letter from Frederick Drews re Notice of Class Action − Proposed Settlement and Hearing (ma, ) (Entered: 07/29/2011)

Case: 1:09-cv-1182 As of: 02/23/2016 06:57 PM EST 23 of 34

07/29/2011 07/29/2011 07/29/2011 07/29/2011 07/29/2011 07/29/2011 07/29/2011
07/29/2011 07/29/2011 07/29/2011 07/29/2011 07/29/2011 07/29/2011 07/29/2011 07/29/2011 07/29/2011 07/29/2011 07/29/2011
08/01/2011 08/01/2011 08/01/2011 08/01/2011 08/01/2011

183 Letter from Nancy Murray re: Notice of Class Action − Proposed Settlement and Hearing (ma, ) (Entered: 07/29/2011)
184 Letter from Mark Drews re: Notice of Class Action − Proposed Settlement and Hearing (ma, ) (Entered: 07/29/2011)
185 Letter from Megan Irwin re: Notice of Class Action − Proposed Settlement and Hearing (ma, ) (Entered: 07/29/2011)
186 Letter from Mr. & Mrs. John Potochnick re: Notice of Class Action − Proposed Settlement and Hearing (ma, ) (Entered: 07/29/2011)
187 Letter from Carol McDonald re: Notice of Class Action − Proposed Settlement and Hearing (ma, ) (Entered: 07/29/2011)
188 Letter from James Margolis re: Notice of Class Action − Proposed Settlement and Hearing (ma, ) (Entered: 07/29/2011)
189 Letter from Charles McCormick re: Notice of Class Action − Proposed Settlement and Hearing. (Additional attachments given directly to chambers) (ma, ) (Entered: 07/29/2011)
190 Letter from Eloise Moore re: Notice of Class Action − Proposed Settlement and Hearing (ma, ) (Entered: 07/29/2011)
191 Letter from Clarence and Gail Ropp re: Notice of Class Action − Proposed Settlement and Hearing (ma, ) (Entered: 07/29/2011)
192 Letter from Trudy Sheetz re: Notice of Class Action − Proposed Settlement and Hearing (ma, ) (Entered: 07/29/2011)
193 Letter from Geraldine Wetzel re: Notice of Class Action − Proposed Settlement and Hearing (ma, ) (Entered: 07/29/2011)
194 Letter from J. Keffer re: Notice of Class Action − Proposed Settlement and Hearing (ma, ) (Entered: 07/29/2011)
195 Letter from David Kalan re: Notice of Class Action − Proposed Settlement and Hearing (ma, ) (Entered: 07/29/2011)
196 Letter from Richard and Jane Ruth re: Notice of Class Action − Proposed Settlement and Hearing (ma, ) (Entered: 07/29/2011)
197 Letter from Jean Milliron re: Notice of Class Action − Proposed Settlement and Hearing (ma, ) (Entered: 07/29/2011)
198 Letter from Sen. Mary Jo White re: Notice of Class Action − Proposed Settlement and Hearing. (aaa ) (Entered: 07/29/2011)
199 NOTICE of Appearance by Nathan P. Heller on behalf of VOR (Heller, Nathan) (Entered: 07/29/2011)
200 MOTION to Appear Pro Hac Vice − Attorney Lesli Esposito is seeking special admission. Filing fee $ 50, receipt number 0314−2245057. by VOR.(Heller, Nathan) (Entered: 07/29/2011)
DOCKET ANNOTATION: PA State Bar Record verified for Lesli C. Esposito and Nathan P. Heller. (jc) (Entered: 08/01/2011)
201 Letter from Harold McConnell III filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/01/2011)
202 Letter from Mary Schneider filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/01/2011)
203 Letter from Betty Lightner filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/01/2011)
204 Letter from Joseph Potera filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/01/2011)

Case: 1:09-cv-1182 As of: 02/23/2016 06:57 PM EST 24 of 34

08/01/2011 08/01/2011 08/01/2011 08/01/2011 08/01/2011 08/01/2011 08/01/2011 08/01/2011 08/01/2011 08/01/2011 08/01/2011 08/01/2011 08/01/2011 08/01/2011 08/01/2011
08/01/2011 08/01/2011
08/02/2011
08/02/2011 08/02/2011 08/02/2011 08/02/2011

205 Letter from Ann Marie Walsh filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/01/2011)
206 Letter from Barbara Ann Fritz filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/01/2011)
207 Letter from Rose Schafer filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/01/2011)
208 Letter from Tommy Kashatus filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/01/2011)
209 Letter from Debra Kleinen filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/01/2011)
210 Letter from Debra Herring filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/01/2011)
211 Letter from Daniel Kleinen filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/01/2011)
212 Letter from William & Beverly Daugherty filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/01/2011)
213 Letter from Kathy Casadonte filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/01/2011)
214 Letter from Kimberley Gauronski filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/01/2011)
215 Letter from Larry Krafft filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/01/2011)
216 Letter from Jennifer Crawford filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/01/2011)
217 Letter from Sen. Mary Jo White filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/01/2011)
218 Letter from Nathan P. Heller and Lesli C. Esposito Objecting to Settlement. (Heller, Nathan) (Entered: 08/01/2011)
219 MOTION to Exceed Page Limitation by Sylvia Baldwin, Anthony Beard, Franklin Benjamin, Frank Edgett, Richard Grogg. (Attachments: # 1 Certificate of Concurrence and Non−Opposition, # 2 Proposed Order)(Meek, Robert) (Entered: 08/01/2011)
220 ORDER granting 219 Motion for Leave to File Excess Pages (eo, ) (Entered: 08/01/2011)
221 OBJECTIONS by Maria Kashatus, Richard Kohler, Beth Ann Lambo, Maria Meo, Wilson Sheppard, Craig Springstead, Michael Storm. Supplemental Objections of Craig Springstead, Maria Meo, Daniel Bastek, Michael Storm, Beth Ann Lambo, Richard Kohler, Maria Kashatus, and Wilson Sheppard to Proposed Settlement Agreement. (Attachments: # 1 Affidavit, # 2 Exhibit(s))(Riley, John) (Entered: 08/01/2011)
222 SUPPLEMENTAL OBJECTIONS filed by Daniel Bastek, Maria Kashatus, Richard Kohler, Beth Ann Lambo, Maria Meo, Wilson Sheppard, Wilson Sheppard, Craig Springstead, Michael Storm. (pjr) (Entered: 08/02/2011)
223 MEMORANDUM OF LAW by UNITED STATES OF AMERICA in Support of Proposed Settlement. (Trepel, Samantha) (Entered: 08/02/2011)
224 Letter from Pamela Breneman re: plans to attend hearing as a neutral observer. (pjr) (Entered: 08/02/2011)
225 Letter from Tarah Toohil filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/02/2011)
226 Letter from The staff and students of Keystone Job Corps filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/02/2011)

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08/02/2011
08/02/2011 08/02/2011 08/02/2011 08/02/2011 08/02/2011 08/02/2011 08/02/2011 08/02/2011 08/02/2011 08/02/2011 08/02/2011 08/02/2011 08/02/2011 08/02/2011 08/02/2011 08/02/2011 08/02/2011 08/02/2011 08/02/2011 08/02/2011 08/02/2011 08/02/2011

227 Letter from Donna Wetherill filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Main Document 227 replaced on 8/9/2011) (pjr, ). (Entered: 08/02/2011)
228 Letter from Francis Marion filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/02/2011)
229 Letter from Linda Lotzi filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/02/2011)
230 Letter from Bertin Springstead filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/02/2011)
231 Letter from William Toperzer filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/02/2011)
232 Letter from Amy Schwartz, Jerry Hake & Sara Greth filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/02/2011)
233 Letter from Martha Ilift filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/02/2011)
234 Letter from David Parry filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/02/2011)
235 Letter from Paula Wolfe filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/02/2011)
236 Letter from Henry Sitko filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/02/2011)
237 Letter from Beatrice Sitko filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/02/2011)
238 Letter from Gerard Dunne filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/02/2011)
239 Letter from David Read filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/02/2011)
240 Letter from Ann Marie Vodzak filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/02/2011)
241 Letter from Evelyn Crawford filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/02/2011)
242 Letter from William Brill filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/02/2011)
243 Letter from James & Lucille Causer filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/02/2011)
244 Letter from Emil & Elizabeth Gnall filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/02/2011)
245 Letter from Barry & Anna Johns filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/02/2011)
246 Letter from Regina Splane filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/02/2011)
247 Letter from Annette & Ronald Fischer filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/02/2011)
248 Letter from Shirley Musacchio filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/02/2011)
249 Letter from Carin Doddroe filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/02/2011)

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08/02/2011 08/02/2011 08/02/2011 08/02/2011
08/02/2011
08/03/2011 08/05/2011 08/05/2011
08/08/2011 08/08/2011
08/08/2011 08/08/2011
08/08/2011 08/09/2011
08/09/2011 08/10/2011
08/10/2011

250 Letter from Timothy Demers filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/02/2011)
251 Letter from Rickey Shaffer filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/02/2011)
252 Letter from Carl Lloyd filed re: Notice of Class Action − Proposed Settlement and Hearing. (pjr) (Entered: 08/02/2011)
253 MOTION to Intervene Pursuant to Federal Rule of Civil Procedure 24 by Daniel Bastek, Richard Clarke, Maria Kashatus, Richard Kohler, Beth Ann Lambo, Maria Meo, Wilson Sheppard, Craig Springstead, Michael Storm. (Attachments: # 1 Exhibit(s))(Riley, John) (Entered: 08/02/2011)
254 BRIEF IN SUPPORT re 253 MOTION to Intervene Pursuant to Federal Rule of Civil Procedure 24 filed by Daniel Bastek, Richard Clarke, Maria Kashatus, Richard Kohler, Beth Ann Lambo, Maria Meo, Wilson Sheppard, Craig Springstead, Michael Storm.(Riley, John) (Entered: 08/02/2011)
256 LETTER − from Samuel Boring re: Notice of Class Action − Proposed Settlement and Hearing. (jc) (Entered: 08/03/2011)
257 CERTIFICATE of Counsel Regarding Notice by Robert W. Meek on behalf of Sylvia Baldwin, Anthony Beard, Franklin Benjamin, Frank Edgett, Richard Grogg (Meek, Robert) (Entered: 08/05/2011)
258 MOTION to Exceed Page Limitation for Brief in Opposition to Motion of Craig Springstead et al. to Intervene Pursuant to Fed. R. Civ. P. 24 by Sylvia Baldwin, Anthony Beard, Franklin Benjamin, Frank Edgett, Richard Grogg. (Attachments: # 1 Certificate of Concurrence and Non−Opposition, # 2 Proposed Order)(Meek, Robert) (Entered: 08/05/2011)
259 ORDER granting 258 Motion for Leave to File Excess Pages (eo, ) (Entered: 08/08/2011)
260 MOTION to Approve Consent Judgment by Sylvia Baldwin, Anthony Beard, Franklin Benjamin, Frank Edgett, Richard Grogg. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Certificate of Concurrence, # 4 Proposed Order)(Meek, Robert) (Entered: 08/08/2011)
261 BRIEF IN SUPPORT re 260 MOTION to Approve Consent Judgment filed by Sylvia Baldwin, Anthony Beard, Franklin Benjamin, Frank Edgett, Richard Grogg.(Meek, Robert) (Entered: 08/08/2011)
262 MOTION for Attorney Fees by Sylvia Baldwin, Anthony Beard, Franklin Benjamin, Frank Edgett, Richard Grogg. (Attachments: # 1 Exhibit A, # 2 Exhibit B, Pt. 1, # 3 Exhibit B, Pt. 2, # 4 Exhibit C, # 5 Exhibits D & E, # 6 Exhibits F, G, & H, # 7 Certificate of Concurrence, # 8 Proposed Order)(Meek, Robert) (Entered: 08/08/2011)
263 CERTIFICATE of Counsel regarding Notice to Class by Doris M. Leisch on behalf of All Defendants (Leisch, Doris) (Entered: 08/08/2011)
264 SCHEDULING ORDER: Telephone Conference set for 8/15/2011 02:30 PM before Honorable John E. Jones III. Counsel for the Plaintiffs shall initiate the call to Chambers at (717) 221−3986. When the call is placed, all counsel shall be on the line and prepared to proceed. (eo, ) (Entered: 08/09/2011)
DOCKET ANNOTATION: Doc. 227 replaced with correct image. (pjr) (Entered: 08/09/2011)
265 by Daniel Bastek, Maria Kashatus, Richard Kohler, Beth Ann Lambo, Maria Meo, Wilson Sheppard, Craig Springstead, Michael Storm. Letter from Benjamin J. Hoffart, Esquire and John E. Riley, Esquire re: Telephone Conference set for 8/15/2011 at 2:30 p.m. before Honorable John E. Jones, III. (Riley, John) (Entered: 08/10/2011)
266 MOTION for Extension of Time to respond to Motion of Diane Solano to Intervene for Purpose of Objecting to Class Action Settlement (unopposed) by Department of Public Welfare of the Commonwealth of Pennsylvania, Harriet Dichter. (Attachments: # 1 Proposed Order)(Leisch, Doris) (Entered: 08/10/2011)

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08/11/2011
08/12/2011 08/15/2011
08/15/2011
08/16/2011
08/16/2011
08/17/2011 08/18/2011 08/18/2011
08/18/2011 08/25/2011 09/02/2011 09/02/2011

