Case 1:13-cv-00957-JMS-MJD Document 1 Filed 06/14/13 Page 1 of 19 PageID #: 1

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

KARLA STEIMEL, on her own behalf and on )

behalf of three (3) classes of those similarly )

situated,

)

)

Plaintiffs,

)

)

v.

)

)

DEBRA MINOTT, in her official capacity as )

Secretary of the Indiana Family and Social )

Services Administration; NICOLE NORVELL, )

in her official capacity as the Director of the )

Division of Disability and Rehabilitative Servs. )

of the Indiana Family and Social Services

)

Administration; and FAITH LAIRD, in her )

official capacity as Director of the Division of )

Aging of the Indiana Family and Social Services)

Administration,

)

)

Defendants.

)

No. 1:13-cv-957 COMPLAINT – CLASS ACTION

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Introductory Statement

1. Karla Steimel is an adult Medicaid recipient with cerebral palsy who, as a result of this

condition, requires assistance in all aspects of daily living. In order to receive this assistance in a

community setting, rather than in an institution, Ms. Steimel has sought placement on two (2)

different Medicaid waiver programs operated by the Indiana Family and Social Services

Administration (“the agency”): the Community Integration and Habilitation Waiver (“CIH

Waiver”) and the Aged and Disabled Waiver (“A&D Waiver”). After being deemed eligible for

both programs, Ms. Steimel was placed on a waiting list for the CIH Waiver for twelve (12) or

fifteen (15) years, and in the interim was placed on the A&D Waiver. However, two (2) changes

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in the agency’s policies occurring in late 2012 and early 2013 have resulted in her inability to continue receiving services through either waiver program. First, the agency eliminated entirely the wait-list for the CIH Waiver and instead determined that only persons who meet certain “priority criteria” may receive placement on that waiver. And second, the agency determined that persons with developmental disabilities who do not require skilled nursing services (such as assistance with a ventilator or with medication administration) may not receive services through the A&D Waiver. 2. Rather, Ms. Steimel has been offered placement on a smaller waiver program, also operated by the agency, that does not provide sufficient services to ensure her health and safety in the community. She is therefore at risk for the first time in her life of requiring institutionalization. The agency’s elimination of the wait-list for the CIH Waiver and its determination that persons who do not meet its “priority criteria” may not receive placement on that waiver, as well as its requirement that individuals with developmental disabilities require skilled nursing services for placement on the A&D Waiver, violates the “integration mandate” of the Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq., and of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. Additionally, to the extent that Ms. Steimel was not offered a mechanism through which to appeal the elimination of her position on the wait-list for the CIH Waiver, that failure violates federal Medicaid law, 42 U.S.C. § 1396a(a)(3). 3. The agency’s various policies each affect hundreds, if not thousands, of persons, and this case is therefore suitable for class treatment pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure. Appropriate declaratory and injunctive relief must be entered on behalf of Ms. Steimel and the classes. Jurisdiction, Venue, and Cause of Action
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4. The Court has jurisdiction of this case pursuant to 28 U.S.C. § 1331. 5. Venue is proper in this district pursuant to 28 U.S.C. § 1391. 6. Declaratory relief is authorized by Rule 57 of the Federal Rules of Civil Procedure and 28 U.S.C. §§ 2201 and 2202. 7. This action is brought pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq., the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., and 42 U.S.C. § 1983 to redress the deprivation, under color of state law, of rights secured by federal law. Parties 8. Karla Steimel is an adult resident of Knox County, Indiana. She brings this action on her own behalf and on behalf of three (3) classes of those similarly situated. 9. Debra Minott is the duly appointed Secretary of the Indiana Family and Social Services Administration, and is sued in her official capacity. 10. Nicole Norvell is the duly appointed Director of the Division of Disability and Rehabilitative Services of the Indiana Family and Social Services Administration, and is sued in her official capacity. 11. Faith Laird is the duly appointed Director of the Division of Aging of the Indiana Family and Social Services Administration, and is sued in her official capacity. Class Action Allegations 12. Karla Steimel brings this action on her own behalf and on behalf of three (3) classes of those similarly situated pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure.
Class A 13. Class A is defined as follows:
Any and all persons on the waiting list for Indiana’s Community Integration and Habilitation Medicaid Waiver Program (including its predecessor, the
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Developmental Disabilities Medicaid Waiver Program) as of August 31, 2012, or who will be or would otherwise be on the wait-list for that program but for the elimination of that wait-list, and who do not meet Indiana’s priority criteria for placement on that program (described in paragraph 33, infra). 14. As defined, Class A meets all requirements of Rule 23(a) of the Federal Rules of Civil Procedure. Specifically: a. Class A is so numerous that the joinder of all members is impracticable. On information and belief, Class A is thought to number in the thousands, if not tens of thousands, of persons. b. There are questions of law or fact common to Class A, namely whether the challenged policy violates the Americans with Disabilities Act and the Rehabilitation Act. c. The claims of the representative party are typical of those of the class. d. The representative party will fairly and adequately represent the class. 15. Class A further meets the requirements of Rule 23(b)(2) of the Federal Rules of Civil Procedure insofar as the party opposing certification has acted and/or refused to act on grounds generally applicable to the class. 16. Undersigned counsel is skilled and experienced in this type of class action litigation, and should therefore be appointed as counsel for Class A pursuant to Rule 23(g) of the Federal Rules of Civil Procedure. Class B 17. Class B is defined as follows: Any and all persons on the waiting list for Indiana’s Community Integration and Habilitation Medicaid Waiver Program (including its predecessor, the Developmental Disabilities Medicaid Waiver Program) as of August 31, 2012. 18. As defined, Class B meets all requirements of Rule 23(a) of the Federal Rules of Civil Procedure. Specifically:
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a. Class B is so numerous that the joinder of all members is impracticable. On information and belief, Class B is thought to number in the thousands, if not tens of thousands, of persons.
b. There are questions of law or fact common to Class B, namely whether the failure to provide for an appeals process violates 42 U.S.C. § 1396a(a)(3).
c. The claims of the representative party are typical of those of the class.
d. The representative party will fairly and adequately represent the class.
19. Class B further meets the requirements of Rule 23(b)(2) of the Federal Rules of Civil
Procedure insofar as the party opposing certification has acted and/or refused to act on grounds
generally applicable to the class.
20. Undersigned counsel is skilled and experienced in this type of class action litigation, and
should therefore be appointed as counsel for Class B pursuant to Rule 23(g) of the Federal Rules
of Civil Procedure.
Class C
21. Class C is defined as follows:
Any and all persons enrolled in, or who will be enrolled in, Indiana’s Aged and Disabled Medicaid Waiver Program and/or its Traumatic Brain Injury Medicaid Waiver Program who (a) are developmentally disabled and/or under age eleven (11), (b) do not routinely require skilled nursing services for their conditions, (c) meet nursing facility level of care as determined through the use of Indiana’s Eligibility Screen (State Form 45528), and (d) are also determined to be eligible for services through the Family Supports Medicaid Waiver Program.
22. As defined, Class C meets all requirements of Rule 23(a) of the Federal Rules of Civil
Procedure. Specifically:
a. Class C is so numerous that the joinder of all members is impracticable. On information and belief, Class C is thought to number in the hundreds, if not the thousands, of persons.
b. There are questions of law or fact common to Class C, namely whether the challenged policy violates the Americans with Disabilities Act and the Rehabilitation Act.
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c. The claims of the representative party are typical of those of the class. d. The representative party will fairly and adequately represent the class. 23. Class C further meets the requirements of Rule 23(b)(2) of the Federal Rules of Civil Procedure insofar as the party opposing certification has acted and/or refused to act on grounds generally applicable to the class. 24. Undersigned counsel is skilled and experienced in this type of class action litigation, and should therefore be appointed as counsel for Class C pursuant to Rule 23(g) of the Federal Rules of Civil Procedure. Factual Allegations Facts Concerning the Agency’s Medicaid Waiver Programs
A. Introduction to the Agency’s Medicaid Waiver Programs 25. The U.S. Department of Health and Human Services may waive certain requirements of the Medicaid program for states that include as “medical assistance” under their State plan home and community-based services that are provided to an individual who, but for such services, would require the level of care provided in a hospital, nursing facility, or intermediate care facility for the mentally retarded. See 42 U.S.C. § 1396n(c)(1). 26. The Indiana Family and Social Services Administration (“the agency”) currently operates four (4) such home and community-based Medicaid waiver programs, which are programs approved by the U.S. Department of Health and Human Services pursuant to 42 U.S.C. § 1396n(c). Of these programs, two (2) are operated through the agency’s Division of Disability and Rehabilitative Services (“DDRS”) (the Community Integration and Habilitation Waiver [“CIH Waiver”] and the Family Supports Waiver [“FS Waiver”]) and two (2) are operated
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through the agency’s Division of Aging (the Aged and Disabled Waiver [“A&D Waiver”] and the Traumatic Brain Injury Waiver [“TBI Waiver”]). 27. Historically, the agency has operated five (5) home and community-based Medicaid waiver programs, three (3) through DDRS. The three (3) operated through DDRS were known as the Developmental Disabilities Waiver (“DD Waiver”), the Autism Waiver, and the Support Services Waiver (“SS Waiver”). However, on or around September 1, 2012, the DD Waiver and the Autism Waiver merged and became the CIH Waiver, and the SS Waiver became the FS Waiver. Persons enrolled in the previous waiver programs were automatically transitioned to the newly named programs. Therefore, throughout this complaint and for the purposes of simplicity, the current names of the waiver programs are utilized to refer both to the current waiver programs and their predecessors. 28. An individual enrolled in a Medicaid home and community-based waiver program in Indiana must demonstrate that, but for his or her enrollment in that program, he or she would require institutionalization, either through placement in an intermediate care facility for the mentally retarded (for the waiver programs operated by DDRS) or through placement in a nursing facility (for the waiver programs operated by the Division of Aging). This individual may receive, through that program, specified types of services in his or her home or other community setting in lieu of institutionalization. 29. Each Medicaid home and community-based waiver program in Indiana has an “enrollment cap”—that is, a total number of individuals that may receive services through that program. In 2013, the enrollment cap for the CIH Waiver is 7,370 persons; the enrollment cap for the A&D Waiver is 13,951 persons; and the enrollment cap for the FS Waiver is 5,267 persons. Historically, individuals who seek enrollment in a home and community-based waiver
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program that has reached its capacity have been placed on a wait-list to receive such services (assuming they were otherwise eligible).
B. The Elimination of the Wait-List for the CIH Waiver 30. Historically, the CIH Waiver has maintained a lengthy wait-list, such that persons often do not receive services through that waiver program until ten (10) or fifteen (15) years after they initially seek placement on the program. On August 31, 2012, the wait-list for placement on the CIH Waiver contained many thousands, or perhaps even tens of thousands, of persons. 31. However, on or about September 1, 2012, the wait-list for enrollment in the CIH Waiver was eliminated entirely. Rather, persons who were previously on the wait-list for the CIH Waiver were sent a letter titled “Targeting Letter for DDRS’ Family Supports Waiver” (“Targeting Letter”). In pertinent part, this Targeting Letter informed persons on the wait-list for the CIH Waiver that the only way to access the CIH Waiver “is if an individual meets specific emergency priority criteria.” The Targeting Letter therefore required individuals to respond within thirty (30) days to accept a placement on the wait-list for the FS Waiver; if they did not so respond, their named “w[ould] be removed from the Medicaid Waiver wait list and th[e] slot w[ould] be offered to another individual on the waiting list.” A true and correct copy of the Targeting Letter is attached and incorporated herein as Exhibit 1. A true and correct summary of a “Webinar” provided by the agency explaining some of the changes in its policies is attached and incorporated herein as Exhibit 2. 32. The Targeting Letter did not inform persons that they could appeal the agency’s decisions or provide any details on the manner in which they might do so. Rather, no such appeals process was made available to persons, even if they believed that they met one or more of the “specific emergency priority criteria.”
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33. The “specific emergency priority criteria” referenced in the letter whereby persons
meeting such criteria may be eligible for the CIH Waiver are as follows:
• Otherwise eligible individuals transitioning to the community from a nursing facility, ESN, or SOF.
• Otherwise eligible individuals determined to no longer need/receive active treatment in an SGL.
• Otherwise eligible individuals transitioning from 100% state funded services. • Otherwise eligible individuals aging out of certain services offered by the Department of
Education, the Department of Child Services, or SGL. • Otherwise eligible individuals requesting to leave a large private ICF/ID. • Otherwise eligible individuals meeting the following emergency criteria:
Death of a Primary Caregiver where there is no other caregiver available. Caregiver over 80 years of age where there is no other caregiver available. Evidence of abuse or neglect in the current institution or SGL placement. Extraordinary health and safety risk as reviewed and approved by the Director of DDRS.
34. As used in these criteria, “ESN” refers to “extensive support needs,” which are group
homes designed and licensed to meet the needs of individuals with intensive behavioral and/or
medical needs; “SOF” refers to a “state-operated facility,” which is the same as a state institution
or state hospital; and “SGL” refers to “supervised group living,” which is a group home licensed
under Indiana Code § 12-28-5-10, et seq. Finally, “ICF/ID” refers to an “intermediate care
facility for the intellectually disabled,” which is or has in the past been also referenced as an
intermediate care facility for the mentally retarded (ICF/MR) or an intermediate care facility for
the developmentally disabled (ICF/DD).
35. Many persons who were previously on or were previously eligible for placement on the
CIH Waiver wait-list will never meet these “specific emergency priority criteria.” For instance,
persons institutionalized in an ICF/ID that does not qualify as a “large private ICF/ID” (or
persons who may be placed in such a facility) are unlikely to ever be eligible for the CIH Waiver
under these criteria.
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36. Placement on the FS Waiver is not a complete or adequate substitute for placement on the CIH Waiver for many individuals who were previously on the wait-list for the CIH Waiver. 37. Many persons have applied for or otherwise sought services through the CIH Waiver because their disabling conditions cause them to require substantial care, supervision, and/or assistance in order for them to reside safely in the community, and in numerous instances these individuals possess disabling conditions that cause them to require constant (24/7) care and supervision. Accordingly, depending on their needs and other circumstances, persons may receive through the CIH Waiver services up to twenty-one (21) hours each day. 38. On the other hand, persons enrolled in the FS Waiver may receive no more than $16,250 in services each year. This is an amount that equates to approximately forty (40) hours each month in care, supervision, and habilitation. This limit on services means that the FS Waiver is grossly inadequate as an alternative to placement on the CIH Waiver.
C. Transitioning Persons Away from the A&D Waiver and the TBI Waiver 39. In or around September of 2011, the agency (and its Division of Aging) issued a “Policy Change”—effective October 1, 2011—entitled “Nursing Facility Medicaid Waivers: Level of Care Policy Statement” (“2011 Policy Change”). A true and correct copy of this 2011 Policy Change is attached and incorporated herein as Exhibit 3. 40. This 2011 Policy Change rescinded an earlier Policy Statement, which had been in effect since September 12, 2006 (“2006 Policy Statement”). A true and correct copy of this 2006 Policy Statement is attached and incorporated herein as Exhibit 4. 41. According to the 2011 Policy Change, the 2006 Policy Statement had, in pertinent part, “announced that children under age eleven (11) and/or individuals with a MR/DD [mentally retarded/developmentally disabled] diagnosis could be eligible for the Aged and Disabled and
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Traumatic Brain Injury waivers” provided that these individuals “meet nursing facility level of care requirements as outlined through the Eligibility Screen assessment tool, section 1 and/or section 2.” 42. As indicated, in order to receive services through the A&D Waiver or the TBI Waiver, an individual must meet “nursing facility level of care.” To determine whether an individual so qualifies, the agency completes a so-called “Eligibility Screen” (State Form 45528). A true and correct copy of this Eligibility Screen is attached and incorporated herein as Exhibit 5. 43. As is pertinent here, the Eligibility Screen contains two (2) sections relevant to determining whether an individual meets nursing facility level of care. 44. The first section (Section 1) of the Eligibility Screen is entitled “Severe Medical Conditions”: if one (1) or more of the conditions in this section exist, then that person is deemed to meet nursing facility level of care. The conditions in this section generally refer to needs requiring skilled assistance, such as the administration of medications or other injections, assistance with operating a ventilator, or suctioning or tube feeding. 45. The second section (Section 2A) is entitled “Substantial Medical Conditions Including Activities of Daily Living”: if three (3) or more of the conditions in this section exist, then that person is likewise deemed to meet nursing facility level of care. The conditions in this section generally refer to substantial needs that do not necessarily require assistance from a skilled caregiver, such as assistance in eating, transferring, bathing, or ambulating. 46. Numerous persons with developmental disabilities have been or are enrolled in the A&D Waiver and/or the TBI Waiver insofar as they meet nursing facility level of care under the requirements of Section 2A of the Eligibility Screen.
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47. Nonetheless, the agency has interpreted and applied its 2011 Policy Change to require that children under age eleven (11) and developmentally disabled individuals require skilled nursing services—such as suctioning, ventilation, or tube feeding—in order to receive services through the A&D Waiver or the TBI Waiver. This is so even if these individuals meet nursing facility level of care requirements. 48. However, individuals who were approved for the A&D Waiver and/or the TBI Waiver prior to the 2011 Policy Change may continue to receive services through that program until they either voluntarily withdraw or transfer to another waiver program. Nonetheless, the agency has required and is requiring all persons enrolled in the A&D Waiver and/or the TBI Waiver to transfer to the FS Waiver if (a) they are developmentally disabled and/or under age eleven (11) and do not routinely require skilled nursing services and (b) they are otherwise eligible for the FS Waiver. 49. For the reasons described above, the FS Waiver is not an adequate alternative to placement on the A&D Waiver and/or the TBI Waiver. 50. Eligibility for the FS Waiver is determined by application of the definition of “persons with related conditions” contained within 42 C.F.R. § 435.1010. Specifically, an individual must meet the following requirements:
• He or she must have a severe, chronic disability that is attributable to cerebral palsy, epilepsy, or any other condition, other than mental illness, that is found to be closely related to Intellectual Disability because this condition results in impairment of general intellectual functioning or adaptive behavior similar to that of mentally retarded persons, and requires treatment or services similar to those required for these persons.
• His or her disability must have manifested before the person reached age 22. • His or her disability must be likely to continue indefinitely. • His or her disability must result in substantial functional limitations in three or more of
the following areas of major life activity: Self-care. Understanding and use of language.
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Learning. Mobility Self-direction. Capacity for independent living. 51. Because of the nature of these requirements, nearly every individual with a developmental disability previously enrolled in or eligible for the A&D Waiver and/or the TBI Waiver to whom the 2011 Policy Change applies will also be eligible for services through the FS Waiver. Facts Concerning Karla Steimel 52. Karla Steimel is an adult resident of Knox County, Indiana. She is currently twentyseven (27) years old and is a Medicaid recipient. 53. Ms. Steimel is developmentally disabled. She has a primary diagnosis of cerebral palsy, and also has physical disabilities, including arthritis and incontinence. 54. As a result of her cerebral palsy, Ms. Steimel requires assistance in completing all aspects of her daily living. She cannot ambulate by herself and therefore is confined to a wheelchair at all times when she is not in bed. She requires complete assistance, for instance, in transferring, bathing, toileting, preparing meals, and running errands. She also requires an assistant to be present during all waking hours because she would be unable to ensure her safety in case of an emergency such as a fire or a fall. 55. Ms. Steimel resided with her parents until she was approximately twenty (20) years old. Since that time, she has been living by herself in the community, and has been renting a house at her current address for the past three (3) years. 56. Approximately twelve (12) or fifteen (15) years ago, Ms. Steimel applied for enrollment in the CIH Waiver (which was at the time known as the Developmental Disabilities Waiver).
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She was accepted onto the wait-list for the CIH Waiver, and remained on that wait-list until approximately September 1, 2012. 57. While Ms. Steimel was on the wait-list to receive services through the CIH Waiver, she applied for and was offered a slot on the A&D Waiver. Ms. Steimel has therefore been receiving services through that waiver program for at least eight (8) years. 58. Through the A&D Waiver, Ms. Steimel currently receives approximately one hundred sixty (160) hours each month in so-called “attendant care” services. Attendant care services are those services provided through the waiver that primarily involve hands-on care and assistance for persons with disabilities (such as assistance in transferring, toileting, bathing, preparing meals, and running errands). They are provided to allow such individuals to remain in their homes while receiving assistance to carry out activities of daily living, self-care, and mobility. Through these services, Ms. Steimel also receives transportation to the Knox County ARC, where she is employed and receives employment-related services from approximately 8:30 a.m. to 2:00 p.m. five (5) days a week. 59. In addition to the services that she receives through the A&D Waiver, Ms. Steimel receives approximately thirty-eight (38) hours each week in services from a home health agency. See IND. ADMIN. CODE tit. 405, r. 5-16-1, et seq. (describing home health agency services). These are services that are provided through the traditional Medicaid program, rather than through a waiver program, and for which prior authorization has been sought and obtained pursuant to Title 405, Rule 5-3-1, et seq., of the Indiana Administrative Code. However, these “home health” services cannot be provided to Ms. Steimel outside of her home, and she may therefore not utilize these services to run errands or engage in other community activities, or to
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transport herself to work. Regardless, Ms. Steimel is not eligible to receive additional “home health” services beyond those that she is currently receiving. 60. On or about January 10, 2013, the agency sent to Ms. Steimel a copy of the letter titled “Targeting Letter for DDRS’ Family Supports Waiver” (Exhibit 1). As indicated, this letter informed Ms. Steimel that, notwithstanding the fact that she had spent over a decade on a waiting list to receive services through the CIH Waiver, there would no longer be a waiting list and she could not access services through this waiver unless she met certain “specific emergency priority criteria.” This letter did not inform Ms. Steimel that she could appeal the agency’s decision or provide any details on the manner in which she might do so. Rather, no such appeals process was made available to her, even though she believes the agency’s decision is erroneous and wishes to appeal it. A true and correct copy of the letter received by Ms. Steimel is attached and incorporated herein as Exhibit 6. 61. Further communications with representatives of the agency confirmed that Ms. Steimel was and is not considered to meet any of the agency’s priority criteria. Ms. Steimel agrees that she does not meet any of these criteria, with the possible exception that she believes that transitioning to the FS Waiver will present an “extraordinary health and safety risk.” However, she does not know the precise meaning of that term as employed by the agency, and she has not been reviewed and approved as having such a risk by the Director of DDRS. 62. Moreover, also in or around January of 2013, Ms. Steimel was informed that, as a result of the 2011 Policy Change described above, she could no longer receive services through the A&D Waiver insofar as she does not have any “skilled medical needs”—that is, that she does not routinely require skilled nursing services. However, she was informed that, if she did not meet
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ICF/ID level of care, such that she would be eligible for placement on the FS Waiver, then she could continue receiving services through the A&D Waiver. 63. Ms. Steimel meets both nursing facility level of care (required for eligibility on the A&D Waiver) and ICF/ID level of care (required for eligibility on the CIH Waiver and the FS Waiver). A true and correct copy of the Eligibility Screen (completed in September of 2012) demonstrating that she meets nursing facility level of care is attached and incorporated herein as Exhibit 7. A true and correct copy of the letter from DDRS (completed in April of 2013) demonstrating that she meets ICF/ID level of care is attached and incorporated herein as Exhibit 8. 64. Accordingly, Ms. Steimel has been removed from the wait-list for the CIH Waiver as well as from placement on the A&D Waiver in favor of placement on the FS Waiver. 65. However, the services offered through the FS Waiver are inadequate to provide for Ms. Steimel’s needs and will leave her without necessary care and supervision for much of every single day. Specifically, even though Ms. Steimel receives approximately forty (40) hours each week in attendant care services through the A&D Waiver presently, through the FS Waiver she would only be able to receive approximately forty (40) hours each month in services. Moreover, because of the limited amount of services available through the FS Waiver, Ms. Steimel would be required to utilize these services in order to perform necessary tasks at home rather than to transport her to her employment or other community activities. 66. If Ms. Steimel is transitioned to the FS Waiver, she will be at grave risk of immediate and irreparable harm in the community. She will therefore be required to, for the first time, consider placement in an institutional setting.
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67. Ms. Steimel’s needs, as well as the needs of the members of putative Class A and putative Class C, may be reasonably accommodated in the community without causing a fundamental alteration to the agency’s services. 68. Ms. Steimel is not positive as to when she will be transitioned off of the A&D Waiver and on to the FS Waiver. However, as a result of her communications with her case manager, she believes that this is likely within a week or two.
Concluding Factual Allegations 69. The agency, DDRS, and the Division of Aging all receive federal funds, and are therefore subject to the requirements of the Rehabilitation Act of 1973. 70. As a result of the actions or inactions of the defendants, the plaintiff and the members of the putative classes are suffering irreparable harm for which there is no adequate remedy at law. 71. The defendants have, at all times, acted or refused to act under color of state law. Legal Claims 72. The elimination of the wait-list for the CIH Waiver and the requirement that only those persons who meet the agency’ “specific emergency priority criteria” may be considered for placement on this waiver violates the “integration mandate” of the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973. This claim is brought on behalf of Ms. Steimel and Class A. 73. The failure to provide persons eliminated from the wait-list for the CIH Waiver with notice and an opportunity to appeal that action violates 42 U.S.C. § 1396a(a)(3). This claim is brought on behalf of Ms. Steimel and Class B. 74. The elimination of persons with developmental disabilities who do not have skilled medical needs—that is, do not routinely require skilled nursing services—from the A&D Waiver
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violates the “integration mandate” of the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973. This claim is brought on behalf of Ms. Steimel and Class C. Request for Relief
WHEREFORE, the plaintiff and the putative classes respectfully request that this Court do the following: 1. Accept jurisdiction of this cause and set it for hearing. 2. Certify this case as a class action pursuant to Rule 23(a) and (b)(2) of the Federal Rules
of Civil Procedure, with the classes as defined above. 3. Declare that the defendants have violated the rights of the plaintiff and the classes for the
reasons described above. 4. Issue a preliminary injunction, later to be made permanent, requiring the defendants to:
a. Re-instate the wait-list for placement on the CIH Waiver for the plaintiff and the members of Class A, eliminate any requirement that persons meet the agency’s “specific emergency priority criteria” to be placed on this wait-list, and provide sufficient slots through this waiver for the wait-list to move at a reasonable pace.
b. Provide notice and an opportunity to appeal the elimination of their place on the waitlist for the CIH Waiver to the plaintiff and the members of Class B.
c. Continue providing services to the plaintiff and the members of Class C through the A&D Waiver.
5. Award the plaintiff and the classes their costs and attorneys’ fees pursuant to 29 U.S.C. § 794a, 42 U.S.C. § 12133, 42 U.S.C. § 1988, and any and all other applicable statutes.
6. Award all other proper relief.
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Case 1:13-cv-00957-JMS-MJD Document 1 Filed 06/14/13 Page 19 of 19 PageID #: 19 Respectfully submitted, /s/ Gavin M. Rose Gavin M. Rose ACLU OF INDIANA 1031 E. Washington St. Indianapolis, IN 46202 317/635-4059, x106 <grose@aclu-in.org> Attorney for the plaintiff and the putative classes
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 Case 1:13-cv-00957-JMS-MJD Document 26 Filed 09/23/13 Page 1 of 1 PageID #: 172

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

KARLA STEIMEL, on her own behalf and on )

behalf of three (3) classes of those similarly )

situated,

)

)

Plaintiffs,

)

)

v.