267 BRIEF IN OPPOSITION re 179 MOTION to Intervene of Diane Solano for the Purpose of Objecting to Class Action Settlement filed by Sylvia Baldwin, Anthony Beard, Franklin Benjamin, Frank Edgett, Richard Grogg. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Proposed Order)(Meek, Robert) (Entered: 08/11/2011)
268 ORDER granting 266 Motion to Extend Time (eo, ) (Entered: 08/12/2011)
269 MOTION for Hearing Joint Motion of Diane Solano and Craig Springstead, Maria Meo, Daniel Bastek, Michael Storm, Beth Ann Lambo, Richard Kohler, Maria Kashatus, Wilson Sheppard Requesting Oral Argument on the Issue of Standing by Daniel Bastek, Maria Kashatus, Richard Kohler, Beth Ann Lambo, Maria Meo, Wilson Sheppard, Craig Springstead, Michael Storm.(Riley, John) (Entered: 08/15/2011)
270 BRIEF IN SUPPORT of Joint Motion of Diane Solano and Craig Springstead, Maria Meo, Daniel Bastek, Michael Storm, Beth Ann Lambo, Richard Kohler, Maria Kashatus, Wilson Sheppard for Oral Argument on the Issue of Standing re 269 MOTION for Hearing Joint Motion of Diane Solano and Craig Springstead, Maria Meo, Daniel Bastek, Michael Storm, Beth Ann Lambo, Richard Kohler, Maria Kashatus, Wilson Sheppard Requesting Oral Argument on the Issue of Standing filed by Daniel Bastek, Maria Kashatus, Richard Kohler, Beth Ann Lambo, Maria Meo, Wilson Sheppard, Craig Springstead, Michael Storm.(Riley, John) (Entered: 08/15/2011)
272 BRIEF IN OPPOSITION re 253 MOTION to Intervene Pursuant to Federal Rule of Civil Procedure 24 filed by Sylvia Baldwin, Anthony Beard, Franklin Benjamin, Frank Edgett, Richard Grogg. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Proposed Order)(Meek, Robert) (Entered: 08/16/2011)
273 ORDER − IT IS HEREBY ORDERED: 1)The Springstead Intervenors and Mr. Solano shall identify, via letter on the docket, the attorney designated to appear in the 8/22/11 hearing, on or before Thursday, 8/18/11; 2)Motions 179 & [253 to Intervene are DENIED; & 3)The Joint Motion for a Hearing 269 is DENIED. SEE ORDER FOR COMPLETE DETAILS.Signed by Honorable John E. Jones, III on 8/16/11. (dh) (Entered: 08/16/2011)
274 Letter from C. Solano. (Solano, Carl) (Entered: 08/17/2011)
275 Letter from Robert W. Meek on behalf of Plaintiffs and Defendants. (Meek, Robert) (Entered: 08/18/2011)
276 ORDER − IT IS HEREBY ORDERED: The parties SHALL PROVIDE to counsel any additional witness names and, if practicable, copies or descriptions of documents and record evidence, either directly or via the Court's docket, by 8/19/11, at 12:00 P.M. SEE ORDER FOR COMPLETE DETAILS.Signed by Honorable John E. Jones, III on 8/18/11. (dh) (Entered: 08/18/2011)
277 Letter from Benjamin J. Hoffart to The Honorable John E. Jones, III. (Riley, John) (Entered: 08/18/2011)
279 Letter from C. Solano re Supp. Authority. (Solano, Carl) (Entered: 08/25/2011)
280 MEMORANDUM (Attachments: # 1 Settlement Agreement)(eo, ) (Entered: 09/02/2011)
281 ORDER − 1. The Court FINDS that the Settlement Agreement is fair, reasonable, and adequate; 2. Plaintiffs Unopposed Motion for Final Approval of the Proposed Class Action Settlement Agreement (Doc. 260) is GRANTED; 3. The Settlement Agreement is APPROVED; 4. Plaintiffs Unopposed Motion for attorneys Fees, Litigation Expenses, and Costs (Doc. 262) is GRANTED;5.Defendants will pay Plaintiffs counsel the sum of $432,500 for attorneys fees, litigation expenses, and costs incurred;6. This action is hereby DISMISSED and the Clerk is directed to CLOSE this case; and 7.The Court expressly retains jurisdiction as set forth in the Settlement Agreement, in order to enter any further orders that may be necessary or appropriate in administering or implementing the terms and provisions of the settlement agreement. (eo, ) (Entered: 09/02/2011)

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09/12/2011
09/12/2011 09/19/2011
09/29/2011
09/29/2011 09/30/2011 09/30/2011 10/14/2011 11/08/2011 11/08/2011 11/21/2011 11/22/2011 12/09/2011 12/09/2011

282 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Fairness Hearing proceedings held on 8/22/11 before Judge Jones. Court Reporter Lori Shuey, Telephone number (717)215−1270. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/3/2011. Redacted Transcript Deadline set for 10/13/2011. Release of Transcript Restriction set for 12/12/2011. (ctrep1, ) (Entered: 09/12/2011)
283 NOTICE TO UNREGISTERED ECF ATTORNEYS/PRO SE PARTIES regarding the filing of 282 Transcript. A copy of the notice was sent to Benjamin J. Hoffart on 9/12/11. (lh, ) (Entered: 09/12/2011)
284 COURT REPORTER NOTES OF PROCEEDINGS filed by L. Shuey of hearing before Judge Jones on 8/22/11. In accordance with 28 U.S.C. Section 753(b), I certify that these original notes are a true and correct record of proceedings in the United States District Court for the Middle District of PA before Judge Jones on 8/22/11. By s/ L. Shuey. (Court Reporter Notes are viewable by court staff only). (ctrep1, ) (Entered: 09/19/2011)
285 NOTICE OF APPEAL in by Daniel Bastek, Richard Clarke, Maria Kashatus, Richard Kohler, Beth Ann Lambo, Maria Meo, Wilson Sheppard, Craig Springstead, Michael Storm. Filing Fee and Docket Fee PAID. Filing fee $ 455, receipt number 0314−2292949. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. (Murray, William) (Entered: 09/29/2011)
286 NOTICE OF APPEAL in NON−PRISONER Case by Carl A Solano. Filing Fee and Docket Fee PAID. Filing fee $ 455, receipt number 0314−2293202. Court Reporter Lori A. Shuey. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. (Solano, Carl) (Entered: 09/29/2011)
287 USCA Case Number 11−3685 for 286 Notice of Appeal, filed by Carl A Solano. USCA Case Manager Maria L. Reyes (DOCUMENT IS RESTRICTED AND CAN ONLY BE VIEWED BY COURT STAFF). (Reyes, Maria) (Entered: 09/30/2011)
288 USCA Case Number 11−3684 for 285 Notice of Appeal, filed by Michael Storm, Daniel Bastek, Craig Springstead, Wilson Sheppard, Maria Meo, Richard Clarke, Richard Kohler, Maria Kashatus, Beth Ann Lambo. USCA Case Manager Maria L. Reyes (DOCUMENT IS RESTRICTED AND CAN ONLY BE VIEWED BY COURT STAFF). (Reyes, Maria) (Entered: 09/30/2011)
289 TRANSCRIPT PURCHASE ORDER REQUEST filed by Carl A Solano. (pjr) (Entered: 10/14/2011)
290 MOTION to Stay Order Pending Appeal by Carl A Solano. (Attachments: # 1 Proposed Order Proposed order granting limited stay, # 2 Exhibit(s) Exhibit A (with Attachment 1), # 3 Certificate of Nonconcurrence Certificate of nonconcurrence and service)(Solano, Carl) (Entered: 11/08/2011)
291 BRIEF IN SUPPORT re 290 MOTION to Stay Order Pending Appeal filed by Carl A Solano.(Solano, Carl) (Entered: 11/08/2011)
292 Joint MOTION for Extension of Time to respond to joint motion for partial stay by objectors by Sylvia Baldwin, Anthony Beard, Franklin Benjamin, Department of Public Welfare of the Commonwealth of Pennsylvania, Frank Edgett, Richard Grogg, Gary D Alexander. (Attachments: # 1 Proposed Order)(Leisch, Doris) (Entered: 11/21/2011)
293 ORDER granting 292 Motion to Extend Time (eo, ) (Entered: 11/22/2011)
294 BRIEF IN OPPOSITION re 290 MOTION to Stay Order Pending Appeal filed by Sylvia Baldwin, Anthony Beard, Franklin Benjamin, Frank Edgett, Richard Grogg. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Proposed Order)(Meek, Robert) (Entered: 12/09/2011)
SUPPLEMENTAL RECORD ON APPEAL transmitted to US Court of Appeals re: 291 Brief in Support, 292 Joint MOTION for Extension of Time to respond to joint

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12/09/2011 12/12/2011 12/19/2011 10/26/2012 11/05/2012 12/12/2012
12/13/2012
01/31/2013 01/31/2013
02/04/2013 02/27/2013 02/27/2013

motion for partial stay by objectors, 293 Order on Motion to Extend Time, 290 MOTION to Stay Order Pending Appeal, 289 TPO (Transcript Purchase Order Request)Filed, 294 Brief in Opposition,. Documents and Docket Sheet available through ECF. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. (jc, ) (Entered: 12/09/2011)
295 BRIEF IN OPPOSITION re 290 MOTION to Stay Order Pending Appeal filed by Gary D Alexander, Department of Public Welfare of the Commonwealth of Pennsylvania. (Attachments: # 1 Affidavit Exhibit A − Declaration, # 2 Affidavit Exhibit B − Declaration, # 3 Affidavit Exhibit C − Declaration, # 4 Proposed Order)(Leisch, Doris) (Entered: 12/09/2011)
296 REPLY BRIEF re 290 MOTION to Stay Order Pending Appeal filed by Carl A Solano.(Solano, Carl) (Entered: 12/12/2011)
297 ORDER denying 290 Motion to Stay (eo, ) (Entered: 12/19/2011)
298 ORDER of USCA as to 286 , granting Motion by Appellants Daniel Bastek, Maria Kashatus, Richard Kohler, Beth Ann Lambo, Maria Meo, Wilson Sheppard, Craig Springstead and Michael Storm in 11−3684 and Diane Solano in 11−3685 for a partial stay of the District Court's Order dated September 2, 2011, pending decision of these appeals, filed. (Reyes, Maria) (Entered: 10/26/2012)
DOCKET ANNOTATION: As electronic notification to Atty. Ulan had failed, courtesy hard copy of Doc. 298 mailed with instructions for updating ECF account info.(ep) (Entered: 11/05/2012)
299 JUDGMENT of USCA (certified copy) Ordered and Adjudged by this court that the order of the District Court entered on August 16, 2011 be and the same hereby is Vacated insofar as it denied Appellants' motions to intervene as of right in the remedy stage of this litigation. It is further Ordered and Adjudged by this Court that the order of the District Court entered September 2, 2011 granting final approval to the parties' settlement aggreement be and the same is Vacated. This matter is remanded to the District Court with specific instructions to grant Appellant's motion to intervene as of right in the remedy stage of this litigation as well as to permit Appellants, as proper intervenors, to challenge the settlement agreement and to seek decertification of the class. as to 285 Notice of Appeal, filed by Michael Storm, Daniel Bastek, Craig Springstead, Wilson Sheppard, Maria Meo, Richard Clarke, Richard Kohler, Maria Kashatus, Beth Ann Lambo, 286 Notice of Appeal, filed by Carl A Solano. (Reyes, Maria) (Entered: 12/12/2012)
300 SCHEDULING ORDER: 1. The Motions to Intervene of Diane Solano (doc. 179) and of Craig Springstead, Maria Meo, Daniel Bastek, Michael Storm, Beth Ann Lambo, Richard Kohler, Maria Kashatus, and Wilson Sheppard (doc. 253), both filed by and through their next friends, are GRANTED. 2. A status conference to determine conduct of further proceedings in this matter IS SCHEDULED for January 31, 2013 at 1:30 p.m. in Courtroom #1, United States Courthouse and Federal Building, Harrisburg, Pennsylvania. (eo) (Entered: 12/13/2012)
301 ORDER − Status report due in 60 days. (eo) (Entered: 01/31/2013)
303 COURT REPORTER NOTES OF PROCEEDINGS filed by L. Shuey of status conference before Judge Jones on 1/31/13. In accordance with 28 U.S.C. Section 753(b), I certify that these original notes are a true and correct record of proceedings in the United States District Court for the Middle District of PA before Judge Jones on 1/31/13. By s/ L. Shuey. (Court Reporter Notes are viewable by court staff only). (ctrep1, ) (Entered: 01/31/2013)
DOCKET ANNOTATION: As electronic notification to Atty. Ulan had failed, courtesy hard copy of Doc. 301 mailed with instructions for updating ECF account info.(ep) (Entered: 02/04/2013)
304 NOTICE of Appearance by Dynah E. Haubert on behalf of All Plaintiffs (Haubert, Dynah) (Entered: 02/27/2013)
305 NOTICE of Appearance by Kelly L. Darr on behalf of All Plaintiffs (Darr, Kelly) (Entered: 02/27/2013)

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03/18/2013 03/18/2013
03/20/2013 05/31/2013 06/03/2013
06/04/2013 06/07/2013
07/12/2013 07/17/2013 07/17/2013
09/12/2013

306 STATUS REPORT by Sylvia Baldwin, Anthony Beard, Franklin Benjamin, Frank Edgett, Richard Grogg. (Darr, Kelly) (Entered: 03/18/2013)
307 ORDER 1. The parties are granted an extension of time until May 31, 2013, inwhich to continue to conduct negotiations and discuss resolution ofthis matter. On or before that date, counsel for the Plaintiffs SHALL file a report on the docket advising the Court of the status of this matter. If the parties have not yet reached a resolution at that time but remain hopeful toward a global settlement, the Court will entertain the parties request for a reasonable extension of time. 2. The parties may continue to conduct such discovery, formal or informal, as necessary during this period to the extent it relates to or facilitates the intervenors ability to fluently discuss and participate in negotiations toward an ultimate resolution of this matter.3. The Court will thereafter schedule further proceedings as necessary (eo) (Entered: 03/18/2013)
DOCKET ANNOTATION: As electronic notification to Atty. Ulan had failed, courtesy hard copy of Doc. 307 mailed with instructions for updating ECF account info.(ep) (Entered: 03/20/2013)
308 STATUS REPORT by Sylvia Baldwin, Anthony Beard, Franklin Benjamin, Frank Edgett, Richard Grogg. (Darr, Kelly) (Entered: 05/31/2013)
309 ORDER − 1.The parties are granted an extension of time until July 15, 2013, in which to continue to conduct negotiations and discuss resolution of this matter. On or before that date, counsel for the Plaintiffs SHALL file a report on the docket advising the Court of the status of this matter. If the parties have not yet reached a resolution at that time but remain hopeful toward a global settlement, the Court will entertain the parties request for a reasonable extension of time. 2. The parties may continue to conduct such discovery, formal or informal, as necessary during this period to the extent it relates to or facilitates the intervenors ability to fluently discuss and participate in negotiations toward an ultimate resolution of this matter. 3. The Court will thereafter schedule further proceedings as necessary. (eo) (Entered: 06/03/2013)
DOCKET ANNOTATION: As electronic notification to Atty. Ulan CONTINUES TO FAIL, courtesy hard copy of Doc. 309 , mailed with instructions for updating ECF account info; if counsel is no longer associated with case, co−counsel or replacement counsel are urged to file praecipe for withdrawal or substitution of attorney.(ep) (Entered: 06/04/2013)
As counsel and parties in this action are many, counsel are urged to verify that their contact information on the docket and in ECF is up todate and that all co−counsel listed are still active in the case and that *their* contact information is correct on the docket; Please file the appropriate withdrawals of counsel and/or substitutions of counsel for those no longer associated with the case, or have contact information corrected. Thank you.For toll−free ECF telephone support, you may call the divisionaloffice nearest to you during regular business hours:Scranton: 866−263−8479Harrisburg: 866−333−3261Williamsport: 866−736−3914 Ed PetroskiDeputy Clerk(ep) (Entered: 06/07/2013)
310 Letter from Robert W. Meek, Esquire Re Progress in Negotiating a Settlement. (Meek, Robert) (Entered: 07/12/2013)
311 STATUS REPORT by Anthony Beard, Franklin Benjamin, Frank Edgett, Richard Grogg. (Darr, Kelly) (Entered: 07/17/2013)
312 ORDER − 1. The parties are granted an extension of time until September 16, 2013, in which to continue to conduct negotiations and discuss resolution ofthis matter. On or before that date, counsel for the Plaintiffs SHALL file a report on the docket advising the Court of the status of this matter. If the parties have not yet reached a resolution at that time but remain hopeful toward a global settlement, the Court will entertain the parties request for a reasonable extension of time. 2. The parties may continue to conduct such discovery, formal or informal, as necessary during this period to the extent it relates to or facilitates the intervenors ability to fluently discuss and participate in negotiations toward an ultimate resolution of this matter. 3. The Court will thereafter schedule further proceedings as necessary. (eo) (Entered: 07/17/2013)
313 Letter from Kelly Darr re extension to file status report. (Darr, Kelly) (Entered: 09/12/2013)

Case: 1:09-cv-1182 As of: 02/23/2016 06:57 PM EST 31 of 34

09/13/2013
09/23/2013 09/23/2013
10/01/2013
10/25/2013 10/28/2013
12/02/2013 12/02/2013 12/05/2013 12/05/2013 12/31/2013 01/15/2014 01/17/2014 02/20/2014

314 ORDER − 1. The parties are granted an extension of time until September 23, 2013, in which to continue to conduct negotiations and discuss resolution ofthis matter. On or before that date, counsel for the Plaintiffs SHALL file a report on the docket advising the Court of the status of this matter. If the parties have not yet reached a resolution at that time but remain hopeful toward a global settlement, the Court will entertain the parties request for a reasonable extension of time. 2. The parties may continue to conduct such discovery, formal or informal, as necessary during this period to the extent it relates to or facilitates the intervenors ability to fluently discuss and participate in negotiations toward an ultimate resolution of this matter.3. The Court will thereafter schedule further proceedings as necessary. (eo) (Entered: 09/13/2013)
315 STATUS REPORT by Sylvia Baldwin, Anthony Beard, Franklin Benjamin, Frank Edgett, Richard Grogg. (Darr, Kelly) (Entered: 09/23/2013)
316 ORDER − 1. The parties are granted an extension of time until October 31, 2013, in which to continue to conduct negotiations and discuss resolution ofthis matter. On or before that date, counsel for the Plaintiffs SHALL file a report on the docket advising the Court of the status of this matter. If the parties have not yet reached a resolution at that time but remain hopeful toward a global settlement, the Court will entertain the parties request for a reasonable extension of time. 2. The parties may continue to conduct such discovery, formal or informal, as necessary during this period to the extent it relates to or facilitates the intervenors ability to fluently discuss and participate in negotiations toward an ultimate resolution of this matter.3. The Court will thereafter schedule further proceedings as necessary. (eo) (Entered: 09/23/2013)
DOCKET ANNOTATION: As electronic notification to Atty. Ulan CONTINUES TO FAIL, courtesy hard copy of Doc. 316 mailed with instructions for updating ECF account info; if counsel is no longer associated with case, co−counsel or replacement counsel are urged to file praecipe for withdrawal or substitution of attorney.(ep) (Entered: 10/01/2013)
317 Letter from Kelly Darr re Request for Extension to File Status Report. (Darr, Kelly) (Entered: 10/25/2013)
318 ORDER − 1.The parties are granted an extension of time until December 2, 2013, in which to continue to conduct negotiations and discuss resolution of this matter. On or before that date, counsel for the Plaintiffs SHALL file a report on the docket advising the Court of the status of this matter. If the parties have not yet reached a resolution at that time but remain hopeful toward a global settlement, the Court will entertain the parties request for a reasonable extension of time. 2. The parties may continue to conduct such discovery, formal or informal, as necessary during this period to the extent it relates to or facilitates the intervenors ability to fluently discuss and participate in negotiations toward an ultimate resolution of this matter.3.The Court will thereafter schedule further proceedings as necessary. (eo) (Entered: 10/28/2013)
319 STATUS REPORT by Anthony Beard, Franklin Benjamin, Frank Edgett, Richard Grogg. (Darr, Kelly) (Entered: 12/02/2013)
320 SUGGESTION OF DEATH Upon the Record as to Sylvia Baldwin by Anthony Beard, Franklin Benjamin, Frank Edgett, Richard Grogg. (Darr, Kelly) (Entered: 12/02/2013)
321 ORDER − Terminate Sylvia Brown on the docket. (eo) (Entered: 12/05/2013)
322 ORDER − status report due 1/15/14 (eo) (Entered: 12/05/2013)
323 WITHDRAWAL OF ATTORNEY APPEARANCE − Attorney Howard Ulan and Allen C. Warshaw terminated on behalf of Department of Public Welfare, Estelle B. Richman, Harriet Dichter. (Leisch, Doris) (Entered: 12/31/2013)
324 STATUS REPORT by Anthony Beard, Franklin Benjamin, Frank Edgett, Richard Grogg. (Darr, Kelly) (Entered: 01/15/2014)
325 ORDER − see order for details (eo) (Entered: 01/17/2014)
326 STATUS REPORT by Anthony Beard, Franklin Benjamin, Frank Edgett, Richard Grogg. (Darr, Kelly) (Entered: 02/20/2014)

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02/21/2014
03/24/2014 03/25/2014 03/26/2014 03/28/2014 03/31/2014 04/02/2014
05/16/2014
05/21/2014 06/11/2014
06/11/2014 06/12/2014 06/12/2014

327 ORDER − 1. Within 30 days of the date of this Order, the parties SHALL complete all negotiations pertaining to and finally resolve the outstanding fee issue in this matter. 2. Also within that 30 day period, counsel for Plaintiffs SHALL file a report on the docket advising the Court of the status of this matter. If the issue of fees remains unresolved at that time, the Court will refer this matter to a Magistrate Judge for mediation. (eo) (Entered: 02/21/2014)
328 STATUS REPORT by Anthony Beard, Franklin Benjamin, Frank Edgett, Richard Grogg. (Darr, Kelly) (Entered: 03/24/2014)
329 ORDER REFERRING case to Chief Magistrate Judge Carlson for referral of matters to U.S. Magistrate Judge. (eo) (Entered: 03/25/2014)
330 ORDER REFERRING CASE to Magistrate Judge Susan E. Schwab for settlement and mediaton purposes. Signed by Magistrate Judge Martin C. Carlson on March 26, 2014. (kjn) (Entered: 03/26/2014)
331 ORDER − IT IS ORDERED that a status conference is scheduled for April 2, 2014, at 2:30 p.m. The conference will be by telephone. Counsel for the plaintiffs shall initiate the call by calling Chambers after all counsel are on the line. Signed by Magistrate Judge Susan E. Schwab on 3/28/14. (rc) (Entered: 03/28/2014)
332 NOTICE of Appearance by Daniel M. Fellin on behalf of Department of Public Welfare of the Commonwealth of Pennsylvania. (Fellin, Daniel) (Entered: 03/31/2014)
334 ORDER − IT IS ORDERED that a settlement conference is scheduled for May 15, 2014, at 10:00 a.m., in Chambers, Room 1135, Eleventh Floor, Ronald Reagan Federal Building, Third and Walnut Streets, Harrisburg, Pennsylvania. Counsel are advised that their clients, or client representatives, with complete authority to negotiate and consummate a settlement shall be in attendance at the settlement conference. On or before April 18, 2014, defendants counsel shall submit a written offer to intevenors counsel along with a brief explanation of why such a settlement is appropriate. On occasion, this process will lead directly to a settlement. In the event that a settlement is not achieved on or before April 29, 2014, each party shall submit a confidential settlement memorandum, attaching their respective demand and offer letters, to my Chambers by email at Judge.Schwab@pamd.uscourts.gov. Signed by Magistrate Judge Susan E. Schwab on 4/2/14. (rc) (Entered: 04/02/2014)
335 ORDER − IT IS ORDERED that another settlement conference is scheduled for May 22, 2014, at 11:00 a.m., in Chambers, Room 1135, Eleventh Floor, Ronald Reagan Federal Building, Third and Walnut Streets, Harrisburg, Pennsylvania. IT IS FURTHER ORDERED, that on or before Noon on May 21, 2014, the parties shall report to the court whether they have settled the case and, if not, whether they wish to move ahead with the settlement conference scheduled for May 22, 2014. Signed by Magistrate Judge Susan E. Schwab on 5/16/14. (rc) (Entered: 05/16/2014)
337 ORDER − IT IS ORDERED that the Court will proceed with the settlement conference scheduled for May 22, 2014 at 11:00 a.m. Signed by Magistrate Judge Susan E. Schwab on 5/21/14. (rc) (Entered: 05/21/2014)
339 Unopposed MOTION to Approve Consent Judgment (Preliminary Approval of Proposed Class Action Settlement Agreement and Approval of Class Notice) by Anthony Beard, Franklin Benjamin, Frank Edgett, Richard Grogg. (Attachments: # 1 Certificate of Concurrence, # 2 Exhibit 1 (Meek Declaration), # 3 Exhibit 2 (Revised Settlement Agreement), # 4 Exhibit 3 (Proposed Class Notice), # 5 Proposed Order)(Meek, Robert) (Entered: 06/11/2014)
340 Unopposed MOTION to Certify Class (Settlement Class) by Anthony Beard, Franklin Benjamin, Frank Edgett, Richard Grogg. (Attachments: # 1 Certificate of Concurrence, # 2 Proposed Order)(Meek, Robert) (Entered: 06/11/2014)
341 ORDER granting 339 Preliminary Motion to Approve Consent Judgment. Final hearing set for 9/23/14 at 9:00 a.m. See order for all deadlines. (eo) (Entered: 06/12/2014)
Set/Reset Hearings: Hearing set for 9/23/2014 09:00 AM in Harrisburg − Courtroom 2 before Honorable John E. Jones III. (eo) (Entered: 06/12/2014)

Case: 1:09-cv-1182 As of: 02/23/2016 06:57 PM EST 33 of 34

06/12/2014 09/10/2014 09/15/2014 09/15/2014 09/15/2014 09/15/2014 09/15/2014
09/15/2014 09/15/2014
09/16/2014 09/17/2014 09/23/2014
09/25/2014 09/25/2014

342 ORDER granting 340 Motion to Certify Class. See order for details. (eo) (Entered: 06/12/2014)
343 Letter from Benjamin Hoffart re: Springstead Intervenors participation at hearing (eo) (Entered: 09/10/2014)
344 NOTICE of Appearance by Rebecca M Taylor on behalf of Department of Public Welfare of the Commonwealth of Pennsylvania. (Taylor, Rebecca) (Entered: 09/15/2014)
345 Unopposed MOTION to Approve Consent Judgment (Class Action Settlement Agreement) by Anthony Beard, Franklin Benjamin, Frank Edgett, Richard Grogg. (Attachments: # 1 Exhibits A through D, # 2 Certificate of Concurrence, # 3 Proposed Order)(Meek, Robert) (Entered: 09/15/2014)
346 NOTICE by Department of Public Welfare of the Commonwealth of Pennsylvania Certification of Notice (Taylor, Rebecca) (Entered: 09/15/2014)
347 BRIEF IN SUPPORT re 345 Unopposed MOTION to Approve Consent Judgment (Class Action Settlement Agreement) filed by Anthony Beard, Franklin Benjamin, Frank Edgett, Richard Grogg.(Meek, Robert) (Entered: 09/15/2014)
348 Unopposed MOTION for Attorney Fees by Anthony Beard, Franklin Benjamin, Frank Edgett, Richard Grogg. (Attachments: # 1 Certificate of Concurrence, # 2 Exhibit A, # 3 Exhibit B, Part 1, # 4 Exhibit B, Part 2, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibits E through H, # 8 Exhibits I through O, # 9 Proposed Order)(Meek, Robert) (Entered: 09/15/2014)
349 NOTICE by Department of Public Welfare of the Commonwealth of Pennsylvania Amended Certification of Notice (Taylor, Rebecca) (Entered: 09/15/2014)
350 Joint MOTION for Attorney Fees Litigation Expenses, and Costs by Daniel Bastek, Maria Kashatus, Richard Kohler, Beth Ann Lambo, Maria Meo, Wilson Sheppard, Craig Springstead, Michael Storm. (Attachments: # 1 Exhibit(s) A − JUDGMENT ORDER, # 2 Exhibit(s) B − DECLARATION OF BENJAMIN J. HOFFART IN SUPPORT, # 3 Exhibit(s) C − DECLARATION OF CARL A. SOLANO IN SUPPORT, # 4 Exhibit(s) D − CERTIFICATE OF CONCURRENCE)(Hoffart, Benjamin) (Entered: 09/15/2014)
351 Letter from Robert W. Meek to Request Time Change for Fairness Hearing. (Meek, Robert) (Entered: 09/16/2014)
352 SCHEDULING ORDER: Fairness Hearing reset for 9/23/2014 10:00 AM in Harrisburg − Courtroom 2 before Honorable John E. Jones III. (eo) (Entered: 09/17/2014)
354 COURT REPORTER NOTES OF PROCEEDINGS, filed by Wesley J. Armstrong, of fairness hearing held before Judge Jones on 23 September 2014. In accordance with 28 U.S.C., Section 753(b), I certify that these original notes are a true and correct record of proceedings in the United States District Court for the Middle District of PA before Judge Jones on 23 September 2014. By: s/ Wesley J. Armstrong, RMR. (Court Reporter Notes are viewable by court staff only.) (Entered: 09/23/2014)
355 MEMORANDUM (Order to follow as separate docket entry) (eo) (Entered: 09/25/2014)
356 ORDER (memorandum filed previously as separate docket entry) 1. The Court APPROVES the proposed Settlement Class and FINDS that the Settlement Agreement is fair, reasonable, and adequate; 2. Plaintiffs Unopposed Motion for Final Approval of the Proposed Revised Class Action Settlement Agreement (Doc. 345) is GRANTED; 3. The Settlement Agreement is APPROVED; 4. Plaintiffs Unopposed Motion for Attorneys Fees, Litigation Expenses, and Costs (Doc. 348) is GRANTED; 5. Defendants will pay Plaintiffs counsel the sum of $532,500.00 forattorneys fees, litigation expenses, and costs incurred; 6. Intervenors Joint Unopposed Motion for Attorneys Fees, Litigation Expenses, and Costs (Doc. 350) is GRANTED; 7. Defendants will pay Intervenors counsel the sum of $399,500.00 for attorneys fees, litigation expenses, and costs incurred, in accordance with the Motion; 8. This action is hereby DISMISSED and the Clerk is directed to CLOSE this case; and 9. The Court