)

)

DEBRA MINOTT, in her official capacity as )

Secretary of the Indiana Family and Social )

Services Administration, et al.,

)

)

Defendants.

)

No. 1:13-cv-00957-JMS-MJD

ORDER

The plaintiff and the putative classes having filed their Motion to Withdraw Preliminary

Injunction Motion (“Motion”), and the Court having read and reviewed the same and being duly

advised, the Court now finds that said Motion should be GRANTED.

IT IS THEREFORE ORDERED that the plaintiffs’ Motion for Preliminary Injunction

(ECF No. 5) is hereby WITHDRAWN, without prejudice to its refiling as circumstances dictate.

SO ORDERED.

09/23/2013 ____________________________ Date

__________________________________________ Judge, UniteMdaSrktaJ.tDesinDsmiosrterict Court
United States Magistrate Judge Southern District of Indiana

Cc: All ECF-registered counsel of record

1

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

KARLA STEIMEL, ON HER OWN BEHALF AND

)

ON BEHALF OF A CLASS OF THOSE SIMILARLY )

SITUATED,

)

Plaintiffs,

)

)

vs.

)

)

DEBRA MINOTT, IN HER OFFICIAL CAPACITY

)

AS SECRETARY OF THE INDIANA FAMILY AND )

SOCIAL SERVICES ADMINISTRATION, ET AL.,

)

Defendants.

)

1:13-cv-957-JMS-MJD

ORDER1

For a number of years, the Indiana Family and Social Services Administration (“FSSA”)

had a policy in place that allowed developmentally disabled individuals to receive Medicaid

waiver services through a waiver program for which they were ineligible. To remedy this prob-

lem, the FSSA changed its policy and began transitioning the inappropriately placed individuals

to another waiver program designed to serve their needs. This transition allegedly caused many

developmentally disabled individuals to face a reduction in services. This suit challenges the

FSSA’s policy change.

Plaintiff Karla Steimel brings this action on behalf of herself and a class of those similar-

ly situated (collectively, “Plaintiffs”) against Defendants Debra Minott, Secretary of the Indiana

Family and Social Services Administration (“FSSA”); Nicole Norvell, Director of the Division

of Disability and Rehabilitative Services of the FSSA; and Faith Laird, Director of the Division

of Aging of the FSSA (collectively, “the State”), alleging violations of the Americans with Disa-