Case: 1:09-cv-1182 As of: 02/23/2016 06:57 PM EST 34 of 34

10/08/2014
10/08/2014
10/09/2014 10/14/2014 10/17/2014

expressly retains jurisdiction as set forth in the Settlement Agreement, in order to enter any further orders that may be necessary or appropriate in administering or implementing the terms and provisions of the settlement agreement. (eo) (Entered: 09/25/2014)
357 ATTORNEY SUBSTITUTION − Withdrawal and Entry of Attorney Appearance. Attorney Benjamin J. Hoffart terminated. Attorney James D. Arden for Daniel Bastek,James D. Arden for Maria Kashatus,James D. Arden for Richard Kohler,James D. Arden for Beth Ann Lambo,James D. Arden for Maria Meo,James D. Arden for Wilson Sheppard,James D. Arden for Craig Springstead,James D. Arden for Michael Storm added. (Hoffart, Benjamin) (Entered: 10/08/2014)
358 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Benjamin J. Hoffart on behalf of Craig Springstead, Maria Meo, Wilson Sheppard, Daniel Bastek, Beth Ann Lambo, Richard Kohler, Michael Storm, Maria Kashatus Attorney James D. Arden is seeking special admission. Filing fee $ 50, receipt number 0314−3243369., filed by on behalf of Craig Springstead, Maria Meo, Wilson Sheppard, Daniel Bastek, Beth Ann Lambo, Richard Kohler, Michael Storm, Maria Kashatus.(Hoffart, Benjamin) (Entered: 10/08/2014)
DOCKET ANNOTATION: Search of the New York Bar Directory shows James Arden as "REGISTERED". (pjr) (Entered: 10/09/2014)
359 SPECIAL ADMISSIONS FORM APPROVED as to James D. Arden (eo) (Entered: 10/14/2014)
360 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of settlement fairness hearing held on 23 September 2014 before Judge Jones. Court Reporter: Wesley J. Armstrong, RMR (telephone number 717−542−5569). Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/7/2014. Redacted Transcript Deadline set for 11/17/2014. Release of Transcript Restriction set for 1/15/2015. (Entered: 10/17/2014)

 
 Case: 10-1908 Document: 003110490294 Page: 1 Date Filed: 04/05/2011
NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________________
NO. 10-1908
___________________
FRANKLIN BENJAMIN, by and through his next friend, Andree Yock; RICHARD GROGG;
FRANK EDGETT, by and through their next friend, Joyce McCarthy; SYLVIA BALDWIN, by
and through her next friend Shirl Meyers; ANTHONY BEARD, by and through his next friend, Nicole Turman, on behalf of themselves
and all others similarly situated
v.
DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA;
SECRETARY OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA
CRAIG SPRINGSTEAD, by and through his father and guardian, Bertin Springstead;
MARIA MEO, by and through her mother and guardian, Grace Meo; DANIEL BASTEK, by and
through his father and guardian, John Bastek; MICHAEL STORM, by and through his
guardian, Polly Spare; BETH ANN LAMBO, by and through her father and guardian, Joseph
Lambo; RICHARD CLARKE, by and through his father and guardian, Leonaed Clarke; RICHARD
KOHLER, by and through his sister and guardian, Sara Fuller; MARIA KASHATUS, by and through her father and guardian, Thomas Kashatus; WILSON SHEPPARD, by and through his brother
and next friend, Alfred Sheppard, Appellants
(Pursuant to Fed. R. App. P. 12(a)) _________________

Case: 10-1908 Document: 003110490294 Page: 2 Date Filed: 04/05/2011
On Appeal from the United States District Court For the Middle District of Pennsylvania (D.C. Civil No. 1-09-cv-01182) District Judge: Hon. John E. Jones, III __________________
Argued February 7, 2011
BEFORE: JORDAN, GREENAWAY, JR., and STAPLETON, Circuit Judges
(Opinion Filed: April 5, 2011)
__________________
Owen H. Smith (Argued) Sidley Austin 787 Seventh Avenue New York, NY 10019
and John E. Riley Vaira & Riley 1600 Market Street, Suite 2650 Philadelphia, PA 19103
Attorneys for Appellants
Mark J. Murphy Robert W. Meek (Argued) Robin Resnick Disability Rights Network of PA 1315 Walnut Street, Suite 500 Philadelphia, PA 19107
and Stephen F. Gold 1709 Benjamin Franklin Parkway – 2nd Floor Philadelphia, PA 19103
Attorneys for Appellees
Lesli C. Esposito (Argued)
2

Case: 10-1908 Document: 003110490294 Page: 3 Date Filed: 04/05/2011
DLA Piper 1650 Market Street, Suite 4900 Philadelphia, PA 19103
Attorney for Amicus Curiae Voices of the Retarded, Inc.
Carl A. Solano (Argued) Schnader Harrison Segal & Lewis 1600 Market Street, Suite 3600 Philadelphia, PA 19103
Attorney for Amicus Curiae Diane Solano
Joseph A. Sullivan Jeremy Heep Pepper Hamilton 3000 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103
and Natalie Grill Einsig Pepper Hamilton 100 Market Street, Suite 200 Harrisburg, PA 17108
Attorneys for Amicus Curiae The Arc of Pennsylvania and Vision for Equality, Inc.
______________________
OPINION OF THE COURT ______________________
STAPLETON, Circuit Judge:
Appellants-Intervenors Springstead et al. seek to intervene in this class action
brought against Defendants Pennsylvania Department of Public Welfare (“DPW”) and
Secretary of Public Welfare to enforce rights the Plaintiffs-Appellees claim to have
under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-
3

Case: 10-1908 Document: 003110490294 Page: 4 Date Filed: 04/05/2011
12134, and Section 504 of the Rehabilitation Act (“RA”), 29 U.S.C. § 794. We will affirm the District Court’s denial of permissive intervention and intervention of right.
I. Background
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), established that it is a violation of the ADA, the RA, and their implementing regulations to force developmentally disabled patients to reside in institutions when they are able and willing to live in a manner more fully integrated into the community. At the same time, Olmstead and the regulations make clear that “community based treatment [cannot] be imposed on patients who do not desire it.” Id. at 602 (citing 28 C.F.R. § 35.130(e)(1) (1998) and 28 C.F.R. pt. 35, App. A, p. 450 (1998)).
Plaintiffs-Appellees Benjamin et al. (“Plaintiffs”) are individuals with mental retardation who reside in intermediate care facilities for persons with mental retardation (“ICFs/MR”) operated by the DPW. They contend that the DPW’s failure to offer community services to them and others similarly situated violates the integration mandates of the ADA and RA. Plaintiffs sought and secured certification of the following class:
All persons who: (1) currently or in the future will reside in one of Pennsylvania’s state-operated intermediate care facilities for persons with mental retardation (ICFs/MR); (2) could reside in the community with appropriate services and supports; and (3) do not or would not oppose community placement. A7.
4

Case: 10-1908 Document: 003110490294 Page: 5 Date Filed: 04/05/2011
Plaintiffs seek declaratory and injunctive relief. They recognize that “Olmstead requires that patients eligible and desirous of community placement be discharged into community-based programs [only] if placement can be reasonably accommodated, taking into account the resources of the state and the needs of other persons in its care.” Frederick L. v. Dep’t. of Pub. Welfare, 422 F.3d 151, 156-57 (3d Cir. 2005) (citing Olmstead, 527 U.S. at 587). Accordingly, by way of remedy, they seek an injunction directing the DPW, inter alia, (1) to maintain a “Planning List that consists of all state ICF/MR residents who have been identified as not opposed to discharge to community services,” (2) to promptly place “on the Planning List the named Plaintiffs and any other state ICF/MR residents identified by the ICF/MR Facility Directors as having affirmatively expressed their desire to be discharged to the community,” (3) to question “ICF/MR residents and/or their involved family or guardians” at least annually regarding their current preference in order to keep the Planning List current, and (4) beginning in fiscal year 2011-12, to “develop and implement a viable integration plan that provides community services to at least 100 individuals on the Planning List annually for each of the first three years” and for at least 75 individuals from that list thereafter until all on the list have been discharged. A296-99.
The Springstead Intervenors (“Intervenors”) are residents of Pennsylvania ICFs/MR who would decline community placement if it were offered to them. They moved to intervene of right and permissively under Federal Rule of Civil Procedure 24. Intervenors alleged that they are de facto members of the certified class, that they have protectable interests jeopardized by this lawsuit, and that neither Plaintiffs nor the DPW
5

Case: 10-1908 Document: 003110490294 Page: 6 Date Filed: 04/05/2011
sufficiently represent their interests. The District Court denied the motion to intervene of right or permissively, and Intervenors timely appealed.1
Following the filing of this appeal, the District Court entered summary judgment
in favor of Plaintiffs on the liability issue. The remedy issue remains before it.
II. Discussion
We Court review a district court’s denial of permissive intervention and
intervention of right for abuse of discretion but applies a more stringent standard to
denials of intervention of right. Brody v. Spang, 957 F.2d 1108, 1115 (3d Cir. 1992). We
will reverse a district court’s determination on a motion to intervene of right if the court
“applied an improper legal standard or reached a decision that we are confident is
incorrect.” Id. (internal quotation marks and citation omitted).
A. Intervention of Right
Rule 24 provides:
(a) Intervention of Right. On timely motion, the court must permit anyone to intervene who:
(1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.
1 The District Court had jurisdiction to hear claims regarding civil rights deprivations under 28 U.S.C. §§ 1331, 1343(a)(3), and 1343 (a)(4). This Court has jurisdiction under 28 U.S.C. § 1291 over the District Court’s final decision denying Appellants’motion to intervene. McClune v. Shamah, 593 F.2d 482, 485 (3d Cir. 1979) (order denying intervention is considered final and appealable).
6

Case: 10-1908 Document: 003110490294 Page: 7 Date Filed: 04/05/2011
Fed. R. Civ. P. 24(a). A petitioner seeking to intervene of right “must establish that: (1) the application
for intervention is timely; (2) the applicant has a sufficient interest in the litigation; (3) the interest may be affected or impaired, as a practical matter, by the disposition of the action; and (4) the interest is not adequately represented by an existing party in the litigation.” In re Cmty. Bank of N. Va., 418 F.3d 277, 314 (3d Cir. 2005) (quoting Harris v. Pernsley, 820 F.2d 592, 596 (3d Cir. 1987)).2 The claimed interest in the litigation must be one that “is specific [to those seeking to intervene], is capable of definition, and will be directly affected in a substantially concrete fashion by the relief sought.” Kleissler v. U.S. Forest Service, 157 F.3d 964, 972 (3d Cir. 1998). “[T]he polestar for evaluating a claim for intervention is always whether the proposed intervenor’s interest is direct or remote.” Id.
An intervenor’s interest in the litigation need not be a legal one so long as the party “will be practically disadvantaged by the disposition of the action.” Id. at 970 (quoting 7C CHARLES ALLAN WRIGHT, ARTHUR MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 1908, at 301 (1986) (“The central purpose of the 1966 amendment was to allow intervention by those who might be practically disadvantaged by the disposition of the action and to repudiate the view, [under the former rule], that intervention must be limited to those who would be legally bound as a matter of res judicata.”). However, rather than merely showing some impact, “the
2 The District Court found that the application to intervene was timely, and this issue has not been raised on appeal.
7

Case: 10-1908 Document: 003110490294 Page: 8 Date Filed: 04/05/2011
applicant must demonstrate that there is a tangible threat to a legally cognizable interest to have the right to intervene.” Harris, 820 F.2d at 601 (citations omitted) (court should consider any “significant legal effect on the applicant’s interest,” such as “the stare decisis effect on the applicant’s rights” and whether “the contractual rights of the applicant may be affected by a proposed remedy.”).
Intervenors insist that their interest in remaining in their current institutional setting is clearly sufficient to warrant intervention. We agree with the District Court, however, that Intervenors’ interest in maintaining their current form of care is not directly in jeopardy in this litigation. The current parties have deliberately defined the class and the relief sought so that Intervenors’ right to choose institutional treatment would not be affected.
The District Court made its intent clear. The class it certified expressly excludes all current and future residents of ICFs/MR who oppose, or would at any relevant time in the future oppose, community placement.3 It therefore excludes Intervenors, and they will not be personally bound by anything that is decided in this litigation. It follows that, if the DPW should threaten in the future to coerce them into leaving their current
3 The Intervenors are critical of the class definition because they say it requires an inquiry into the mental state of class members. Whether that poses a problem for other purposes, it does not pose one in the context of the issues before us. It is sufficient for present purposes to hold that their current opposition to community placement currently excludes them from the class. If they hereafter are persuaded to drop that opposition, they will no longer be in a position to represent the interest they seek to defend here.
8

Case: 10-1908 Document: 003110490294 Page: 9 Date Filed: 04/05/2011
institutions, Intervenors would be free to file their own suit and litigate whether they have a legally enforceable right to remain in the institution where they currently reside.4
This does not end the matter, however. Intervenors insist that even if they “are not current or putative class members, their interest is likely to be affected as a practical matter by the outcome of the lawsuit because the relief sought by Plaintiffs is likely to result in closure of ICFs/MR.” Appellants’ Br. at 28. Intervenors do not suggest that there is a danger that any remedy afforded to Plaintiffs in this action will include a requirement that an ICF/MR be closed. Rather, they fear that budget constraints will cause the DPW to allocate its resources in a different manner if it is required by this suit to satisfy its obligations under the ADA and that this may result in its closing one or more ICFs/MR.
While it is, of course, possible that providing additional community placements will occasion some reallocation of the limited resources of the DPW, it is not possible to determine at this point whether that reallocation will result in the closing of one or more ICFs/MR, and we decline to speculate on that matter. It is sufficient to hold that any possible impact on Intervenors’ interest in maintaining their current institutional care is not the kind of direct impact that gives rise to a right to intervene. In virtually every suit successfully prosecuted against a governmental entity, the judgment will occasion some reallocation of limited public resources. Every competitor for those limited resources has an interest that potentially may be adversely affected by that reallocation. We have found
4 We express no view as to whether they have such a legally enforceable right. We assume, without deciding, that they do.
9

Case: 10-1908 Document: 003110490294 Page: 10 Date Filed: 04/05/2011
no case, however, suggesting that the interest of such a competitor justifies intervention in litigation addressing issues in which he or she has no other interest. If such a competitor believes that he or she has an enforceable right for the services of the public entity, he or she may bring his or her own suit.
Where a party has an interest in property over which the court has taken jurisdiction, and the party has an interest in “being heard with respect to the disposition of [a particular] fund[,] . . . such an interest is sufficient to support an applicant’s intervention as of right.” Mountain Top Condominium Ass’n v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, 368 (3d Cir. 1995). Here, the court has not taken control of DPW funds and Intervenors do not have a legal right to particular funds. They may have a right to certain benefits from the state, but not a right to a particular fund.
In Harris, we held that a District Attorney lacked the right to intervene in a suit seeking a cap on the prison population where the DA argued such a ceiling would limit his ability to carry out his duties as a law enforcement officer. 820 F.2d at 601. Because the DA did not administer the prison, and the consent decree placing a ceiling on the prison population would only tangentially affect his ability to prosecute, we held that he had no right to intervene. See Kleissler, 157 U.S. at 969-70. Similarly here, the relief sought by Plaintiffs - that the DPW offer a choice of community placement to ICF/MR patients who do not oppose such placement - will only tangentially affect the rights of
10

Case: 10-1908 Document: 003110490294 Page: 11 Date Filed: 04/05/2011
those who are opposed. Intervenors therefore are not entitled to intervene as their interests will not be directly affected by the relief sought. 5
IV. Because intervention of right is not available here, the District Court did not abuse its discretion in finding that Intervenors are also not entitled to permissive intervention. See Brody, 957 F.2d at 124 (“[I]f intervention of right is not available, the same reasoning would indicate that it would not be an abuse of discretion to deny permissive intervention.”).
V. For the foregoing reasons, we will affirm the District Court’s denial of Intervenors’ application to intervene permissively and of right.
5 Because we conclude that Intervenors lack sufficient interest to intervene, we do not address their contention that the DPW is an inadequate representative.
11

 
 Case: 11-3685 Document: 003111104758 Page: 1 Date Filed: 12/12/2012
PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________
Nos. 11-3684 and 11-3685 _______________
FRANKLIN BENJAMIN, by and through his next friend, Andre Yock; RICHARD GROGG and FRANK EDGETT, by
and through their next friend, Joyce McCarthy; SYLVIA BALDWIN, by and through her next friend, Shirl Meyers; ANTHONY BEARD, by and through his next friend, Nicole
Turman, on behalf of themselves and all others similarly situated
v.
DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA; SECRETARY OF PUBLIC WELFARE OF THE COMMONWEALTH OF
PENNSYLVANIA
CRAIG SPRINGSTEAD, by and through his father and guardian, Bertin Springstead;
MARIA MEO, by and through her mother and guardian, Grace Meo;
DANIEL BASTEK, by and through his father and guardian, John Bastek;
MICHAEL STORM, by and through his guardian, Polly Spare;
BETH ANN LAMBO,