1 As part of the Court’s pilot program regarding hyperlinking in Court filings, this Order contains hyperlinks to documents previously filed in this case, and to legal authority. Instead of the citation format “dkt. __ at __,” the Court now uses “Filing No. __, at ECF p. __” as its citation format.
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bilities Act of 1990 (“ADA”) and the Rehabilitation Act of 1973. [Filing No. 1.] Presently pending before the Court are Plaintiffs’ Motion to Certify Class, [Filing No. 3], and a Motion for Permissive Intervention and to Join in Pending Motion for Class Certification filed by Intervenor Plaintiffs Thomas Maertz, Colton Cole, Cody Cole, and Timothy Keister, [Filing No. 88]. The Court held a hearing on these motions during which counsel for each side presented argument. [See Filing No. 108.] For the reasons that follow, the Court DENIES the Motion to Certify Class, [Filing No. 3], and GRANTS the Motion for Permissive Intervention and to Join in Pending Motion for Class Certification, [Filing No. 88].
I. STANDARD OF REVIEW In deciding whether to certify a class, the Court may not blithely accept as true even the most well-pleaded allegations of the complaint, but must instead “make whatever factual and legal inquiries are necessary under Rule 23” to resolve contested issues. Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676 (7th Cir. 2001); see Parko v. Shell Oil Co., 739 F.3d 1083, 1085 (7th Cir. 2014). Specifically, the Court must find that the putative class satisfies the four prerequisites set forth in Federal Rule of Civil Procedure 23(a). If the putative class does satisfy these prerequisites, the Court must additionally find that it satisfies the requirements set forth in Federal Rule of Civil Procedure 23(b), which vary depending upon which of three different types of classes is proposed. Before addressing the Rule 23 factors, however, the Court must examine whether the proposed class members are sufficiently definite. To do so, “[t]he plaintiff must . . . show . . . that the class is indeed identifiable as a class.” Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). When “there is no way to know or readily ascertain who is a member of the class,” the class “lacks the definiteness required for class certification.” Jamie S. v. Milwaukee Public
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Schools, 668 F.3d 481, 495 (7th Cir. 2012). If the class as defined is sufficiently definite, the Court turns next the Rule 23(a) factors.
It is the plaintiff’s burden to prove that an identifiable class exists that qualifies for certification under Rule 23(a). Oshana, 472 F.3d at 513. The four prerequisites under Rule 23(a) are: “(1) [that] the class is so numerous that joinder of all members is impracticable; (2) [that] there are questions of law or fact common to the class; (3) [that] the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) [that] the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). Class certification is not appropriate unless the named plaintiff establishes all four prerequisites. Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012).
In addition to meeting the prerequisites of Rule 23(a), the proposed class must satisfy one of the conditions of Rule 23(b). Messner, 669 F.3d at 811; Oshana, 472 F.3d at 513. Under Rule 23(b), a class action that satisfies Rule 23(a) may be sustained if one of the following is true: “(1) prosecuting separate actions by or against individual class members would create a risk of: (A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or (B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests; (2) 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; or (3) the court finds that the questions of law or fact common to class members predominate over any questions af-
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fecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(1-3).
II. BACKGROUND This case involves Medicaid waiver programs funded jointly by the federal government and the state of Indiana. These programs allow states such as Indiana to waive certain federal Medicaid requirements. See generally 42 U.S.C. § 1396n. A subset of these programs—homeand-community-based waiver programs—“permit[] a State to furnish an array of home and community-based services that assist Medicaid beneficiaries to live in the community and avoid institutionalization.” [Filing No. 58-5, at ECF p. 8.] The FSSA submits waivers for approval to the United States Department of Health and Human Services (“DHHS”). [Filing No. 58-2, at ECF p. 4.] Relevant to this litigation are three such waiver programs currently administered by the FSSA: the Aged and Disabled Waiver (“A&D Waiver”), the Community Integration and Habilitation Medicaid Waiver (“CIH Waiver”) and the Family Supports Medicaid Waiver (“FS Waiver”). [Filing No. 58-2, at ECF p. 4; Filing No. 58-4, at ECF p. 4.] The FSSA’s Division of Aging administers the A&D Waiver, while the FSSA’s Bureau of Developmental Disabilities Services (“BDDS”) administers the CIH Waiver and the FS Waiver. [Filing No. 58-2, at ECF p. 4; Filing No. 58-4, at ECF p. 4.] An individual may only be enrolled in (and thus receive services from) one waiver program at a time. [Filing No. 58-2, at ECF p. 4.] Individuals enrolled in any of the waiver programs receive a case manager. [Filing No. 58-2, at ECF p. 6; Filing No. 58-4, at ECF p. 6.] To determine both the type and amounts of services an enrollee will receive through the waiver program, the case manager, the enrollee, and the enrollee’s guardian evaluate the enrollee’s particular circumstances to identify the enrollee’s specific needs. [Filing No. 58-2, at ECF p. 6; Filing No. 58-4, at ECF p. 6.] The enrollee then
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submits her plan to the appropriate administrating agency—either the Division of Aging or BDDS—which can either approve or deny the request for services. [Filing No. 58-2, at ECF p. 6; Filing No. 58-4, at ECF p. 6.] An enrollee must have her requested services approved annually by the appropriate agency. [Filing No. 58-2, at ECF p. 6; Filing No. 58-4, at ECF p. 6.]
A basic understanding of each waiver is necessary to understand the events underlying this suit. The A&D Waiver “provides an alternative to nursing facility admission for adults and persons of all ages with a disability,” specifically by providing services “for people who would require care in a nursing facility if waiver or other supports were not available.” [Filing No. 585, at ECF p. 12.] When an individual’s A&D Waiver plan is approved by the Division of Aging, she is provided a list of the A&D Waiver services approved and her waiver budget for that year. [Filing No. 58-2, at ECF p. 7.] The approved services are reimbursed at rates set by the Division of Aging. [Filing No. 58-2, at ECF p. 6.] Although A&D Waiver enrollees receive a specific budget amount each year, they need not use services such that they spend the entire allocated budget. [Filing No. 95-1, at ECF p. 2.] The A&D Waiver has a limited number of individuals that it can serve, but it is not currently at capacity. [Filing No. 58-2, at ECF p. 5.]
Both the FS Waiver and CIH Waiver provide “waiver services to participants . . . in a range of community settings as an alternative to care in an intermediate care facility” to persons “with a developmental disability, intellectual disability . . . or autism.” [Filing No. 58-7, at ECF p. 8; Filing No. 58-8, at ECF p. 8.] While the A&D Waiver is limited to those who require nursing-facility level of care, the FS Waiver and the CIH Waiver serve individuals who require a different level of care: “intermediate care facility for individuals with intellectual disabilities” (“ICF/IID”). [Filing No. 58-7, at ECF p. 7; Filing No. 58-8, at ECF p. 7.] Like the A&D Waiver, the FS Waiver and the CIH Waiver are reimbursed at set rates, [Filing No. 58-9, at ECF p. 9-
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10], albeit not the same rates as services under the A&D Waiver, [Filing No. 58-9, at ECF p. 24], and an enrollee has a services budget approved at least on an annual basis, [Filing No. 58-4, at ECF p. 6-7]. The FS Waiver currently caps enrollee’s budgets at $16,250 per year. [Filing No. 58-4, at ECF p. 18.] The CIH Waiver, however, has a much higher budget cap, [Filing No. 30-1, at ECF p. 2], given that it is a needs-based waiver and “individuals must meet emergency placement criteria to access [it].” [Filing No. 58-9, at ECF p. 77.] The amount of services available under each of the three waivers is impacted by the statutory requirements that each waiver be cost-neutral compared to the cost of serving these enrollees through a traditional Medicaid institutional placement. See 42 U.S.C. § 1396n(c)(2)(D) (requiring that under each “waiver the average per capita expenditure estimated by the State in any fiscal year for medical assistance provided with respect to such individuals does not exceed 100 percent of the average per capita expenditure that the State reasonably estimates would have been made in that fiscal year for expenditures under the State plan for such individuals if the waiver had not been granted”).
From 2006 to 2011, FSSA policy permitted individuals with developmental disabilities to be placed on the A&D Waiver even if they did not meet nursing-facility level of care. [Filing No. 58-9, at ECF p. 27-32 (2006 A&D Waiver Policy Statement).] This decision contradicted the express terms of the A&D Waiver approved by DHHS, which limited the A&D Waiver to individuals requiring nursing-facility level of care. [Filing No. 58-5, at ECF p. 11.] In October 2011, the Division of Aging instituted a new policy that is the subject of this litigation (“2011 Policy Change”). [Filing No. 58-9, at ECF p. 32.] The 2011 Policy Change rescinded the FSSA’s prior policy of allowing individuals with a developmental disability to enroll in the A&D Waiver even if they did not require nursing-facility level of care. [Filing No. 58-9, at ECF p. 32.] Because some individuals on the A&D Waiver did not meet that level of care, the Division
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of Aging needed to transition enrollees to another waiver for which they were eligible. [Filing No. 58-2, at ECF p. 12.] Specifically, the Division of Aging sought to transition those no longer eligible for the A&D Waiver to either of the two waiver programs administered by BDDS: the FS Waiver or the CIH Waiver. [Filing No. 58-2, at ECF p. 12.]
Individuals on the A&D Waiver that were no longer eligible were not instantly transitioned off the A&D Waiver. Instead, they remained—and many still remain—on the A&D Waiver until they were “targeted”2 for transition to the FS Waiver. [Filing No. 58-2, at ECF p. 12-13.] As stated by the FSSA, “[s]ome individuals currently served through the A&D Waiver no longer meet Nursing Facility level of care but do continue to require assistance with activities of daily living due to a reported developmental disability. These individuals have been notified by their case manager that they no longer meet [Nursing Facility] level of care and may continue to receive services through the A&D Waiver as they wait to be targeted for the [FS Waiver].” [Filing No. 58-9, at ECF p. 76.] Although technically an individual could transition from the A&D Waiver to either the FS Waiver or the CIH Waiver, the FSSA required individuals who must be transitioned off the A&D Waiver to go through an evaluation for placement on the FS Waiver.3 [Filing No. 58-2, at ECF p. 13.] If the evaluation revealed that the individual’s level of care rendered her eligible for the FS Waiver, she would be targeted for that waiver once a slot became available. [Filing No. 58-4, at ECF p. 11.] The FSSA acknowledges that it would be the “rare” occasion that an individual requiring nursing-facility level of care would not also meet the level of care required to be eligible for the FS Waiver and CIH Waiver. [Filing No. 58-2, at ECF 2 “Targeting” is a term of art employed by FSSA to connote FSSA’s act of informing an individual that they are eligible to be transitioned from the waiver waitlist onto the waiver. [ Filing No. 58-4, at ECF pp. 9-10.] 3 Individuals were “required” to undergo this FS Waiver evaluation in the sense that if they failed to do so, their A&D Waiver services would be terminated and they would not be placed in an alternative waiver program. [Filing No. 58-2, at ECF p. 13.]
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p. 15.] Unlike the FS Waiver, individuals transitioned off the A&D Waiver due to the 2011 Policy Change are not targeted for placement on the CIH Waiver. [Filing No. 58-4, at ECF p. 12.] Instead, an individual seeking placement on the CIH Waiver must file a “request for review,” during which BDDS determines whether the individual meets the needs-based criteria required for enrollment on the CIH Waiver. [Filing No. 58-4, at ECF p. 12.]
III. DISCUSSION The Court begins briefly with the pending Motion for Permissive Intervention and to Join in Pending Motion for Class Certification. [Filing No. 88.] Thomas Maertz, Colton Cole, Cody Cole, and Timothy Keister seek to intervene in this action as plaintiffs and seek to join in the pending Motion to Certify. [See Filing No. 88, at ECF p. 1-2.] They seek to do so not only to vindicate their own rights, but also to serve as class representatives. [Filing No. 88, at ECF p. 1.] The State criticizes but does not opposite the motion, and the Court therefore grants it as unopposed. The Court turns next to Plaintiffs’ Motion to Certify. Plaintiffs seek to certify the following class: Any and all persons, current and future, terminated from the A&D Waiver as a result of the 2011 Policy Change who require more services each year than are available through the FS Waiver and who are not enrolled in the CIH Waiver. [See Filing No. 74, at ECF p. 24 (setting forth the proposed class definition); Filing No. 105, at ECF p. 14 (suggesting a modification to the class definition set forth in the supplemental opening brief).] First, the Court addresses whether this putative class is sufficiently ascertainable. Next, the Court discusses the Rule 23(a) prerequisites to class certification. Finally, the Court analyzes whether the putative class meets Rule 23(b)(2). In the end, the Court concludes that the class is not sufficiently ascertainable, does not meet the four Rule 23(a) requirements, and is not certifia-
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ble under Rule 23(b)(2). For each of these reasons, the Court declines to certify the putative class.
A. Ascertainability and Indefiniteness The ascertainability or definiteness (two terms used interchangeably) of a class is not a prerequisite for class certification enumerated in the Federal Rules, but the Seventh Circuit has made clear that it is nonetheless a requirement for class certification. See Jamie S., 668 F.3d at 495 (declining to certify a putative class because, among other reasons, the class was “fatally indefinite”). To meet this requirement, “[t]he plaintiff must . . . show . . . that the class is indeed identifiable as a class.” Oshana, 472 F.3d at 513. When “there is no way to know or readily ascertain who is a member of the class,” the class “lacks the definiteness required for class certification.” Jamie S., 668 F.3d at 495; see Adashunas v. Negley, 626 F.2d 600, 604 (7th Cir. 1980) (holding that “the proposed class of plaintiffs is so highly diverse and so difficult to identify that it is not adequately defined or nearly ascertainable” to warrant certification). The parties vigorously dispute whether the class is sufficiently definite. The State points to several difficulties with the class definition that preclude its members’ identification. [Filing No. 97, at ECF p. 18-27.] First, the State argues that the individuals who meet the class definition must be identified by reviewing the file of each individual enrolled in the A&D Waiver— approximately 14,000 files. [Filing No. 97, at ECF p. 20-21 (citing Filing No. 95-1, at ECF p. 1).] This file review is required, says the State, because those terminated from the A&D Waiver due to the 2011 Policy Change are necessarily those individuals on the A&D Waiver that have a developmental disability, thus each file must be examined to check for such a diagnosis. [Filing No. 97, at ECF p. 20-21.] The State maintains that this process is more cumbersome than merely checking an electronic database to see if a developmental disability is listed. Each enrollee’s
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electronic file contains a maximum of three diagnoses. If a developmental disability is not of the diagnoses maintained electronically an examination of each enrollee’s full file would have to be conducted to determine the first requirement of class membership. [Filing No. 97, at ECF p. 2021.] Second, the State focuses specifically on the portion of the class definition that putative class members are those “who require more services each year than are available through the FS Waiver.” [See Filing No. 97, at ECF p. 21-25.] According to the State, determining whether an individual requires more services than offered through the FS Waiver—which is capped at $16,250 per year in services, [Filing No. 58-4, at ECF p. 18]—“is extremely complicated, individualized, fluctuating, and subjective,” for three reasons: (1) an individual’s last A&D Waiver budget is an inadequate proxy for services that an individual will require on the FS Waiver; (2) services available on the A&D Waiver and not the same as those available on the FS Waiver; and (3) budgeted dollars on the FS Waiver are not equivalent to budgeted dollars on the A&D Waiver because of differing approved rates, [Filing No. 97, at ECF p. 21-22].
Plaintiffs respond with several arguments. First, Plaintiffs contend that the State overlooks that Plaintiffs seek certification pursuant to Rule 23(b)(2) rather than Rule 23(b)(3), and that “ascertainability arguments are entitled to little weight where certification is sought under Rule 23(b)(2).” [Filing No. 105, at ECF p. 3.] Second, Plaintiffs argue that any difficulty that exists in identifying class members stems from the State’s own failure to track those affected by the 2011 Policy Change, and thus these difficulties should not preclude certification. [Filing No. 105, at ECF p. 7-8.] Third, Plaintiffs maintain that “the key [inquiry] is simply whether a person’s membership in the class may be ascertained by reference to objective criteria,” and that all of the criteria in the proposed class definition are indeed objective. [Filing No. 105, at ECF p. 9.] Finally, Plaintiffs argue that if determining what services an individual “requires” precludes
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class certification, “vindication of class-wide harms [would be] virtually impossible in a wide range of cases,” and in any event, the class definition “simply accepts the determination of individuals’ needs that have already been made by the State” when their A&D Waiver budgets were previously approved by the State. [Filing No. 105, at ECF p. 10-11.]
The Court must first briefly address Plaintiffs’ position that the ascertainability requirement is relaxed—if not unnecessary—when, as here, certification is sought pursuant to Rule 23(b)(2). Although Plaintiffs cite numerous out-of-circuit precedents and district court cases supporting their position, [see Filing No. 105, at ECF p. 4-5], Seventh Circuit authority—which, of course, binds this Court—belies Plaintiffs’ argument. Indeed, as Plaintiffs recognize, the Seventh Circuit in Jamie S. rejected class certification on ascertainability grounds even though certification was sought pursuant to Rule 23(b)(2). See 668 F.3d at 495-96, 498-99. And nothing in Jamie S. even implicitly suggests that a relaxed ascertainability standard applies to Rule 23(b)(2) classes. See also Adashunas, 626 F.2d at 604-05 (rejecting class certification in a Rule 23(b)(2) case on ascertainability grounds without suggesting that a relaxed ascertainability standard applies). Had a relaxed standard applied, the Seventh Circuit would have explained why the putative class did not even meet that standard, but it did not. The Court therefore rejects Plaintiffs’ argument that a relaxed ascertainability standard should apply in this case and instead applies the ascertainability requirements set forth by the Seventh Circuit.
The parties’ remaining arguments focus on whether the members of the putative class are indeed identifiable. For several reasons, the Court concludes that they are not. Specifically, the Court concludes that identifying putative class members who require more services each year than are available through the FS Waiver is a “complex, highly individualized task, and cannot be reduced to the application of a set of simple, objective criteria.” Jamie S., 668 F.3d at 496.
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Plaintiffs resist this conclusion by arguing that the services an individual “require[s]” is already known in that “the State has already made this determination” when the individual’s A&D Waiver budget was approved by the State according to what services she “needs to remain safely and securely in the community.” [Filing No. 105, at ECF p. 10-11.] Notably, this is the only method by which Plaintiffs suggest this determination—necessary for class membership—can be made. But the Court agrees with the State that the previously approved A&D Waiver budget is an inappropriate proxy for determining whether an individual requires more services each year than are available through the FS Waiver, rendering the identities of class members unascertainable short of a complex, highly individualized review of each A&D Waiver enrollee’s particular needs.
The evidence before the Court suggests that a single-year’s A&D Waiver budget approval is an inaccurate measure of what an individual will require when enrolled in the FS Waiver. Several examples are illustrative of its inaccuracy as a proxy. First, as the State contends, “[b]udgets—in other words, approved services—are not an accurate reflection of what services a waiver enrollee actually uses.” [Filing No. 97, at ECF p. 22.] The State points to four illustrative examples of enrollees whose approved budget was significantly greater than the services he or she utilized: (1) A&D Waiver budget of $18,836.63, yet utilized $8,282.57 in waiver services, [Filing No. 96-1, at ECF p. 6]; (2) A&D Waiver budget of $18,478.70, yet utilized $8,845.99 in waiver services, [Filing No. 96-1, at ECF p. 3]; (3) A&D Waiver budget of $30,228.48, yet utilized $16,674.98 in waiver services, [Filing No. 96-1, at ECF p. 2]; and (4) A&D Waiver budget of $19,526.40, yet utilized $15,494.76 in waiver services, [Filing No. 96-1, at ECF p. 7].
Plaintiffs do not dispute that utilization levels are often lower than the allotted A&D Waiver budget. Instead, they argue that the undisputed evidence remains that the approved A&D
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Waiver budget amount is “based on the State’s own determination of what an individual needs.” [Filing No. 105, at ECF p. 12.] While this may be true, utilization more accurately reflects whether an individual truly requires “more services each year than are available through the FS Waiver”—which is the operative question in identifying putative class members.
FS Waiver budgets are capped at $16,250.00. [Filing No. 58-4, at ECF p. 18.] Three of the four individuals discussed above—the first, second, and fourth—despite having A&D Waiver budgets greater than $16,250.00, utilized less than this amount in services. Even assuming the past year is an accurate reflection of an individual’s needs, these individuals could utilize the exact same amount of services on the FS Waiver as they did on the A&D Waiver. This is the proper frame of reference because—despite the amount approved by the State—if an individual only uses services in an amount available under the FS Waiver it cannot be said that the 2011 Policy Change impacted them at all. Such individuals would fall within Plaintiffs’ class definition but would not be harmed by the State’s conduct. Cf. Messner, 669 F.3d at 824-25 (cautioning against certifying an overly broad class that “would contain a vast number of people who could not have been harmed”) (emphasis added). Simply stated, it cannot be said that an individual requires more services than available under the FS Waiver when they utilized an amount of services available on the FS Waiver.
Plaintiffs further respond by attempting to explain why these individuals underutilized their budgets. For example, Plaintiffs point to evidence that two of the individuals “underutilized services because their provider was unable to staff the full level of services for which they were
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approved.”4 [Filing No. 105, at ECF p. 12-13 (citing Filing No. 104-3, at ECF p. 2-3).] Knowing the cause of the underutilization, however, does not undermine the fact that utilization more accurately captures the amount of services the individual requires, as she will still have access to that amount of services on the FS Waiver. If anything, Plaintiffs’ recognition that there are many reasons services might be underutilized in a given year, [see Filing No. 105, at ECF p. 13], reinforces Defendants’ position that determining whether an individual requires more services than available on the FS Waiver is a highly individualized inquiry that must be conducted on a caseby-case basis.
The foregoing discussion is all merely to say that one’s A&D Waiver budget is not an adequate proxy for the services one requires. It is true, however, that if utilization is the proper measure of requirement, one could simply look to an enrollee’s utilization level to determine whether they fall within the class, rather than, as Plaintiffs’ suggest, looking at her approved budget. The Court could alter the class definition to remedy this problem, but the evidence suggests that utilization amounts would not serve as an adequate proxy either. This is demonstrated by, among other things, the fact that an individual’s A&D Waiver budget for a single year could include one-time expenses such as home modifications that, if utilized, will not be required in subsequent years. [Filing No. 97, at ECF p. 23.]
For example, one representative enrollee’s A&D Waiver budget for one year was $21,015, but $13,695 of that was earmarked for a home modification. [Filing No. 96-1, at ECF p. 4.] The home modification portion of the budget, however, was never spent, thus the individ-
4 Plaintiffs make this argument, as well as many others, with respect to the Rule 23(a) requirements because, in their view, many of the State’s arguments regarding ascertainability are actually pertinent only to the Rule 23(a) requirements. [See Filing No. 74, at ECF p. 11.] The Court disagrees, finding many of the State’s arguments relevant to ascertainability and thus considers Plaintiffs’ responsive arguments in this section.
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ual only utilized $6,125.56 in waiver services that year. [Filing No. 96-1, at ECF p. 4.] During the next budget year, the individual’s A&D Waiver budget was $18,112.60, a substantial portion of which was earmarked for a home modification and, this time, was utilized in its entirety. [Filing No. 96-1, at ECF p. 5.] This example persuasively demonstrates why determining the services an individual will require on the FS Waiver cannot be done by simply looking back to a particular year’s approved A&D Waiver budget or a particular year’s utilized services. Instead, it will require an individualized assessment of each class member’s specific and changing needs.
Even if the above articulated concerns were not present, other difficulties prevent the A&D Waiver budget or utilization amount from functioning as an adequate proxy for the services an individual will require on the FS Waiver. To conclude otherwise would be to ignore the meaningful qualitative differences in the services offered under the two waiver programs. The A&D Waiver “provides an alternative to nursing facility admission for adults and persons of all ages with a disability,” specifically by providing services “for people who would require care in a nursing facility if waiver or other supports were not available,” [Filing No. 58-5, at ECF p. 12], while the FS Waiver provides services to persons “with a developmental disability” “in a range of community settings as an alternative to care in an intermediate care facility,” [Filing No. 58-7, at ECF p. 8]. The differences in populations each waiver program is designed to serve make services approved and utilized on one waiver a misleading measure of what services one will require on the other. [Filing No. 95-1, at ECF p. 2 (“The services available on the A&D Waiver are best suited to serve individuals who require nursing-facility level of care. The A&D Waiver is ill-equipped to address the needs of individuals with developmental disabilities who only meet ICF/IID level of care.”).] Indeed, “[d]ue to the nature of the services available on the A&D Waiver, for individuals enrolled on the A&D Waiver with specialized needs based on a devel-
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opmental-disability diagnosis, care plans/budgets are more often focused on caregiver needs than the needs of the waiver enrollee because those are needs A&D waiver services do not address.” [Filing No. 95-1, at ECF p. 2.]
Plaintiffs contend that the qualitative differences between the two budgets are overstated. [Filing No. 105, at ECF p. 22.] For example, Plaintiffs reviewed a ten-enrollee sample of putative class members, which revealed that eight of the ten “received services through the FS Waiver virtually identical in kind to services that could be received through the A&D Waiver.” [Filing No. 105, at ECF p. 22 (citing Filing No. 59-39).] This sample, however, proves the State’s point. Even if there is a substantial overlap in the services, they certainly are not identical. Thus, whether one looks to an enrollee’s past A&D Waiver budget or utilization amounts while enrolled in the A&D Waiver, neither are an appropriate measure of the services one will require when on the FS Waiver, as both parties acknowledge that precisely the same services are not offered. And indeed, putative class members are already receiving different services on the FS Waiver than they were on the A&D Waiver. [Filing No. 105, at ECF p. 22.] These qualitative differences in the services offered under the FS Waiver and the A&D Waiver preclude use of a previous year’s A&D Waiver budget or utilization levels as an appropriate proxy for determining whether an individual requires more services than offered under the FS Waiver.
The State also points to the fact that specific services that are provided under both waivers are not reimbursed at the same rates, such that $1 of A&D Waiver services is not equivalent to $1 of FS Waiver services. [Compare Filing No. 58-9, at ECF p. 2-4 (A&D Waiver Reimbursement Rates), with Filing No. 58-9, at ECF p. 9-10 (FS Waiver and CIH Waiver Reimbursement Rates).] Plaintiffs acknowledge this is true, and suggest that any difficulties this posed could simply be solved by replacing “who require more than $16,250.00 a year in waiver
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services” in their originally proposed class definition with “who requires more services each year than are available through the [FS] Waiver.” [Filing No. 105, at ECF p. 14.] The Court has incorporated this change to Plaintiffs’ proposed class definition, but cannot conclude that this change makes the putative class members any more ascertainable. The fact remains that the only method by which Plaintiffs suggest the services an individual “requires” can be ascertained is by using a previous year’s A&D Waiver budget as a proxy and simply looking to whether that budget is greater than the $16,250.00 cap on services under FS Waiver (assumingly, after one adjusts for the difference in reimbursement rates). But for all of the reasons set forth above, the A&D Waiver budget or utilization levels are inapt proxies for determining whether an individual requires more services than he or she can access on the FS Waiver.
Plaintiffs resist this conclusion on yet another ground, contending that the difficulty in identifying the services an enrollee will require on the FS Waiver budget goes not to ascertainability but to “difference[s] in relief amongst class-members,” which concerns the Court’s analysis of “numerosity, commonality, and/or typicality.” [Filing No. 105, at ECF p. 11.] All that the Court must decide regarding ascertainability, say Plaintiffs, “is simply whether the class is defined by reference to objective criteria,” and “[t]he level of an enrollee’s needs—what that person ‘requires’—is an objective criterion . . . that is made by the State at least once a year for every individual enrolled in its waiver programs.” [Filing No. 105, at ECF p. 11 (emphasis in original).] But this is simply a restatement of Plaintiffs’ position that the State’s approval of an individual’s A&D Waiver budget can be used as a proxy for the services one will require under the FS Waiver—an argument the Court has already rejected.
This would be a different case had the determination on which class membership depended—i.e., the services one requires under the FS Waiver—already been made by the State in some
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fashion. This was the case in N.B. v. Hamos, --- F.Supp.2d ----, 2014 WL 562637, at *4-5 (N.D. Ill. 2014), where the court certified a class of Medicaid enrollees and rejected the defendant’s argument that the putative class was unascertainable. There, the court recognized that “the diagnosis of mental and behavioral disorders is plainly an individualized and child-specific undertaking,” but reasoned that “the class definition proposed in this case presupposes such a diagnosis as a condition of class membership.” Id. at *5. It did so, the court continued, because “[t]he statutory scheme at [issue] provides the mechanism for identifying children in need of mental health services, [and] . . . [o]nce a child has been diagnosed as requiring such services . . . , he or she is entitled under the law to whatever services their doctors have recommended for maximum improvement.” Id. This distinguished Jamie S., the court reasoned, “where membership in the class could not be determined without individualized, court-approved assessments;” unlike in Jamie S., “once the class members have been identified—through the workable criteria set forth in the statute and adopted by Illinois regulation, not through a determination of the Court—the required treatment is not subject to further inquiry.” Id. Specifically, “[b]y accepting Medicaid funds, the State already has agreed to the standard defining what mental health treatment is ‘medically necessary,’” and thus “[t]here will be no need for the Court to monitor and review the propriety of those determinations.” Id. at *7. Other cases on which Plaintiffs rely have this same element not present here: a statute, regulation, or other mechanism readily determines class membership. See, e.g., A.M.T. v. Gargano, 2010 WL 4860119, at *3 (S.D. Ind. 2010) (holding that members of a putative class of children Medicaid recipients were ascertainable because “the key inquiry will be whether the FSSA denied all or part of an enrollee’s therapy request pursuant
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to § (b)(6) or § (b)(7)[, which] . . . can be determined by . . . [the] FSSA’s denial notices indicating its reasons for denying the requested treatments”).5
This case is like Jamie S. and distinguishable from Hamos in that the State here has not
already made the determinations necessary to conclude whether an individual requires more ser-
vices each year than are available through the FS Waiver. In other words, contrary to Plaintiffs
reliance on Hamos, the class definition does not “presuppose[]” that the necessary determina-
tions have already been made. Hamos, 2014 WL 562637, at *5. Plaintiffs try to fit this class
into Hamos’s reasoning by pointing to the prior A&D Waiver budget allotment as an already de-
termined measure of the putative class members’ needs. But for all the reasons discussed above,
the prior A&D Waiver budget is not an adequate proxy for the services one will require on the
FS Waiver and thus in no sense does the class definition in this case merely utilize a determina-
tion already made by the State.
This case is instead like Jamie S., as individuals who require more services than are
available under the FS Waiver are “not identified and remain unidentified.” 668 F.3d at 495
(emphasis in original); see Adashunas, 626 F.3d at 603 (“How does one identify class members
consisting of persons not identified?”). Indeed, these individuals will only be identified by an
individualized case-by-case assessment of the needs of every enrollee terminated from the A&D
5 At the hearing, Plaintiffs suggested that the law should not encourage governmental entities to avoid class certification by obscuring the bases for their decisions. But merely because the State provided the individuals in A.M.T. with the basis for its decision, which permitted the putative class to be identified with ease, does not mean the converse is true—that obscuring the basis for a decision would lead to the denial of certification. Furthermore, the Court’s ultimate conclusion in this case that the putative class is not sufficiently ascertainable is not reached due to the State’s intentional withholding of information or negligent recordkeeping. While the Court is somewhat surprised that the FSSA does not have more readily available information regarding the complete diagnoses of the enrollees in its waiver programs than it does, there is no reason to think that the State would have had reason to manage their databases in the manner desired by the Plaintiffs.
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Waiver program. A putative class is not sufficiently ascertainable if such a process is required. See Jamie S., 668 F.3d at 496 (“[I]dentifying disabled students who might be eligible for specialeducation services is a complex, highly individualized task, and cannot be reduced to the application of a set of simple, objective criteria. Every step of the child-find inquiry and IEP process under the IDEA is child specific and requires the application of trained and particularized professional educational judgment.”); Bowman v. IBM Corp., 1:11-cv-593-RLY-TAB, Dkt. 307 at 13 (S.D. Ind. 2013) (relying on Jamie S. in holding that the putative class was not ascertainable because “[s]everal steps across multiple programs are necessary to determine which individuals had their benefits improperly interrupted. Further, individuals with particularized knowledge of both Medicaid and the corresponding computer systems would be forced to make a subjective interpretation of handwritten notes, among other items, in deciding who belonged in the class. This is far from a mere reference to objective criteria to determine the class.”).