Case: 11-3685 Document: 003111104758 Page: 2 Date Filed: 12/12/2012
by and through her father and guardian, Joseph Lambo; RICHARD KOHLER,
by and through his sister and guardian, Sara Fuller; MARIA KASHATUS,
by and through her father and guardian, Thomas Kashatus; WILSON SHEPPARD,
by and through his brother and next friend Alfred Sheppard, Appellants in No. 11-3684 *(Pursuant to Fed. R. App. 12(a)) DIANE SOLANO, by and through her brother and guardian
Carl A. Solano, Appellant in No. 11-3685 *(Pursuant to Fed. R. App. 12(a))
________________ On Appeal from the United States District Court
for the Middle District of Pennsylvania (D.C. Civil No. 1-09-cv-01182)
District Judge: Hon. John E. Jones, III _______________
Argued October 3, 2012 BEFORE: FUENTES, FISHER and COWEN, Circuit Judges
(Filed: December 12, 2012)
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Case: 11-3685 Document: 003111104758 Page: 3 Date Filed: 12/12/2012
Benjamin J. Hoffart, Esq. Sidley Austin 787 Seventh Avenue New York, NY 10019
Counsel for Appellants in No. 11-3684
Carl A. Solano, Esq. (Argued) Schnader, Harrison, Segal & Lewis 1600 Market Street, Suite 3600 Philadelphia, PA 19103
Counsel for Appellant in No. 11-3685
Nancy S. Rappaport, Esq. DLA Piper 1650 Market Street One Liberty Place, Suite 4900 Philadelphia, PA 19103
Counsel for Amicus Curiae VOR, Inc. for Appellant in No. 11-3685
Robert W. Meek, Esq. (Argued) Kelly L. Darr, Esq. Disability Rights Network of Pennsylvania 1315 Walnut Street, Rm. 500 Philadelphia, PA 19107
Counsel for Appellees Franklin Benjamin, Rich Grogg, Frank Edgett, Sylvia Baldwin,
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and Anthony Beard
Doris M. Leisch, Esq. (Argued) Pennsylvania Department of Public Welfare Office of General Counsel 801 Market Street, Suite 6092 Philadelphia, PA 19107
Counsel for Appellees Department of Public Welfare of the Commonwealth of Pennsylvania and Secretary of Public Welfare of the Commonwealth of Pennsylvania
Mark L. Gross, Esq. United States Department of Justice Civil Rights Division, Appellate Section Room 3722 P.O. Box 14403 Ben Franklin Station Washington, DC 20044
Nathaniel S. Pollock, Esq. United States Department of Justice Civil Rights Division Room 3716 950 Pennsylvania Avenue, N.W. Washington, DC 20530
Counsel for Amicus Curiae United States of America for Appellees
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Case: 11-3685 Document: 003111104758 Page: 5 Date Filed: 12/12/2012
Jeremy D. Heep, Esq. Pepper Hamilton 18th & Arch Streets 3000 Two Logan Square Philadelphia, PA 19103
Counsel for Amicus Curiae The Arc of Pennsylvania for Appellees
_______________
OPINION _______________
COWEN, Circuit Judge.
Plaintiffs-Appellees are individuals with “mental retardation” who reside in intermediate care facilities operated by Defendants-Appellees Department of Public Welfare of the Commonwealth of Pennsylvania and the Secretary of Public Welfare of the Commonwealth of Pennsylvania. By and through their respective next friends, they brought this current class action in the United States District Court for the Middle District of Pennsylvania, alleging that Defendants have failed to offer community services to them and other similarly situated individuals in violation of the integration mandates of the Americans with Disabilities Act and the Rehabilitation Act. In turn, Appellants are several intermediate care facility residents who, by and through their own guardians or next friends,
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have continued to oppose community placement and, among other things, have sought to intervene in this case. This matter has already been before this Court in a prior appeal, and we ultimately affirmed the District Court‟s denial of a motion to intervene filed by all but one of the current Appellants in connection with the merits stage of this case.
At this juncture, Appellants specifically appeal from the District Court‟s order denying the motions to intervene that they filed in connection with the remedy stage of this litigation as well as from the District Court‟s subsequent order granting final approval to the settlement agreement between Plaintiffs and Defendants. We conclude that the District Court did abuse its discretion by denying intervention as of right pursuant to Federal Rule of Civil Procedure 24(a)(2). Accordingly, we will vacate the District Court‟s intervention order insofar as it denied Appellants‟ motions to intervene as of right in the remedy stage of this litigation as well as its order granting final approval to the parties‟ settlement agreement. We, in turn, will remand this matter to the District Court with specific instructions to grant Appellants‟ motions to intervene as of right in the remedy stage of this litigation as well as to permit Appellants, as proper intervenors, to challenge the settlement agreement and to seek decertification of the class.
I.
As we observed in our prior ruling, the United States Supreme Court established in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), “that it is a violation of the
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[Americans with Disabilities Act (“ADA”)], the [Rehabilitation Act (“RA”)], and their implementing regulations to force developmentally disabled patients to reside in institutions when they are able and willing to live in a manner more fully integrated into the community.” Benjamin ex rel. Yock v. Dep‟t of Pub. Welfare, 432 F. App‟x 94, 95 (3d Cir. 2011). “At the same time, Olmstead and the regulations make clear that „community based treatment [cannot] be imposed on patients who do not desire it.‟” Id. (quoting Olmstead, 527 U.S. at 602).
The named Plaintiffs-Appellees in this class action are five individuals with “mental retardation” who are institutionalized in intermediate care facilities for persons with “mental retardation” (“ICFs/MR”)1 operated by Defendants-Appellees Department of Public Welfare of the Commonwealth of Pennsylvania and the Secretary of Public Welfare of the Commonwealth of Pennsylvania (collectively “DPW”). Franklin Benjamin, Richard Grogg, Frank Edgett, Sylvia Baldwin, and Anthony Beard—by and through their respective next friends and represented by attorneys from the Disability Rights Network of Pennsylvania (“DRN”)— specifically alleged in their amended complaint that DPW has violated the ADA and the RA by failing “to offer and provide
1 We note that the mental health community has been working to change the terminology used in this context from terms such as “mental retardation” to terms like “intellectual disabilities.” Following the example set, inter alia, by the definition of the class as well as our own prior ruling in this case, we generally use the term “mental retardation.”
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Plaintiffs with the opportunity to receive services in integrated, community settings that are most appropriate settings to meet their needs.” Benjamin ex rel. Yock v. DPW, 267 F.R.D. 456, 459 (M.D. Pa. 2010) (citation omitted). In their class action allegations, Plaintiffs claimed that “there are approximately 1,272 individuals who reside in Pennsylvania‟s five state-operated ICFs/MR.” (JA79.)
Plaintiffs filed an unopposed motion to certify a class under Federal Rule of Civil Procedure 23(b)(2). On September 2, 2009, the District Court entered an order granting this unopposed motion and certifying the following class: “All persons who: (1) currently or in the future will reside in on [sic] of Pennsylvania‟s state-operated intermediate care facilities for persons with mental retardation; (2) could reside in the community with appropriate services and supports; and (3) do not or would not oppose community placement.” (JA39.) DPW, for its part, filed an unsuccessful motion to dismiss.
The individual Appellants are also ICF/MR residents. By and through their guardians or next friends, Appellants have continued to oppose community placement and have sought to participate in this litigation. On November 10, 2009, eight of the nine current Appellants—Craig Springstead, Maria Meo, Daniel Bastek, Michael Storm, Beth Ann Lambo, Richard Kohler, Maria Kashatus, and Wilson Sheppard (who was originally a Plaintiff in this action)—
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moved to intervene (“Springstead Intervenors”).2 The existing parties opposed any intervention, and the District Court denied this initial intervention motion in a memorandum and order entered on March 10, 2010.
According to the District Court, the Springstead Intervenors met the applicable timeliness requirement but then failed to satisfy the remaining prerequisites for intervention as of right pursuant to Federal Rule of Civil Procedure 24(a)(2) (i.e., a sufficient interest in the litigation, the interest may be affected or impaired as a practical matter by the disposition of the action, and the interest is not adequately represented by an existing party). It also concluded that permissive intervention under Federal Rule of Civil Procedure 24(b) was unwarranted.
The Springstead Intervenors appealed. They were supported in this appeal by current Appellant Diane Solano (by and through her brother and guardian, Carl Solano, Esquire), who appeared as an Amicus.
While this appeal was pending, the existing parties filed cross-motions for summary judgment. On January 27, 2011, the District Court granted Plaintiffs‟ motion with respect to the underlying liability of DPW. See Benjamin ex rel. Yock v. DPW, 768 F. Supp. 2d 747, 748-57 (M.D. Pa. 2011). Specifically, it entered judgment in favor of Plaintiffs and all others similarly situated and declared that DPW was
2 The Springstead Intervenors also originally included Richard Clarke, but he subsequently died.
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still not in compliance with the integration mandates established by the ADA and the RA with respect to these individuals. Acknowledging the Commonwealth‟s budgetary constraints and DPW‟s own limited resources, the District Court stated that the DPW cannot continue its practice of unnecessary segregation. However, the District Court did not believe it was in a position to issue the requested injunction “given the need for extensive detail therein and eventual oversight for any such relief provided.” Id. at 757. It therefore stated that this action “will remain open until determination of the proper remedy” and scheduled a conference call to address the need for further submissions as well as for a possible hearing on the question of injunctive relief. Id. The parties were expressly encouraged to return to mediation armed with “this mandate” and attempt “to formulate a resolution that implements a realistic plan that fully complies with the ADA and RA.” Id. at 757 n.12.
In a non-precedential opinion filed on April 5, 2011, this Court disposed of the appeal filed by the Springstead Intervenors. See Benjamin ex rel. Yock v. DPW, 432 F. App‟x 94, 96-99 (3d Cir. 2011). Generally applying an abuse of discretion standard of review, we affirmed the District Court‟s denial of both intervention as of right and permissive intervention.
Initially, Plaintiffs “recognize that „Olmstead requires that patients eligible and desirious of community placement be discharged into community-based programs [only] if placement can be reasonably accommodated, taking into account the resources of the state and the needs of other
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persons in its care.‟” Id. (quoting Frederick L. v. DPW, 422 F.3d 151, 156-57 (3d Cir. 2005)). “By way of remedy,” Plaintiffs sought an injunction directing DPW:
. . . (1) to maintain a “Planning List that consists of all state ICF/MR residents who have been identified as not opposed to discharge to community services,” (2) to promptly place “on the Planning List the named Plaintiffs and any other state ICF/MR residents identified by the ICF/MR Facility Directors as having affirmatively expressed their desire to be discharged to the community,” (3) to question “ICF/MR residents and/or their involved family or guardians” at least annually regarding their current preference in order to keep the Planning List current, and (4) beginning in fiscal year 2011-12, to “develop and implement a viable integration plan that provides community services to at least 100 individuals on the Planning List annually for each of the first three years” and for at least 75 individuals from that list thereafter until all on the list have been discharged.
Id. at 96-97 (citation omitted). We further noted that summary judgment was entered in favor of Plaintiffs “on the liability issue” and that “[t]he remedy issue remains before [the District Court].” Id. at 97.
With respect to intervention as of right under Rule
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24(a)(2), the Springstead Intervenors specifically “insist that their interest in remaining in their current institutional setting is clearly sufficient to warrant intervention.” Id. at 98. We, however, agreed with the District Court “that Intervenors‟ interest in maintaining their current form of care is not directly in jeopardy in this litigation.” Id. In other words:
The current parties have deliberately defined the class and the relief sought so that Intervenors‟ right to choose institutional treatment would not be affected.
The District Court made its intent clear. The class it certified expressly excludes all current and future residents of ICFs/MR who oppose, or would at any relevant time in the future oppose, community placement. It therefore excludes Intervenors, and they will not be personally bound by anything that is decided in this litigation. It follows that, if the DPW should threaten in the future to coerce them into leaving their current institutions, Intervenors would be free to file their own suit and litigate whether they have a legally enforceable right to remain in the institution where they currently reside.
Id. (footnotes omitted). We observed in a footnote that the Springstead Intervenors were critical of the class definition because it purportedly “requires an inquiry into the mental state of class members.” Id. at 98 n.3. Nevertheless, this
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contention, regardless of “[w]hether [it] poses a problem for other purposes,” did not pose one in the current context. Id. “It is sufficient for present purposes to hold that their current opposition to community placement currently excludes them from the class. If they hereafter are persuaded to drop that opposition, they will no longer be in a position to represent the interest they seek to defend here.” Id. We likewise refused to express an opinion as to whether the Springstead Intervenors “have a legally enforceable right to remain in the institution where they currently reside,” id. at 98, and, instead, merely “assume, without deciding, that they do,” id. at 98 n.4.
Having determined that the Springstead Intervenors were not class members, we then considered their alternative theory that “„their interest is likely to be affected as a practical matter by the outcome of the lawsuit because the relief sought by Plaintiffs is likely to result in closure of ICFs/MR.‟” Id. at 98 (citation omitted). While they did not suggest a danger that “any remedy afforded to Plaintiffs in this action will include a requirement that an ICF/MR be closed,” the Springstead Intervenors did fear “that budget constraints will cause the DPW to allocate its resources in a different manner if it is required by this suit to satisfy its obligations under the ADA and that this may result in its closing one or more ICFs/MR.” Id. We, however, rejected this theory:
While it is, of course, possible that providing additional community placements will occasion some reallocation of the limited
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resources of the DPW, it is not possible to determine at this point whether that reallocation will result in the closing of one or more ICFs/MR, and we decline to speculate on that matter. It is sufficient to hold that any possible impact on Intervenors‟ interest in maintaining their current institutional care is not the kind of direct impact that gives rise to a right to intervene. In virtually every suit successfully prosecuted against a governmental entity, the judgment will occasion some reallocation of limited public resources. Every competitor for those limited resources has an interest that potentially may be adversely affected by that reallocation. We have found no case, however, suggesting that the interest of such a competitor justifies intervention in litigation addressing issues in which he or she has no other interest. If such a competitor believes that he or she has an enforceable right for the services of the public entity, he or she may bring his or her own suit.
Where a party has an interest in property over which the court has taken jurisdiction, and the party has an interest in “being heard with respect to the disposition of [a particular] fund[,] . . . such an interest is sufficient to support an applicant‟s intervention as of right.” Mountain Top Condominium Ass‟n v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, 368
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(3d Cir. 1995). Here, the court has not taken control of DPW funds and Intervenors do not have a legal right to particular funds. They may have a right to certain benefits from the state, but not a right to a particular fund.
In [Harris v. Pernsley, 820 F.2d 592 (3d Cir. 1987)], we held that a District Attorney lacked the right to intervene in a suit seeking a cap on the prison population where the DA argued such a ceiling would limit his ability to carry out his duties as a law enforcement officer. 820 F.2d at 601. Because the DA did not administer the prison, and the consent decree placing a ceiling on the prison population would only tangentially affect his ability to prosecute, we held that he had no right to intervene. See [Kleissler v. U.S. Forest Serv., 157 F.3d 964, 969-70 (3d Cir. 1998)]. Similarly here, the relief sought by Plaintiffs— that the DPW offer a choice of community placement to ICF/MR patients who do not oppose such placement—will only tangentially affect the rights of those who are opposed. Intervenors therefore are not entitled to intervene as their interests will not be directly affected by the relief sought.
Id. at 98-99 (footnote omitted).
Because we ultimately concluded that “Intervenors
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lack sufficient interest to intervene,” this Court did not address “their contention that the DPW is an inadequate representative.” Id. at 99 n.5.
On May 19, 2011, Plaintiffs and DPW finalized a proposed “Settlement Agreement.” This fifteen-page document contains several significant components, including the establishment of: (1) an annual assessment process to create, maintain and update a “Planning List” consisting of “all state ICF/MR residents who have been identified as not opposed to discharge to community placement” (JA470); (2) educational, training, and outreach programs about community placement; (3) a viable “Integration Plan” providing community placements to a minimum number of ICF/MR residents on the Planning List in each fiscal year until each and every resident on the Planning List has been discharged; and (4) a number of budgetary steps designed to facilitate compliance with this Integration Plan.
The District Court preliminarily approved the Settlement Agreement on May 27, 2011. Notice was then disseminated to all ICF/MR residents, guardians, and involved family members. The District Court subsequently received, inter alia, at least one objection from an ICF/MR resident and 101 objections from guardians or involved family members of ICF/MR residents. Plaintiffs filed an unopposed motion for final approval, which was supported, inter alia, by the federal government.
In contrast, the Springstead Intervenors and Solano, in addition to submitting their own objections, filed separate
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motions to intervene. The District Court formally denied Appellants‟ respective intervention motions in an August 16, 2011 order. According to the District Court, it “thoroughly considered the most effective procedure for the conduct of the August 22, 2011 [fairness] hearing and the Objectors‟ requests to actively participate.” (JA34.) However, it determined that there was no cause to honor Appellants‟ request to hold a separate hearing on “that matter.” (Id.) “Because it is the parties‟ burden to demonstrate at the hearing that the Proposed Settlement is fair, adequate, and reasonable, we shall take testimony and fact evidence presented only by the parties.” (Id.) The District Court also stated that “we shall fully consider the objections in the record and will further allow” Appellants, through one attorney designated by them, to question the respective witnesses. (Id.) Indicating that it thereby was partially granting the relief sought by Appellants “by allowing them to reasonably participate” in the fairness hearing, the District Court incorporated by reference “our March 10, 2010 Order denying the Springstead Intervenors‟ original Motion to Intervene, which was affirmed by the Third Circuit.” (Id.) It therefore went on to “find that full intervention is unwarranted and improper.” (Id.)
The fairness hearing went ahead as scheduled. The existing parties presented testimony from three witnesses: Pamela Kuhno, Director for DPW‟s Division for ICF/MR Programs, Patricia McCool, Acting Director of DPW‟s Bureau of Supports, and Colleen Sassaman, a Facility Advocate at the Selinsgrove State Center who (like other ICF/MR Facility Advocates) is actually employed by DRN.
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Mr. Solano cross-examined these witnesses. The District Court also heard from several family members, and Mr. Solano was permitted to present arguments on Appellants‟ behalf.
On September 2, 2011, the District Court ultimately approved the settlement as fair, reasonable, and adequate (and also awarded attorney fees and costs to Plaintiffs). See Benjamin ex rel. Yock v. DPW, 807 F. Supp. 2d 201, 203214 (M.D. Pa. 2011). However, in the process, it did express some concerns of its own. In particular, the District Court advised the parties to implement the settlement with caution due to certain doubts arising out of the protocol and questionnaire forms developed by the parties, and it further indicated that the parties might wish to revise the protocols at issue.
The Springstead Intervenors and Solano filed separate notices of appeal. They also moved for a stay pending resolution of their appeals of:
. . . that portion of the [District Court‟s] September 2, 2011 decision that permits relocation of any State Center resident who has been placed on the Planning List because (a) he or she was deemed to have expressed “No preference” because (in the words of the assessment protocol) he or she failed to provide input in any manner than can be discerned in response to the questions” on the protocol used to implement the settlement, and (b) no
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guardian or involved family member could speak on the resident‟s behalf, either because no such guardian or family member exists or because DPW was unable to contact that person and therefore deemed the person to have “No preference” regarding where the resident should live.
(JA1520-JA1521.) The District Court denied this motion in a December 19, 2011 order, finding that Appellants failed to show either a likelihood of success on appeal or a likelihood of irreparable injury. According to the District Court, its earlier language regarding the implementation procedures and protocol was nothing more than mere dicta. Meanwhile, the two appeals filed by Appellants were consolidated. After we heard oral argument, Appellants filed another motion for a partial stay with this Court. Over Appellees‟ opposition, we granted this motion on October 25, 2012.
This Court has also received three amicus briefs. VOR, Inc., together with ninety-two individuals who are members of this disability rights advocacy organization (including several guardians and family members who had submitted objections to the Settlement Agreement), filed a brief in support of Appellants and reversal. On the other hand, the federal government and, another advocacy organization, the Arc of Pennsylvania, submitted briefs in support of Appellees and affirmance.
II.
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The District Court had jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), and 1343(a). We have appellate jurisdiction under 28 U.S.C. § 1291
This Court reviews “a district court‟s denial of permissive intervention and intervention of right for abuse of discretion but applies a more stringent standard to denials of intervention of right.” Benjamin, 432 F. App‟x at 97 (citing Brody v. Spang, 957 F.2d 1108, 1115 (3d Cir. 1992)). “We will reverse a district court‟s determination on a motion to intervene of right if the court „applied an improper standard or reached a decision that we are confident is incorrect.‟” Id. (quoting Brody, 957 F.2d at 1115).
III.
Appellants contend that the District Court committed reversible error by certifying the class and granting final approval to the Settlement Agreement. Appellees just as vigorously defend class certification and the fairness of their Settlement Agreement. However, the current appeals present the following threshold question: whether or not the District Court abused its discretion by denying Appellants‟ motions to intervene as of right filed in connection with the remedy stage of this complex and important case and thereby to challenge, as intervenors, the propriety of both the Settlement Agreement and class certification. Taking into account the basic requirements for intervention as of right under Rule 24(a)(2), the specific circumstances of this case, and the fact that the District Court actually relied on its liability-stage analysis of these requirements to deny Appellants‟ remedy-
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stage motions to intervene, we ultimately conclude that the District Court did abuse its discretion. Simply put, we believe that Appellants are entitled to participate as intervenors in the remedy stage of this case and—as intervenors—should thereby have the opportunity to challenge the parties‟ Settlement Agreement and to seek decertification of the underlying class. We, therefore, will vacate the District Court‟s order of August 16, 2011 insofar as it denied Appellants‟ motions to intervene as of right in the remedy stage of this litigation. We will also vacate the District Court‟s September 2, 2011 order granting final approval of the Settlement Agreement because Appellants should have been allowed to participate as intervening parties. We, in turn, will remand this matter to the District Court with specific instructions to grant Appellants‟ motions to intervene as of right in the remedy stage of this litigation as well as to permit Appellants, as proper intervenors, to challenge the Settlement Agreement and to seek decertification of the class. On the other hand, we express no opinion as to whether or not the Settlement Agreement (or any other settlement that may be reached in this proceeding) should ultimately be approved or disapproved—or whether or not the class itself should be decertified.
A. Intervention As Of Right Under Rule 24(a)(2)
As we recognized in our previous ruling in this proceeding, Rule 24(a)(2) provides that
(a) Intervention of Right. On timely motion, the court must permit anyone to intervene who:
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. . . .
(2) claims an interest relating to the property or transaction that is the subject of the action and is so situated that disposing of the action may as a practical matter impair or impede the movant‟s ability to protect its interest, unless existing parties adequately represent that interest.
A movant seeking to intervene under Rule 24(a)(2) must satisfy the following requirements: “(1) the application for intervention is timely; (2) the applicant has a sufficient interest in the litigation; (3) the interest may be affected or impaired, as a practical matter, by the disposition of the action; and (4) the interest is not adequately represented by an existing party in the litigation.” In re Cmty. Bank of N. Va., 418 F.3d 277, 314 (3d Cir. 2005) (quoting Harris v. Pernsley, 820 F.2d 592, 596 (3d Cir. 1987)).
Appellants moved to intervene after they had received notice of the Settlement Agreement signed by the parties. While permitting a limited degree of participation at the fairness hearing, the District Court formally denied their remedy-stage motions to intervene in a short order. Significantly, it did so without specifically applying (or even mentioning) the prerequisites for intervention as of right. Instead, the District Court simply incorporated by reference its earlier order denying the original liability-stage motion to intervene filed by the Springstead Intervenors and referenced
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the fact that this Court affirmed its order. We likewise begin our own analysis with our prior ruling in this case, but we do not stop there.
1. Our Prior Ruling and Class Membership
Not surprisingly, Appellees place particular emphasis on our earlier intervention decision and turn to the law of the case doctrine. “„[W]hen a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.‟” In re Pharmacy Benefit Managers Antitrust Litig., 582 F.3d 432, 439 (3d Cir. 2009) (quoting Arizona v. California, 460 U.S. 605, 618 (1983)). In the absence of extraordinary circumstances, this Court should generally adhere to its own prior rulings arising out of the same case. See, e.g., id.
With respect to this narrow issue of class membership, we agree with Appellees. Appellants insist that they are (or have become so since this Court‟s prior opinion) members of the class certified by the District Court. However, their arguments were previously—and unsuccessfully—advanced before both the District Court and this Court. We observed that “the class [that the District Court] certified expressly excludes all current and future residents of ICFs/MR who oppose, or would at any relevant time in the future oppose, community placement” and that “it therefore excludes Intervenors.” Benjamin, 432 F. App‟x at 98 (footnote omitted). Appellants have continued to oppose community placement, and the definition of the class itself has not changed. Likewise, we do not believe that our prior
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conclusion with respect to class membership should be altered.
Appellees also argue that, because Appellants had urged this Court to allow intervention based on the class definition‟s alleged impropriety (and had relied on the same basic grounds that they now raise in the present appeals), we thereby litigated and rejected their class certification challenge and that our prior determination disposes of Appellants‟ current challenge. However, we simply decided that the District Court did not abuse its discretion by denying intervention. We thereby did not actually rule on the specific question of whether the class itself should or should not be decertified. Likewise, as we explain in more detail below, we rendered our ruling in connection with the liability—as opposed to the remedy—stage of this case. Although we now conclude that the District Court committed reversible error as to intervention under Rule 24(a)(2) with respect to the remedy stage of this case, we similarly need not—and do not decide—whether the class itself should (or should not) be decertified.