Plaintiffs are incorrect that concluding this class is not sufficiently ascertainable “would make vindication of class-wide harms virtually impossible in a wide range of cases.” [Filing No. 105, at ECF p. 10.] It is the particular factual peculiarities of this case that make the putative class members unascertainable. If, for example, the State eliminated certain services provided under the FS Waiver and Plaintiffs challenged that elimination, crafting an ascertainable class would in all likelihood be a relatively straightforward task.6 But this is not what occurred. After five years of allowing individuals with developmental disabilities who did not meet nursingfacility level of care to receive services under the A&D Waiver—which, by the express terms agreed to by the State and federal government, the A&D Waiver did not permit, [Filing No. 58-5,
6 The Court does not suggest or offer a view on whether such a class would otherwise be certifiable, only that a stronger argument could be made that the putative class members are ascertainable.
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at ECF p. 11]—the State issued the 2011 Policy Change to comply with the terms of the agreedupon waiver, [Filing No. 58-9, at ECF p. 32]. As a result of the 2011 Policy Change, individuals who were improperly receiving waiver services under the A&D Waiver, were targeted for transition to the more limited FS Waiver—that is, a waiver program designed to serve individuals requiring their level of care. [Filing No. 58-8, at ECF p. 7] The State’s initial error and subsequent correction created the rather peculiar situation underlying this case: individuals may suffer overall service reductions, yet the Court is bereft of a classwide method by which to measure whether an individual requires more services than those offered on the FS Waiver.
Having concluded that Plaintiffs’ proposed method of determining the services an individual requires on the FS Waiver is inadequate, the only option left would be an arduous individual review of each case file. But even this would not be sufficient, as no mere ministerial review of case files could resolve the difficulty created by the fact that the two waiver programs, and the services offered thereunder, are geared toward individuals with different levels of need. [Filing No. 95-1, at ECF p. 2.] Indeed, Plaintiffs acknowledge that the two waivers do not offer the same services and that some putative class members are receiving services under the FS Waiver that are not the same as those under the A&D Waiver. [Filing No. 105, at ECF p. 22.] These qualitative differences alone ultimately undermine any value an individual’s prior A&D Waiver budget has for determining the services individuals require when enrolled in the FS Waiver.
For all of the foregoing reasons, “there is no way to know or readily ascertain who is a member of the class.” Jamie S., 668 F.3d at 495. The only way to identify individuals who require more services each year than are available through the FS Waiver is via a Court mandated individualized inquiry into the specific needs of each enrollee. And when this is the case, the
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putative class is not sufficiently ascertainable to permit certification. See id. at 495-96. Accordingly, Plaintiffs Motion to Certify must be denied.
B. Federal Rule of Civil Procedure 23(a) Even if the Court assumes that the putative class is sufficiently ascertainable, Plaintiffs have also failed to establish that the four Rule 23(a) requirements are met. Rule 23(a) sets out four threshold requirements for class certification: “(1) numerosity (a class [so large] that joinder of all members is impracticable); (2) commonality (questions of law or fact common to the class); (3) typicality (named parties’ claims or defenses are typical . . . of the class); and (4) adequacy of representation (representatives will fairly and adequately protect the interests of the class).” Kress v. CCA of Tenn., LLC, 694 F.3d 890, 892-93 (7th Cir. 2012) (alteration in original) (citation and quotation marks omitted). Plaintiffs bear the burden of proving that these four requirements are met. See Oshana, 472 F.3d at 513. The parties dispute whether Plaintiffs have established any of the four Rule 23(a) requirements. The Court will address the four requirements out of order, beginning with commonality as that element predominated the parties’ arguments. After concluding that commonality is not met, the Court briefly addresses the remaining three requirements.
1. Commonality Commonality requires there to be “questions of law or fact common to the class,” Fed. R. Civ. P. 23(a)(2), although “even a single common question will do,” Wal-Mart Stores, Inc., v. Dukes, 131 S. Ct. 2541, 2556 (2011) (alterations, citations, and quotation marks omitted). “But the Supreme Court explained in Wal-Mart that superficial common questions—like . . . whether each class member ‘suffered a violation of the same provision of law’—are not enough.” Jamie S., 668 F.3d at 497 (quoting Wal-Mart, 131 S. Ct. at 2551). Instead, Plaintiffs’ “claims must de-
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pend upon a common contention . . . [t]hat . . . must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart, 131 S. Ct. at 2551. In this sense, “the raising of common ‘questions’—even in droves,” is not enough; the key to commonality is whether a classwide proceeding can “generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.” Id. (emphasis in original) (citation and quotation marks omitted).
An analysis of the Rule 23(a) prerequisites, including commonality, will “[f]requently . . . entail some overlap with the merits of the plaintiff’s underlying claim.” Id.; see Jamie S., 668 F.3d at 498 (relying on Wal-Mart when analyzing the merits of the plaintiffs’ claims in deciding whether commonality was met). The Supreme Court’s consideration of the merits of the plaintiffs’ claims in Wal-Mart provides this Court with guidance as to how the merits can impact the commonality inquiry. In that case, the Supreme Court found that commonality was not met in a nationwide class action on behalf of female Wal-Mart employees who alleged sex discrimination under Title VII. See Wal-Mart, 131 S. Ct. at 2547. The Supreme Court reasoned:
In this case, proof of commonality necessarily overlaps with respondents’ merits contention that Wal-Mart engages in a pattern or practice of discrimination. That is so because, in resolving an individual’s Title VII claim, the crux of the inquiry is the reason for a particular employment decision. Here respondents wish to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored. Id. at 2552 (emphasis in original).
a. The legal standard for an integration-mandate claim
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To assess whether commonality is met, the Court must begin with Plaintiffs’ legal claim. Plaintiffs’ sole legal claim is that the 2011 Policy Change—by which they were transferred from the A&D Waiver to the FS Waiver—violates the integration mandate found in the ADA and the Rehabilitation Act. [Filing No. 1, at ECF p. 17-18 (“The elimination of persons with developmental disabilities who do not . . . routinely require skilled nursing services[] from the A&D Waiver violates the ‘integration mandate’ of the [ADA] and the Rehabilitation Act.”).] The integration mandate found in the ADA and Rehabilitation Act are substantively identical, and thus the Court treats them as such. See Amundson ex rel. Amundson v. Wis. Dep’t of Health Servs., 721 F.3d 871, 872 (7th Cir. 2013) (treating them as identical); see also Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 599, 607 (7th Cir. 2004) (noting that the “ADA’s integration regulation is modeled after [the Rehabilitation Act’s] regulation” and thus “courts construe and apply them in a consistent manner”).
The integration mandate has its statutory roots in the anti-discrimination provision of the ADA. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 587 (1999). This provision states: “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 Olmstead, the Supreme Court assessed whether this provision “may require placement of persons with mental disabilities in community settings rather than in institutions,” and answered with “a qualified yes.” 527 U.S. at 587. It held that “[s]uch action is in order 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 rea-
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sonably accommodated, taking into account the resources available to the State7 and the needs of others with mental disabilities.” Id.; see Radaszewski, 383 F.3d at 607 (stating that Olmstead “held that the ‘unjustified institutional isolation’ of a disabled individual receiving medical care from a State amounts to an actionable form of discrimination under Title II”) (quoting Olmstead, 527 U.S. at 597-603).
As Wal-Mart teaches, important to assessing commonality is defining the specific harm a plaintiff must suffer to have a cognizable integration-mandate claim; this is necessary to determine whether a classwide proceeding can “generate common answers apt to drive the resolution of the litigation.” Wal-Mart, 131 S. Ct. at 2551. Plaintiffs argue as if a cognizable integration mandate claim lies any time a State reduces an individual’s services. Specifically, Plaintiffs contend that the integration mandate extends not only to those who are subject to “unjustified institutional isolation,” Olmstead, 527 U.S. at 600, but also to “person[s] for whom participation in community life is curtailed, even if they are able to remain living in their own homes.” [Filing No. 105, at ECF p. 17 n.8.] As confirmed by the Court at the hearing, Plaintiffs’ only authority for this proposition are two out-of-circuit district court cases, [see Filing No. 105, at ECF p. 17 n.8 (citing Lane v. Kitzhaber, 841 F.Supp.2d 1199, 1205 (D. Or. 2012); K.M. ex rel. D.G. v. Hyde Park Cent. Sch. Dist., 381 F.Supp.2d 343, 360 (S.D.N.Y. 2005))]. Plaintiffs agreed that the Seventh Circuit has never ascribed to this view of the integration mandate. Indeed, in Amundson, the Seventh Circuit suggested that actual institutionalization is required.
The plaintiffs in Amundson alleged that Wisconsin’s cuts to services provided to the developmentally disabled violated the integration mandate. 721 F.3d at 872. The Seventh Circuit
7 The parties did not focus on the interplay between Olmstead’s availability of resources factor, the waiver language requiring cost neutrality, and the joint federal/state pay structure of the Medicaid plan, so the Court will not either. While it may be an issue the parties reserve for the merits, it looms large on the horizon.
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held that this claim was not ripe because “[n]one of the plaintiffs has been placed in an institution,” id. at 873, and thus “there [was] no legal injury,” id. at 874. Although other circuits have held that the integration mandate covers those that are “at risk of institutionalization,” e.g., Pashby v. Delia, 709 F.3d 307, 322 (4th Cir. 2013), Amundson suggests that an individual asserting an integration-mandate claim must face institutionalization before a claim can be brought, see 721 F.3d at 874 (stating that if Wisconsin cut services “without landing any developmentally disabled person in an institution,” it “has fulfilled its obligation under federal law”).8 Therefore, in assessing whether commonality exists, the Court will apply the integration-mandate standard of institutionalization suggested in Amundson rather than Plaintiffs’ proposed standard of curtailment of services.
b. Plaintiffs’ proposed common questions are insufficient Plaintiffs contend that commonality is met because a common question of law exists. [See Filing No. 74, at ECF p. 31-32.] Specifically, Plaintiffs assert that all members of the putative class “are subject to the 2011 Policy Change and their concomitant removal from the A&D Waiver.” [Filing No. 74, at ECF p. 31.] The common question of law, say Plaintiffs, is “[w]hether these policies result in the violation of class-members’ rights under the [ADA] and [Rehabilitation Act].” [Filing No. 74, at ECF p. 32.] But as Wal-Mart and Jamie S. made clear, “superficial common questions—like . . . whether each class member ‘suffered a violation of the same provision of law’—are not enough.” Jamie S., 668 F.3d at 497 (quoting Wal-Mart, 131 S.
8 The Seventh Circuit in Amundson held that the plaintiffs’ claims were not ripe because none had yet “land[ed] . . . in an institution.” 721 F.3d at 874. This too could present a problem for Plaintiffs’ integration-mandate claim. Ripeness is usually an issue to be resolved ahead of others. But the State did not pursue a ripeness challenge, and it is possible that there may be an individual in the putative class whose claim might be ripe under Amundsen. Because there are numerous other grounds on which to decide this motion, the Court will not pursue it at this time either.
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Ct. at 2551). Therefore, Plaintiffs’ proposed common question of whether the 2011 Policy Change violated the integration mandate is stated at a level of generality too high to establish commonality. Were this all Plaintiffs offered, the Court would not need to proceed further. On reply, however, Plaintiffs further explain their view of commonality.
Although Plaintiffs’ reply brief focuses primarily on assailing the State’s arguments rather than setting forth what common question exists, they do attempt to clarify their view of how commonality is met. Plaintiffs assert that the 2011 Policy Change is the “‘glue’ uniting the class.” [Filing No. 105, at ECF p. 16.] It is so, say Plaintiffs, because the 2011 Policy Change reduced putative class members’ services such that “all class-members have either suffered unnecessary institutionalization or segregation, or are ‘at serious risk [thereof].’” [Filing No. 105, at ECF p. 17 (quoting Pashby, 709 F.3d at 322); see Filing No. 105, at ECF p. 17 (arguing that “a person receiving fewer services designed to ensure community integration is, almost by definition, less integrated into the community”).]
The Court must first reject Plaintiffs’ attempt to present a common question that relates to putative class members’ segregation or diminution in services. As previously made clear, Amundson requires institutionalization to state a cognizable integration-mandate claim. See 721 F.3d at 874. This leaves Plaintiffs’ contention that the 2011 Policy Change is the “glue” that holds the class together because it led to the “unnecessary institutionalization” of putative class members. [Filing No. 105, at ECF p. 17.] However, once the Court drills down on this contention, it is clear that this argument also lacks merit.
The Supreme Court in Wal-Mart focused on whether there was “some glue holding the alleged reasons for [the challenged employment] decision together” because the reasons for a given employment decision are what determines liability under Title VII. See Wal-Mart, 131 S.
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Ct. at 2552 (“[I]n resolving an individual’s Title VII claim, the crux of the inquiry is ‘the reason for a particular employment decision.’”) (quoting Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 876 (1984)). Such is not the case here. Unlike Title VII, a successful integrationmandate claim, at least at the threshold, does not look to the reasons given for a decision, but whether the challenged State action—here, the 2011 Policy Change—caused the plaintiff to face institutionalization. See Amundson, 721 F.3d at 874. If, as Plaintiffs suggest, the 2011 Policy Change is the glue holding the class together, it would have to be the policy that caused the class members to face institutionalization such that “examination of all the class members’ claims for relief will produce a common answer to the crucial question [did the 2011 Policy cause them to be institutionalized].” Wal-Mart, 131 S. Ct. at 2552. In other words, the “truth or falsity” of whether the 2011 Policy Change caused the institutionalization of class members must be “capable of classwide resolution” such that the Court can resolve the issue for “each one of the claims in one stroke.” Id. at 2551.
Such a one-stroke resolution is impossible. First, there is no evidence that the 2011 Policy Change itself directly caused any of the putative class members to be institutionalized. This is unsurprising given that the 2011 Policy Change merely transitioned individuals who the State wrongly placed on the A&D Waiver to the FS Waiver, both of which are designed to allow enrollees to receive services in the community. [See Filing No. 58-5, at ECF p. 8; Filing No. 58-8, at ECF p. 2.] Therefore, the most that can be said about the 2011 Policy Change is that it caused some class members to receive fewer community-based services, which under Amundson is insufficient to establish an integration-mandate claim. In other words, it cannot be said that the 2011 Policy Change itself caused any class members to be institutionalized, and thus the 2011 Policy Change could not violate the integration mandate. This precludes the 2011 Policy Change
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from being the “glue” holding the class claims together, as a policy that did not cause any legal
harm cannot be “an issue that is central to the validity of each one of the claims.” Wal-Mart, 131
S. Ct. at 2551; see also Johnson v. Meriter Health Servs. Employee Retirement Plan, 702 F.3d
364, 369 (7th Cir. 2012) (recognizing that commonality was not met in Wal-Mart because “no
company-wide policy was being challenged,” as one of the two company-wide policies to which
the plaintiffs pointed “could not violate Title VII”). Accordingly, commonality is not met on this
ground.
c. The class definition cannot be altered such that certification is warranted, as Plaintiffs’ challenge to the 2011 Policy Change is misguided
As a fallback, Plaintiffs suggest the Court can cure any problems by exercising its author-
ity to refine the proposed class definition. See, e.g., Messner, 669 F.3d at 825 (citing cases). But
the problems with Plaintiffs’ proposed class run deeper than the class definition; they are rooted
in the misguided nature of Plaintiffs’ contention that the 2011 Policy Change is the “glue” that
renders the case certifiable. From the beginning, Plaintiffs have focused on the legality of the
2011 Policy Change, but this change is not the true reason for their alleged legal harm (the receipt of insufficient services such that institutionalization was required).9 Instead, the 2011 Poli-
cy Change brought the FSSA’s waiver programs in compliance with the express terms of the
waivers. An unfortunate possible consequence of that change is that some developmentally dis-
9 Again, this is assuming that any of the putative class members actually face institutionalization. There is no evidence before the Court that this is the case. According to Amundson, if all that resulted from the 2011 Policy Change is that putative class members’ services were reduced “without landing any developmentally disabled person in an institution,” the State “has fulfilled its obligation under federal law.” 721 F.3d at 874. And if this is the case, Plaintiffs’ proposed class is fatally overbroad. See Messner, 669 F.3d at 825 (“[A] class should not be certified if it is apparent that it contains a great many persons who have suffered no injury at the hands of the defendant.”) (citation and quotation marks omitted); see also Oshana, 472 F.3d at 514. The Court need not rest its decision on this ground, however, because there are several other more thoroughly briefed bases to deny certification.
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abled individuals may receive fewer services. Any legal challenge to that fact—again, assuming the receipt of fewer services caused at least some class members to face institutionalization— should not be predicated on the State’s decision to comply with its waiver agreement with the federal government. Instead, the true cause of any potential harm is the confluence of policies that apply to all FS Waiver enrollees that limit their services: (1) the FS Waiver’s budget cap10; and (2) the enrollee’s exclusion from the CIH Waiver (which, like the FS Waiver, is designed for individuals with developmental disabilities and is not subject to the FS Waiver’s budget cap, [see Filing No. 58-7, at ECF p. 8; Filing No. 30-1, at ECF p. 2]).
At least two problems prevent the Court from certifying a class to challenge the confluence of these policies. First and foremost, Plaintiffs have not sought to challenge the policies, and it is of course not the Court’s role to assert claims on Plaintiffs’ behalf. Second, even if the Court endeavored to do so, the record is insufficient to establish that commonality would be met for Plaintiffs’ proposed class to pursue a challenge to these policies.
Commonality would not be present for such a class because there are several distinct scenarios that could preclude putative class members from receiving services under the CIH Waiver. The record reflects at least three such scenarios: (1) their CIH Waiver applications were denied because they did not meet the eligibility criteria for placement on that waiver; (2) they failed to
10 This budget cap is, at least in part, dictated by the requirement that each waiver be cost-neutral compared to the cost of serving waiver enrollees through a traditional Medicaid institutional placement. See 42 U.S.C. § 1396n(c)(2)(D). The Court highlights this fact to note that any injunction Plaintiffs seek could not countermand terms of the state-federal waivers that are dictated by federal law.
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apply for placement on the CIH Waiver11; or (3) as Plaintiffs contend, the BDDS failed to inform
them about, or affirmatively discouraged them from applying for, the CIH Waiver.12 [See Filing
No. 74, at ECF p. 9-13 (recognizing that putative class members “might receive services through
the CIH Waiver” but that the placement criteria are rather limited and that there is evidence that
BDDS has discouraged individuals from applying for services under that waiver).] Because the
only cognizable13 legal harm—institutionalization—could have been caused by the FS Waiver
budget cap in conjunction with any of these three alternative scenarios, there would be no com-
mon question with a “single answer” for all the class members. Jamie S., 668 F.3d at 497 (em-
phasis in original). In other words, no common question of law exists between two putative class
members who face institutionalization, one because she does not meet the CIH Waiver’s eligibil-
11 This category also includes individuals who did not appeal their termination from the A&D Waiver. Plaintiffs acknowledge that some individuals who faced termination from the A&D Waiver due to the 2011 Policy Change were enrolled in the CIH Waiver. [Filing No. 74, at ECF p. 23.] And this includes at least one individual who appealed her termination from the A&D Waiver and was subsequently “offered a slot on the CIH Waiver.” [Filing No. 74, at ECF p. 23 (citing Filing No. 59-34, at ECF p. 39-40).] 12 Plaintiffs do not dispute or otherwise suggest that putative class members only fall into one of these categories. Indeed, the Court questioned Plaintiffs at the hearing regarding why putative class members should not be required to seek enrollment in the CIH Waiver before being able to argue that the State’s policies are unlawful. Plaintiffs did not dispute that some putative class members did not pursue the CIH Waiver, but argued that whether they did or not is a matter of exhaustion and, further, that nothing in the law requires exhaustion before filing an integrationmandate suit. Regardless of whether this is true, the fact that some putative class members face a reduction in services and perhaps institutionalization due to their own inaction or either of the other two above stated reasons also undermines commonality in that it prevents there from being a common question of law that the Court could answer for the entire class “in one stroke.” WalMart, 131 S. Ct. at 2551. 13 Again, the Court is mindful that Plaintiffs contend that any curtailment in participation in community life is a legal wrong, even if they are able to remain living in their own homes. As noted, relevant Seventh Circuit precedent requires institutionalization to support a violation. It is for the Seventh Circuit, not this Court, to determine whether the teachings of Amundson should be modified or expanded.
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ity criteria and one because, although eligible, has (allegedly) had the CIH Waiver’s existence hidden from her by the FSSA.
This would distinguish such a claim (had Plaintiffs made it) from other cases where courts have certified integration-mandate classes even after Wal-Mart and Jamie S. In those cases, a single state policy was challenged that directly caused the unnecessary institutionalization of disabled individuals. Cf. Bolden v. Walsh Const. Co., 688 F.3d 893, 898 (7th Cir. 2012) (“This single national policy was the missing ingredient in Wal-Mart.”). For example, in Hamos the court found that commonality was present because the plaintiffs challenged “whether the state provides intensive mental health treatment to children only in hospitals and institutions and fails to provide any intensive, individualized care that is community-based or in the home.” 2014 WL 562637, at *11. The court explained, “According to the plaintiffs, the State covers intensive treatment only in an institutional setting and does not cover any home and communitybased care other than weekly outpatient counseling and medication management. If this is so, then every plaintiff is suffering the same injury as a result of a general policy of the State—even if the services recommended for each patient vary among the class members.” Id. Here, however, putative class member’s injuries could be caused by at least any of the three above stated scenarios.
The Court follows this rabbit trail only to demonstrate that problems would still exist with class certification even if Plaintiffs had more appropriately focused their legal claim on the State’s policies that truly cause their alleged harm. The fact remains, however, that this is not the legal claim Plaintiffs’ chose to pursue. Instead, as detailed above, they challenged the 2011 Policy and presently maintain that it is the “‘glue’ uniting the class.” [Filing No. 105, at ECF p. 1619.] But merely identifying the 2011 Policy Change does not explain what common question
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can be answered for the class “in one stroke,” Wal-Mart, 131 S. Ct. at 2551, and is no different than the superficial question Plaintiffs originally proposed. Accordingly, with respect to the claim Plaintiffs did pursue, they “have identified no common factual or legal question that satisfies the Rule 23(a)(2) standard.” Jamie S., 668 F.3d at 497-98.14
2. Numerosity, Typicality, and Adequacy of Representation Because Plaintiffs failed to carry their burden to establish commonality, the Court only briefly addresses the remaining three Rule 23(a) requirements: numerosity, typicality, and adequate of representation. Beginning with numerosity, it requires the putative class to be “[so large] that joinder of all members is impracticable.” Kress, 694 F.3d at 892 (alteration in original). Plaintiffs go to great lengths to demonstrate that their proposed class is sufficiently numerous to render joinder impracticable. [See Filing No. 74, at ECF p. 27-31.] The Court, however, cannot adequately assess, let alone ultimately decide, whether numerosity is met. This is because, for all the reasons discussed in Section III.A above, putative class members are not ascertainable. If class membership is unascertainable, there is no basis for the Court to conclude that the putative class is “[so large] that joinder of all members is impracticable.” Kress, 694 F.3d at 892 (alteration in original). Therefore, the Court concludes that numerosity is not met. The typicality requirement is met if the named Plaintiffs’ claim “arises from the same event or practice or course of conduct that gives rise to the claims of other class members.” Oshana, 472 F.3d at 514 (citation and quotation marks omitted). As noted by the Supreme Court, “[t]he commonality and typicality requirements of Rule 23(a) tend to merge.” Wal-Mart, 131 S. Ct. at 2551 n.5 (alteration in original) (citation and quotation marks omitted). This is true
14 Even though the merits of Plaintiffs’ claims significantly overlap with the commonality inquiry, the Court expresses no view regarding the ultimate merits of any individual Plaintiffs’ claim. It only decides that the integration-mandate claim as framed does not present a common question of law, the answer of which could settle the matter for all members of the putative class.
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here, as the same difficulties with Plaintiffs’ attempt to establish commonality prevent them from establishing typicality. As discussed at length regarding commonality, the harm alleged by Plaintiffs could be caused by a number of FSSA policies and actions, or even caused by putative class members’ own choices. The Court is therefore unable to conclude that typicality is met, as Plaintiffs’ integration-mandate claim does not arise from the “same event or practice or course of conduct.” Oshana, 472 F.3d at 514 (citation and quotation marks omitted).
Finally, the Court addresses whether “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). This inquiry is composed of two parts: “the adequacy of the named plaintiff’s counsel, and the adequacy of representation provided in protecting the different, separate, and distinct interest[s] of the class members.” Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 598 (7th Cir. 1993) (citation and quotation marks omitted). To adequately represent the class, the representative plaintiff “must be part of the class and possess the same interest and suffer the same injury as the class members.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997) (citation and quotation marks omitted). The Court has no reason to doubt the adequacy of Plaintiffs’ counsel. However, “[t]he adequacy-of-representation requirement tend[s] to merge with the commonality and typicality criteria of Rule 23(a), which serve as guideposts for determining whether . . . maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Id. at 626 n.20 (citation and quotation marks omitted). For the same reasons the Court concluded that commonality and typicality are not met, the Court cannot conclude that all Plaintiffs’ legal injuries were caused by the same policy such that they would adequately represent the interests
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of absent class members. Accordingly, the Court cannot conclude that the adequacy-ofrepresentation requirement is met.
C. Federal Rule of Civil Procedure 23(b)(2) The Court turns finally to whether the putative class is certifiable under Rule 23(b)(2). For many of the reasons already articulated above, the Court concludes that it is not. This provides a third independent basis to deny Plaintiffs’ Motion to Certify. A class may be certified under Rule 23(b)(2) if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Wal-Mart, 131 S. Ct. at 2557 (citation and quotation marks omitted). Moreover, “[t]he injunctive or declaratory relief sought must be final to the class as a whole.” Jamie S., 668 F.3d at 499 (citation and quotation marks omitted). “In other words, Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.” Wal-Mart, 131 S. Ct. at 2557. The difficulty with Plaintiffs’ proposed class is revealed by Plaintiffs’ lack of clarity regarding the relief sought and, correspondingly, an explanation of how that requested relief meets the requirements of Rule 23(b)(2). In their supplemental opening brief, Plaintiffs do not identify the specific remedy they seek in arguing that Rule 23(b)(2) is met. Instead, they merely assert that “this action concerns the enforcement of generally applicable practices of the State to indi-
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viduals enrolled in Medicaid waiver programs. The state has acted or refused to act on grounds applicable to the class as a whole.” [Filing No. 74, at ECF p. 35.] Such a statement, even if otherwise sufficient, only addresses the first clause of Rule 23(b)(2). It does not identify the relief sought or explain why that relief is “final” and “appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).
The State responds by identifying two instances earlier in the litigation where Plaintiffs articulated the injunctive relief sought. [Filing No. 97, at ECF p. 33.] Specifically, the State notes that Plaintiffs’ Complaint requested an injunction requiring the FSSA to continue providing the putative class services through the A&D Waiver, [Filing No. 97, at ECF p. 33 (citing Filing No. 1, at ECF p. 18)], and the Intervenor Plaintiffs’ Complaint similarly requests an injunction requiring the FSSA to provide “adequate services” to the putative class members, [Filing No. 97, at ECF p. 33 (citing Filing No. 88-1, at ECF p. 15)]. The State argues that this type of relief fails to meet Rule 23(b)(2) for the same reasons that rule was not met in Jamie S.—namely, that the requested injunction would not be “final” because “the relief sought would merely initiate a process through which highly individualized determinations” would have to be made regarding what services are “adequate” for each putative class member. [Filing No. 97, at ECF p. 33 (quoting Jamie S., 668 F.3d at 499).]
When the Court pressed Plaintiffs at the hearing to articulate the precise injunctive relief sought, Plaintiffs were equivocal in that they offered two very different potential injunctions: (1) ensure that those terminated from the A&D Waiver as a result of the 2011 Policy Change have access to the services they need; or (2) require the State to inform all class members of the availability of the CIH Waiver and allow them to apply for it before they lose services. Plaintiffs have never articulated, however—in their briefing or at the hearing—how either of these injunc-
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tions meets the requirements of Rule 23(b)(2). This failure alone precludes certification of the
class.
But even if the Court inferred the reasons Plaintiffs believe these injunction to be suffi-
cient, both proposed injunctions fall short of the Rule 23(b)(2) requirements. For the same rea-
sons the putative class is not ascertainable—particularly the difficulty in determining whether
one “requires” more services than available on the FS Waiver—an injunction requiring the FSSA
to ensure that those terminated from the A&D Waiver receive the services they require would
“merely initiate a process through which highly individualized determinations of liability and
remedy are made.” Jamie S., 668 F.3d at 499. Individuals are placed on a waiver program for
which they qualify, after which they submit an individualized budget plan to the FSSA that it can
either accept or reject. [Filing No. 58-4, at ECF p. 6.] Therefore, like the relief requested in Ja-
mie S., this “kind of relief would be class-wide in name only, and it would certainly not be final.”
668 F.3d at 499. Put differently, while such an injunction would affect the entire class, it would
“require[] [at least hundreds if not thousands] of individual determinations of class membership, liability, and appropriate remedies.”15 Id.
Plaintiffs’ other requested remedy fares no better. Requiring the FSSA to inform all pu-
tative class members of the availability of the CIH Waiver would only potentially remedy the
alleged legal violation for a subset of class members. As made clear in Section III.B above, the
alleged violation of the integration mandate is caused by a variety of FSSA policies or class
15 Plaintiffs’ reliance on B.N. ex rel A.N. v. Murphy, 2011 WL 4496510 (N.D. Ind. 2011), is misplaced. In that case, the plaintiffs challenged the State’s cap on respite care services. See id. at *2-3. The court concluded that Rule 23(b)(2) was met and, in doing so, rejected the State’s argument that “respite care services are highly personalized” and “based on the needs of each individual client” because the plaintiffs were challenging a generally applicable policy of capping respite care services. Id. at *5. But as discussed at length above, and unlike in B.N., putative class members in this case are not readily ascertainable; even if they were, the ultimate cause of any institutionalization they face is not uniform among putative class members.
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members’ inaction—namely, the FS Waiver budget cap combined with an individual’s failure to receive services via the CIH Waiver. But there is no evidence of a single cause of the class members’ failure to be enrolled in the CIH Waiver. Without such uniformity, different injunctions would be required to remedy the alleged legal violation depending on class members’ particular circumstances. Rule 23(b)(2), therefore, could not be satisfied because no “single injunction or declaratory judgment would provide relief to each member of the class.” Wal-Mart, 131 S. Ct. at 2557 (emphasis added).
For these reasons, Plaintiffs have failed to show that the putative class is certifiable under Rule 23(b)(2). Accordingly, this provides a third independent basis for denying Plaintiffs’ Motion to Certify.
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IV. CONCLUSION The Court is not unsympathetic to the developmentally disabled individuals who are being transitioned off of the more generous but inappropriate A&D Waiver, to a less generous waiver program that corresponds to their appropriate level of care following the 2011 Policy Change. Based on the terms of the State’s Medicaid Waivers that are approved by the federal government, the 2011 Policy Change was necessary to comply with the requirements of those waivers. This change affected the services provided to a number of developmentally disabled individuals. However, the proposed class definition makes class membership impossible to ascertain without a painstaking and highly individualized review of approximately 14,000 case files. Moreover, even if class membership could easily be ascertained, Plaintiffs have failed to carry their burden of establishing the Rule 23(a) requirements, particularly due to their failure to identify a common question that unites them. Finally, Plaintiffs have also failed to identify a single injunction that would allow the Court to vindicate any found violations of the integration mandate for the class as a whole, or in such a manner that the injunction would be final. Accordingly, this case is not one where class treatment of the claims is warranted. For these reasons, Plaintiffs’ Motion for Permissive Intervention and to Join in Pending Motion for Class Certification is GRANTED, [Filing No. 88], and Plaintiffs’ Motion to Certify is DENIED, [Filing No. 3].