2. Timeliness
The District Court did not address the timeliness of Appellants‟ remedy-stage motions to intervene. In its initial liability-stage decision (which it incorporated by reference), it expressly found that the Springstead Intervenors‟ first motion to intervene was filed in a timely fashion, and, in turn, its timeliness finding was not raised on appeal. Appellees concede that Appellants‟ subsequent motions were filed in a
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timely fashion insofar as Appellants sought to challenge the Settlement Agreement. However, they go on to argue that the motions were untimely with respect to class certification. We believe that Appellants do satisfy this timeliness requirement.
“To determine whether the intervention motion is timely, we have listed three factors for courts to consider: (1) the stage of the proceeding; (2) the prejudice that delay may cause the parties; and (3) the reason for the delay.” Mountain Top, 72 F.3d at 369 (citing In re Fine Paper Antitrust Liquidation Litig., 695 F.2d 494, 500 (3d Cir. 1982)). There is a general reluctance to dispose of a motion to intervene as of right on untimeliness grounds because the would-be intervenor actually may be seriously harmed if not allowed to intervene. See, e.g., id. The delay should be measured from the time the proposed intervenor knows or should have known of the alleged risks to his or her rights or the purported representative‟s shortcomings. See, e.g., United Airlines, Inc. v. McDonald, 432 U.S. 385, 394 (1977). “The mere passage of time, however, does not render an application untimely.” Mountain Top, 72 F.3d at 369 (citations omitted).
The Springstead Intervenors initially moved to intervene on November 10, 2009, a relatively short period of time after the District Court granted Plaintiffs‟ unopposed motion and certified the class on September 2, 2009. They, however, were unsuccessful before both the District Court and (together with Solano as Amicus) on appeal. Given the law of the case doctrine, it would have been futile for Appellants to file yet another motion to intervene until circumstances changed. They then filed the instant
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intervention motions after the liability stage of the case was finished and the remedy stage began. In particular, Ms. Solano moved to intervene on July 28, 2011, and the Springstead Intervenors did so on August 2, 2011. These motions were filed soon after Appellants received (together with other ICF/MR residents, guardians, and involved family members) notice of the Settlement Agreement negotiated by Appellees—which had been preliminarily approved by the District Court on May 27, 2011 and which was to be the subject of a fairness hearing scheduled for August 22, 2011. Appellants also submitted objections to the Settlement Agreement and filed their motions to intervene before the objection deadline of August 2, 2011. Although we ultimately have concluded to the contrary, Appellants could have believed that, given these circumstances, they were now members of the class certified by the District Court. More significantly, Appellants, even as non-class members, now had more than adequate reasons to believe that—because of the terms of the Settlement Agreement itself—they satisfy the remaining requirements for intervention as of right with respect to this remedy stage of this proceeding. In fact, we actually conclude that they do meet these requirements.
We similarly note that the class definition in this case is quite open-ended. Individuals—like Appellants themselves—could very well become members if, for instance, ICF/MR residents, their guardians, or their involved family members no longer oppose community placement. The Settlement Agreement itself establishes, among other things, an annual and mandatory assessment process to determine whether the residents (and their guardians and
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involved family members) no longer oppose community placement. Because the parties‟ Settlement Agreement thereby provides a mechanism by which new members will continuously be identified and the class composition can— and will likely—change, we believe that the definition of the class does, in fact, affect the fairness of the Settlement Agreement.
Likewise, in certifying a class under Rule 23(b)(2), the cohesiveness of the class must be considered with respect to whether the relief is appropriate for all class members. See, e.g., Gates v. Rohm & Haas Co., 655 F.3d 255, 264 (3d Cir. 2011) (“The „disparate factual circumstances of class members‟ may prevent a class from being cohesive and, therefore, make the class unable to be certified under Rule 23(b)(2).” (quoting Carter v. Butz, 479 F.2d 1084, 1089 (3d Cir. 1973))); Neal ex rel. Kanter v. Casey, 43 F.3d 48, 59 (3d Cir. 1994) (“What is important is that the relief sought by the named plaintiffs should benefit the entire class.”). The fairness of the Settlement Agreement appears to be intertwined with the cohesiveness requirement because the Settlement Agreement constitutes the relief that Plaintiffs ultimately obtained in this litigation. Appellants‟ objections to certification therefore are properly considered as a component of their objections to the Settlement Agreement itself.
Insofar as Appellees agree that the intervention motions were filed in a timely fashion with respect to the Settlement Agreement, we do not see how they could suffer any real prejudice if Appellants‟ attempt to intervene with
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respect to the closely related issue of class certification was also considered. Indeed, “[e]ven after a certification order is entered, the judge remains free to modify it in the light of subsequent developments in the litigation.” General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982) (footnote omitted).
3. Interest and Disposition’s Effect on Interest
In our previous opinion in this case, we affirmed the District Court‟s denial of intervention “[b]ecause we conclude that Intervenors lack sufficient interest to intervene.” Benjamin, 432 F. App‟x at 99 n.5. We specifically observed that “[t]he claimed interest in the litigation must be one that „is specific [to those seeking to intervene], is capable of definition, and will be directly affected in a substantially concrete fashion by the relief sought.‟” Id. at 98 (quoting Kleissler, 157 F.3d at 972). The “„polestar‟” for intervention is “„whether the proposed intervenor‟s interest is direct or remote.‟” Id. (quoting Kleissler, 157 F.3d at 972). A proposed intervenor‟s interest need not be a legal interest, provided that he or she “„will be practically disadvantaged by the disposition of the action.‟” Id. at 98 (quoting Kleissler, 157 F.3d at 970). “However, rather than merely showing some impact, „the applicant must demonstrate that there is a tangible threat to a legally cognizable interest to have the right to intervene.‟” Id. (quoting Harris, 820 F.2d at 601).
Furthermore, proposed intervenors need not possess an interest in each and every aspect of the litigation. See, e.g., Mountain Top, 72 F.3d at 368. Instead, “[t]hey are entitled to
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intervene as to specific issues so long as their interest in those issues is significantly protectable.” Id. (citations omitted). We therefore have recognized that “it is appropriate in certain cases to conduct a two-step examination, separately evaluating whether the applicant has a right to intervene at the merits stage and whether he or she may intervene to participate in devising the remedy.” Brody, 957 F.2d at 1116 (citing Harris, 820 F.2d at 599). In the end, we conclude that this is one of those cases.
In our prior ruling, we did make some references to the relief requested by Plaintiffs. However, these statements were made in a specific context—the merits stage of this complex case. We accordingly observed that the District Court entered summary judgment in favor of Plaintiffs “on the liability issue” following the filing of the Springstead Intervenors‟ appeal and that “[t]he remedy issue remains before it.” Benjamin, 432 F. App‟x at 97. In fact, the District Court explicitly refused to dispose of this “remedy issue” in its summary judgment ruling, explaining that it was not in a position to issue the injunction requested by Plaintiffs “given the need for extensive detail therein and eventual oversight for any such relief provided.” Benjamin, 768 F. Supp. 2d at 757. It also referred to the Commonwealth‟s “budgetary constraints” and the DPW‟s own “limited resources.” Id. Scheduling a conference call to address the need for further submissions as well as a possible hearing on the extent of injunctive relief, the District Court even encouraged the parties to return to mediation and formulate “a realistic plan that fully complies with the ADA and RA.” Id. at 757 n.12.
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Considering the terms of the Settlement Agreement entered by Appellees, we ultimately determine that Appellants possess “a sufficient interest” in the remedy stage of the litigation and that their “interest may be affected or impaired as a practical matter” by the disposition of this distinct stage of the litigation. Simply put, there are several components of the Settlement Agreement reached by the parties (and ultimately approved by the District Court after it denied Appellants‟ motions to intervene) that may affect or impair the protectable interests of Appellants themselves as well as other ICF/MR residents, guardians, and involved family members. We also note that Appellants‟ interests in this stage of this complex yet important case—and the possible effects of the disposition of this stage on their interests—extend to the District Court‟s underlying class definition. Just like the actual class members, they may be affected by the Settlement Agreement and, among other things, appear to be in “the best position to apprise the court of any unforeseen or undisclosed impact that the class definition may have on its evaluation of [a settlement agreement].” Ligas ex rel. Foster v. Maram, No. 05 C 4331, 2010 WL 1418583, at *6 (N.D. Ill. Apr. 7, 2010); see also, e.g., General Tel. Co., 457 U.S. at 160 (stating that certification order may be modified in light of subsequent developments).
Initially, we must not overlook the specific characteristics of the ICF/MR residents—as well as their guardians and involved family members. In short, this case implicates the health, safety, and welfare of more than a thousand highly vulnerable individuals. For instance, as
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DPW has closed ICFs/MR around the Commonwealth, it has moved residents into community placements. More than three-fourths of all remaining ICF/MR residents are diagnosed as having profound “mental retardation,” and many residents have other disabilities as well. For example, Ms. Solano has a mental age at or below one year, is non-verbal, is incapable of caring for herself or understanding more than the simplest commands, and thereby needs constant aroundthe-clock care. Likewise, her condition stems from Down‟s Syndrome, and, like other older individuals with Down‟s Syndrome, she has early stages of dementia together with a broad range of physical ailments. According to Appellants, 59% of all residents are non-verbal, nearly 50% are unable to walk, 56% have seizure disorders, 27% have cerebral palsy, 26% have autism, 23% are visually impaired, and 16% require a feeding tube. Many residents, in turn, have lived at these facilities for several decades. Close relationships have often developed between residents and staff members. For instance, at least one ICF/MR resident calls staff members “Mommy.”
The ICF/MR residents are not the only individuals who have aged—so have their closest family members. Because, among other things, parents have passed away, there are some residents who have no close relatives involved in their care. Therefore, it appears that 82% of all residents have no appointed guardian. On the other hand, approximately 80% of the residents do apparently have either a guardian or, at least, an involved family member.
Turning to the Settlement Agreement negotiated by the
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parties and approved by the District Court, we begin by observing that it subjects Appellants and all other ICF/MR residents, guardians, and involved family members to an annual—and mandatory—assessment process. DPW specifically agreed to create, maintain, and update a “Planning List” consisting of “all state ICF/MR residents who have been identified as not opposed to discharge to community placement.” (JA470.) Specifically, DPW “will assess opposition to discharge by state ICF/MR residents and their involved families or guardians no later than September 30, 2011, and at least annually thereafter.” (Id.) “[T]he state ICF/MR resident‟s social worker or Community Transition Specialist, or both, together with the Facility Advocate, will determine whether the state ICF/MR resident should be placed on the State ICF/MR Planning List based on discussions with the resident and involved family or guardians to assess their position as to community placement.” (Id.) Evidently, each and every ICF/MR resident, guardian, and involved family member has been required to undergo these reviews, and there is no mechanism for opting out of this ongoing procedure. We also note that the initial assessments were completed by September 2011, resulting in 238 residents ending up on the Planning List.
It is uncontested that the Facility Advocates are employees of DRN, the organization that has represented Plaintiffs throughout the course of this litigation. In cases of disagreement, the Facility Director makes the final decision, but he or she must do so based, inter alia, on interviews with the Facility Advocate. Furthermore, Appellees acknowledge that the Facility Advocates, as “generally passive observers,”
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do “occasionally provide input to answer questions or to correct gross misunderstandings (such as that the Agreement requires institutional closures).” (Appellees‟ Brief at 62.) In turn, one of the objectors (Kenneth Myers, who joined in the brief supporting Appellants that was filed by VOR, Inc.) stated under oath at the fairness hearing that “the facility advocate at White Haven Center was very insistent on inserting her views into the interview process and questioned me repeatedly about the wisdom of my choices as guardian for my sister.” (JA1449.) Sassaman, a Selinsgrove Facility Advocate, likewise testified that she drew a comparison between moving to a community placement and a vacation— at least for purposes of making it clear that the residents would not be moving to another site (also apparently called a “community”) at the ICF/MR facility. Appellees‟ “State Center (ICF/MR) Community Planning List Assessment” form also includes questions such as: “Do you want to live closer to your family?” (JA1499.)
Appellants take issue with the Settlement Agreement‟s allegedly one-sided educational, training, and outreach programs. The Settlement Agreement sets up a Steering Committee for the express purpose of developing and implementing “a program to educate state ICF/MR residents and their involved families about community placement.” (JA472.) This Steering Committee must include, among its various members, representatives from DRN, a community care provider, the entities that contract with DPW to administer the community care system, together with an individual with intellectual disabilities living in the community as well as a family member of a person with
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intellectual disabilities living in the community. The Settlement Agreement, in turn, says nothing about any possible disadvantages or risks of community placement or about the possible advantages of ICF/MR care. On the contrary, the Steering Committee is required to develop a training curriculum that addresses, among other things, the availability of “specialized programs” for elderly, medically fragile, or difficult individuals, funding for community services, and “opportunities to participate in community life.” (JA473.) According to the Settlement Agreement, DPW must conduct a minimum of three training sessions at each of the five ICFs/MR every year. DPW is also required to provide ICF/MR residents and their guardians and involved family members with opportunities to visit community placements, meet with providers, and, as part of a one-to-one outreach program, discuss community placements with family members of individuals with intellectual disabilities who currently live in community settings. “State ICF/MR residents and their involved families and guardians will be given an opportunity after they participate in training events or have outreach contacts to state their position on discharge,” and DPW then “will supplement or amend” the Planning List. (JA474.) DPW likewise must provide periodic status reports on its implementation of the Settlement Agreement, but the Settlement Agreement does not expressly require any updates on such issues as whether relocated residents are being provided with appropriate care in their community placements or whether any mistakes have been made in the assessment and relocation processes.
In fact, the annual and mandatory assessment
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procedure appears to involve a kind of default rule for a number of ICF/MR residents. The Settlement Agreement expressly provides that, “[i]f the state ICF/MR resident does not express opposition to considering community placement, the resident will be placed on the State ICF/MR Planning List” with the following exceptions: (1) if the resident does not express a preference for community placement but has involved family or a guardian who is opposed to community placement; or (2) if the resident expresses a preference for community placement but has a guardian who is opposed to community placement. (JA471.) The “State Center (ICF/MR) Community Planning List Assessment Protocol” states that, “[i]f the person does not provide input in any manner that can be discerned in response to the questions in this section, [it is to be] indicate[d] that they have no preference regarding living in the community.” (JA1497.) “[R]esidents will be placed on the State ICF/MR Planning List” if, inter alia, “Person has no preference and has no involved family/guardian” or “Person has no preference and there is no involved family/guardian opposition.” (JA1498.) In the end, it appears that a resident whose disabilities are so severe that he or she is incapable of expressing, in some fashion, where he or she wishes to live—and who otherwise lacks a guardian or involved family member or his or her guardian or involved family member fails to express opposition to community placement—must be placed on the Planning List.
Appellants themselves (whose guardians and involved family members have so adamantly opposed community placement) do not fall within this default category at this
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present time. However, Appellants evidently face an ongoing and mandatory mechanism in which a non-responsive resident is placed on the Planning List unless the guardian or involved family member continues to make his or her opposition known each and every year until the Settlement Agreement expires. If an Appellant‟s aging guardian or involved family member dies or otherwise becomes unable to express his or her opposition on behalf of the ICF/MR resident, it appears that his or her past opposition would no longer preclude application of this apparent default rule and the resident‟s inclusion on the Planning List. The guardian or involved family member must continue to communicate his or her continuing opposition to the DPW and otherwise find and designate an adequate substitute or successor. Indeed, it appears that a “no preference” response for the guardian or involved family member is entered if DPW is unable to reach him or her after three telephone calls and the delivery of a certified letter.
Turning to the community placement system itself, we acknowledge that Plaintiffs and DPW agreed that all ICF/MR residents, with the appropriate supports and services, could live in the community setting and that the District Court itself accepted this admission. However, we further note that Appellants and Appellees (together with the respective Amici) vigorously contest the capacities and characteristics— as well as the respective benefits and risks—of the community placement and ICF/MR systems. In any case, inclusion on the Planning List and subsequent relocation from an ICF/MR to a community placement obviously has serious consequences—whether good or bad—for the relocated
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resident as well as any guardian or involved family member he or she may have. Among other things, an ICF/MR resident moved to a community placement then generally has a 60-day trial period in which to return to his or her prior placement. After that period expires, it appears that a court order generally must be obtained for the resident to return to the ICF/MR.
Finally, “Appellants believe the settlement will have an adverse effect on the State Centers” (Appellants‟ Reply Brief at 5), claiming that “the settlement will depopulate them and may cause a reduction in their funding[, a reduction in the quality of care provided at the ICFs/MR,] and, ultimately, one or more of their closures” (Appellants‟ Brief at 64). While it was “not possible to determine . . . whether . . . reallocation will result in the closing of one or more ICFs/MR” at the time of our prior opinion, the remedy stage of this case renders Appellants‟ interests here far less speculative. Benjamin, 432 F. App‟x at 98-99. The Settlement Agreement itself addresses the critical question of funding at some length. Among other things, it evidently requires DPW to: (1) request, as one of its top budget priorities in its budget proposal to the Governor, “appropriations to fund the development of community placements to meet the Integration Plan‟s benchmarks;” (2) “consider the feasibility and propriety of consolidating the budget lines for state ICFs/MR and Community Waiver services;” (3) to the extent feasible, “shift funds from the carry-forward budget for state ICFs/MR to the Community Waiver services budget;” and (4) modify its policies and practices to assure that persons on the Planning List have access to existing community placement
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vacancies. (JA475-JA476.) In the end, this remedy stage of the litigation involves more than just a mere “competitor” for “limited public resources” challenging a judgment that “will occasion some reallocation of [such] resources.” Benjamin, 432 F. App‟x at 99.
Based on this review of the settlement reached by Appellees, we determine that Appellants satisfy the second and third requirements for intervention as of right under Rule 22(a)(2) with respect to the remedy stage of this complex and important proceeding. We again note that the District Court, in its order denying Appellants‟ remedy-stage motions to intervene, did not expressly acknowledge the complexities posed by this distinct stage or address the apparent effects of the Settlement Agreement on Appellants or others. However, the District Court‟s subsequent opinion granting final approval to the Settlement Agreement actually provides further support for our determination.
While the District Court indicated that the reactions of the class itself were almost entirely favorable and that the relatively small number of objections were based on misguided fears of forced removals and ICF/MR closures, it also stated that the objections themselves “were not only numerous, but some were also cogently expressed and many were at times quite eloquent and even poignant.” Benjamin, 807 F. Supp. 2d at 213. The District Court recognized that “all state ICF/MR residents are affected in some way by the Proposed Settlement Agreement because all residents will be subject to evaluation,” only to qualify this statement by adding that “any effect on those who wish not to be
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discharged is negligible compared to the effect that a wholesale denial of the Settlement Agreement will have on those who do not oppose discharge.” Id. at 207 n.2. Likewise, it noted that, “[a]lthough the rights of those who are non-class members must be vigilantly protected, their objections do not destroy the cohesiveness of the class members.” Id. at 208 n.4.
Most significantly, the District Court advised “the parties to implement the settlement with caution.” Id. at 209. According to the District Court:
To our admittedly untrained eye, it appears as though the assessment protocol that has been developed to effectuate the Proposed Settlement Agreement may imply an unintended bias towards community placement. Reviewing the questionnaire to be utilized causes us to entertain serious doubts as to whether it is the proper tool for gauging whether the profoundly disabled, and especially those with no guardian to speak for them, are opposed to community placement. Indeed, we wonder about the wisdom of defaulting such individuals into a no preference category without greater analysis. And we have no doubt that the stated fears of many objectors, including those contained in the eloquent presentation by Mr. Solano on behalf of his sister, are heartfelt and entirely real. We urge those responsible for implementing the policy to consider these
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concerns, and if necessary revise the protocols in question. . . .
Id. at 209-10. But the District Court then indicated that objectors concerned about any supposed policy to shut down ICFs/MR must look to their elected representatives and DPW policymakers. The District Court noted that while no remedy in a context in which “family members must make wrenching decisions regarding loved ones who are in many cases profoundly impaired” will ever be perfect, the settlement presented here “is worthy of our approval” as a reasonable resolution and remedy for illegal conduct. Id. at 210. In its subsequent order denying a partial stay pending appeal, the District Court dismissed its own language as nothing more than insubstantial dicta.
In the end, the District Court‟s various observations resemble in many ways our own analysis of the Settlement Agreement and its possible effects on the protectable interests of Appellants and other ICF/MR residents, guardians, and involved family members. In short, the District Court was troubled by the poignant objections received in this matter, the apparent effects of the Settlement Agreement even on non-members of the class, and, in particular, the “default” treatment of residents who are unable to express a preference and otherwise lack a guardian or involved family member.
We noted in our prior opinion that Plaintiffs “recognize that „Olmstead requires that patients eligible and desirious of community placement be discharged into community-based programs [only] if placement can be
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reasonably accommodated, taking into account the resources of the state and the needs of other persons in its care.‟” Benjamin, 432 F. App‟x at 96 (quoting Frederick L., 422 F.3d at 156-57). In Olmstead, Justice Ginsburg (expressly joined by Justices O‟Connor, Souter, and Breyer) reached the following conclusion:
For the reasons stated, we conclude that, under Title II of the ADA, States are required to provide community-based treatment for persons with mental disabilities 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, taking into account the resources available to the State and the needs of others with mental disabilities. . . .
Olmstead, 527 U.S. at 607 (Ginsburg, J.) (plurality opinion); see also, e.g., id. at 587 (Ginsburg, J.) (plurality opinion).
At this juncture, we simply conclude that the Supreme Court‟s decision in Olmstead provides some additional support for our already limited determination with respect to the second and third requirements for intervention as of right under Rule 24(a)(2). In short, we have already explained at some length the various ways the Settlement Agreement may affect or impair the protectable interests of Appellants and other ICF/MR residents, guardians, and involved family members. Under the circumstances, Appellants should have
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the opportunity to be heard insofar as the Settlement Agreement may have an impact on the available resources as well as the needs of other individuals with mental disabilities, especially other ICF/MR residents. See, e.g., Ligas, 2010 WL 1418583, at *2-*6.3
3 The District Court stated in its initial intervention decision that it was persuaded by the holdings of the Seventh Circuit and the United States District Court for the Northern District of Illinois in the Ligas litigation, noting that “both parties have recognized and relied on this case due to its almost identical circumstances to the instant case.” Benjamin, 267 F.R.D. at 462. However, we believe that subsequent events in this Illinois proceeding actually weigh in Appellants‟ favor.
After the Illinois district court refused to approve a proposed consent decree and decertified the class, plaintiffs, “[w]ith a new class definition in hand,” requested class certification as well as preliminary approval of another proposed consent decree. Ligas, 2010 WL 1418583, at *1. Their motion, however, was dismissed as moot because the district court instead granted a motion to intervene filed by “approximately 2,000 previous objectors who lived in intermediate care facilities for people with developmental disabilities („ICF-DD‟) or are on a waiting list for an ICF-DD as well as at least one individual who currently resides in a community integrated living arrangement („CILA‟).” Id. (footnote omitted). Relying on Olmstead, the Illinois district court determined that these objectors were entitled to intervene under Rule 24(a)(2) as to the new proposed consent decree. Id. at *2-*4. It also allowed them to intervene with
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Before moving to the final requirement for intervention as of right under Rule 24(a)(2), we again wish to emphasize the limited scope of our decision. We merely determine that, given the possible effects of the Settlement Agreement, Appellants possess “a sufficient interest” in the remedy stage of the litigation and that their “interest may be affected or impaired as a practical matter” by the disposition of this distinct stage of this complex yet important case. We express no opinion whatsoever as to whether or not the Settlement Agreement (or any other settlement that may be reached in this proceeding) should ultimately be approved— or whether the class itself should or should not be decertified. All such matters must be decided in the first instance by the District Court on remand—with the full and appropriate participation of Appellants as Rule 24(a)(2) intervenors.

4. Party

Representation of the Interest by an Existing

Although not really emphasized in the appellate briefing, we note that Appellants must establish inadequacy of representation in order to intervene as of right under Rule 24(a)(2). See, e.g., Mountain Top, 72 F.3d at 368. In general, “the burden of making that showing should be treated as minimal.‟” Id. (quoting Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)). Again, the District Court denied the motions to intervene filed in connection with the remedy stage of this case without any real discussion of this (or any other) requirement, and it merely incorporated by

respect to the new class definition. Id. at *5-*6. 43

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reference its previous order denying the Springstead Intervenors‟ liability-stage motion to intervene. Although we did not reach this issue in our prior opinion, the District Court did conclude that the Springstead Intervenors failed to demonstrate that DPW was an inadequate representative of their alleged interests. However, in doing so, it expressly cited to the early stage of the litigation. See Benjamin, 267 F.R.D. at 464 (“Finally, although Applicants attempt to downplay the parallel positions of Defendants and Springstead Intervenors of opposing the relief sought at this early of the litigation, Applicants fail to demonstrate that Defendants will fail to prosecute their defenses in the future or will alter their position in this litigation.”). Since then, circumstances have changed.
While their interests were possibly aligned prior to the District Court‟s summary judgment decision and its finding of liability, DPW‟s interests thereafter shifted from generally maintaining and defending the status quo to reaching a costeffective settlement responsive to the successful disability discrimination theory of liability advanced by Plaintiffs on behalf of themselves and the other class members. Although DPW may still be charged by law with representing the interests of all persons under its care (and may constitute the substitute decision-maker for ICF/MR residents who are incapable of expressing any preference and have no guardians or involved family members), these persons now include both Plaintiffs and Appellants—two groups with quite divergent desires and interests. There is a general presumption that a government entity is an adequate representative. See, e.g., Kleissler, 157 F.3d at 972. “But the presumption
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notwithstanding, when an agency‟s views are necessarily colored by its view of the public welfare rather than the more parochial views of a proposed intervenor whose interest is personal to it, the burden is comparatively light.” Id. (citations omitted). We further note that Appellees have not submitted any briefing expressly addressing this final intervention requirement or specifically explaining how the Settlement Agreement satisfies their obligations to protect Appellants as well as other non-class members. We also believe that intervention here could very well assist DPW in fulfilling its Olmstead “obligation to administer services with an even hand.” Olmstead, 527 U.S. at 587 (Ginsburg, J.) (plurality opinion).
IV.
For the foregoing reasons, we will vacate: (1) the District Court‟s August 16, 2011 order insofar as it denied Appellants‟ motions to intervene as of right in the remedy stage of this litigation; and (2) the District Court‟s order of September 2, 2011 granting final approval to the Settlement Agreement. In turn, we will remand this matter to the District Court with specific instructions to grant Appellants‟ motions to intervene as of right in the remedy stage of this litigation as well as to permit Appellants, as proper intervenors, to challenge the Settlement Agreement and to seek decertification of the class. We, however, express no opinion as to whether or not the Settlement Agreement (or any other settlement that may be reached in this proceeding) should ultimately be approved or disapproved—or whether or not the class should be decertified.
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