03/24/2014

_______________________________
Hon. Jane Magnus-Stinson, Judge United States District Court Southern District of Indiana

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Distribution via ECF only to all counsel of record - 40 -

 
 Case 1:13-cv-00957-JMS-MJD Document 128 Filed 06/26/14 Page 1 of 2 PageID #: 4058

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

KARLA STEIMEL,

)

Plaintiff,

)

)

vs.

)

)

DEBRA MINOTT, IN HER OFFICIAL CAPACITY

)

AS SECRETARY OF THE INDIANA FAMILY AND )

SOCIAL SERVICES ADMINISTRATION, ET AL.,

)

Defendants,

)

)

vs.

)

)

THOMAS MAERTZ, COLTON COLE, CODY

)

COLE, AND TIMOTHY KEISTER,

)

Intervenor Plaintiffs.

)

1:13-cv-957-JMS-MJD

ORDER

Presently pending before the Court is Defendants’ Motion to Dismiss Plaintiff Karla

Steimel’s claims for lack of Jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).

[Filing No. 120.] Defendants contend that Ms. Steimel has conceded in previous briefing in this

case that her claims are moot. [Filing No. 121 at 1-2.] Because Ms. Steimel has conceded the

mootness of her claims, say Defendants, this Court lack subject-matter jurisdiction over her

claims. [Filing No. 121 at 2.]

Ms. Steimel agrees that, in light of the Court’s earlier denial of her Motion to Certify a

Class, [see Filing No. 112], “her individual claims are moot and that she may be dismissed as a

plaintiff.” [Filing No. 123 at 2.] In so conceding, however, “Ms. Steimel reserves her right to

appeal the denial of her [Motion to Certify a Class] following final judgment in this cause.”

[Filing No. 123 at 2 (citing U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 404 (1980)).]

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Case 1:13-cv-00957-JMS-MJD Document 128 Filed 06/26/14 Page 2 of 2 PageID #: 4059

The Court agrees with the parties that Ms. Steimel’s claims are moot, and therefore that this Court lack subject-matter jurisdiction over her claims. See Pakovich v. Verizon LTD Plan, 653 F.3d 488, 492 (7th Cir. 2011) (“Federal courts lack subject matter jurisdiction when a case becomes moot.”). Accordingly, Defendants’ Motion to Dismiss Ms. Steimel’s claims is GRANTED. [Filing No. 120.] No partial final judgment shall issue at this time.

06/26/2014

_______________________________
Hon. Jane Magnus-Stinson, Judge United States District Court Southern District of Indiana

Distribution via ECF only to all counsel of record

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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

THOMAS MAERTZ, COLTON COLE, AND CODY )

COLE,

)

Plaintiffs-Intervenors,

)

)

vs.

)

)

DEBRA MINOTT, IN HER OFFICIAL CAPACITY

)

AS SECRETARY OF THE INDIANA FAMILY AND )

SOCIAL SERVICES ADMINISTRATION, ET AL.,

)

Defendants.

)

No. 1:13-cv-00957-JMS-MJD

ORDER

For a number of years, the Indiana Family and Social Services Administration (“FSSA”)

had a policy in place that allowed developmentally disabled individuals to receive Medicaid waiver

services through a waiver program applicable to individuals who needed nursing-facility level of

care. To remedy this problem for individuals who did not meet the nursing facility level of care

requirement, the FSSA changed its policy and began transitioning the inappropriately placed indi-

viduals to another waiver program for which they were eligible (the “Policy Change”). Plaintiffs

are developmentally disabled individuals who, as a result of the Policy Change, were transitioned

to a different waiver program. According to Plaintiffs, this transition caused a reduction in the

waiver services they receive in their homes, which in turn reduced the number of hours per week

that they could leave their homes to engage in activities in the community.

This suit challenges the Policy Change. The parties’ cross-motions for summary judgment

are currently pending before the Court, and the United States has filed a brief as an interested party

that supports Plaintiffs’ claim. Plaintiffs contend that the Policy Change violated the Americans

with Disabilities Act’s (“ADA”) and Rehabilitation Act’s so-called integration mandates, which

require “[a] public entity [to] administer services, programs, and activities in the most integrated

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setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d); see 28 C.F.R. § 41.51(d).
For the reasons explained below, the Court cannot conclude that Plaintiffs’ integrationmandate claims are ripe for review. The reason for this is simple: the integration mandate focuses on the setting in which services are administered, not the amount of services received. Plaintiffs do not contend that the setting in which they receive services has changed as a result of the Policy Change, nor could they, as Plaintiffs, both before and after the Policy Change, received Medicaid waiver services at their homes. Instead, Plaintiffs argue that the Policy Change caused a decrease in their ability to engage in activities in the community, which they maintain violates the integration mandate.
The Seventh Circuit has made clear that, absent institutionalization (or perhaps some other involuntary change to a less integrated setting), an integration-mandate claim is not ripe for adjudication. This precedent, of course, binds this Court. Because the Policy Change has not caused Plaintiffs to be either institutionalized or moved to a different setting in which they receive Medicaid waiver services, their integration-mandate claims are unripe and summary judgment in Defendants’ favor is warranted.
The Court notes that Plaintiffs claim a significant hardship caused by the Policy Change1 in Plaintiffs’ lives and the lives of their family members who care for them. Whenever government services that were previously provided no longer are, the toll it takes on those who rely on such services is often dramatic. But the Court is bound by clear Seventh Circuit precedent in this case. Although other circuits have applied standards to integration-mandate claims that are perhaps more
1 While Plaintiffs attribute the Policy Change to their current changed conditions, the evidence also shows the decisions by Plaintiffs and/or their caregivers have also contributed to their current circumstances.
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favorable to Plaintiffs, it is for the Seventh Circuit, not this Court, to revisit or clarify its position on the issue should it choose to do so. See Resier v. Residential Funding Corp., 380 F.3d 1027, 1029 (7th Cir. 2004) (stating that in our “hierarchical system, decisions of a superior court are authoritative on inferior courts”). But the appellate court’s current position is clear. Accordingly, Defendants’ Motion for Summary Judgment is GRANTED, [Filing No. 143], Plaintiffs’ Cross Motion for Summary Judgment is DENIED, [Filing No. 145], and Plaintiffs’ integration-mandate claims are dismissed without prejudice because they are unripe.2
I. STANDARD OF REVIEW A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed. R. Civ. P. 56(c)(4). Failure
2 On this date the Court issues an order in a related case, Beckem v. Indiana Family and Social Servs. Admin., Case No. 1:14-cv-668-JMS-MJD, that is substantially identical to this Order. The Court held a joint hearing on the pending cross-motions for summary judgment in these two cases during which both parties, and the United States as an Interested Party, presented argument. In both cases, the plaintiffs raise essentially the same claims against the same defendants, and the parties stipulated that the discovery in Case No. 1:13-cv-957-JMS-MJD may be treated as if it were produced in Case No. 1:14-cv-668-JMS-MJD.
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to properly support a fact in opposition to a movant’s factual assertion can result in the movant’s fact being considered undisputed, and potentially in the grant of summary judgment. Fed. R. Civ. P. 56(e).
In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L.Ed. 202 (1986).
On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable factfinder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party’s favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O’Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed. R. Civ. P. 56(c)(3), and the Seventh Circuit Court of Appeals has “repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to
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the summary judgment motion before them,” Johnson, 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).
“The existence of cross-motions for summary judgment does not, however, imply that there are no genuine issues of material fact.” R.J. Corman Derailment Servs., LLC v. Int’l Union of Operating Engineers, 335 F.3d 643, 647 (7th Cir. 2003). Specifically, “[p]arties have different burdens of proof with respect to particular facts; different legal theories will have an effect on which facts are material; and the process of taking the facts in the light most favorable to the nonmovant, first for one side and then for the other, may highlight the point that neither side has enough to prevail without a trial.” Id. at 648.
II. BACKGROUND The Court draws the factual background from the undisputed evidence submitted by the parties. The parties dispute several facts, and vigorously dispute what conclusions should be drawn from those facts. The Court sets forth the disputed facts in the light most favorable to Plaintiffs, since the Court ultimately grants summary judgment in Defendants’ favor.3 A. The Medicaid Waiver Programs and the FSSA’s Policy Change This case involves Medicaid waiver programs funded jointly by the federal government and the State of Indiana. These programs allow states such as Indiana to waive certain federal Medicaid requirements. See generally 42 U.S.C. § 1396n. A subset of these programs—home-
3 Portions of the Background section here are taken from the Background section of the Court’s order denying class certification in this case. [See Filing No. 112.] The parties rely on evidence submitted in support of class certification, and thus the Court will do so as well.
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and-community-based waiver programs—“permit[] a State to furnish an array of home and community-based services that assist Medicaid beneficiaries to live in the community and avoid institutionalization.” [Filing No. 58-5 at 8.] The FSSA submits waivers for approval to the United States Department of Health and Human Services (“DHHS”). [Filing No. 58-2 at 4.] Relevant to this litigation are three such waiver programs currently administered by the FSSA: the Aged and Disabled Waiver (“A&D Waiver”), the Community Integration and Habilitation Medicaid Waiver (“CIH Waiver”), and the Family Supports Medicaid Waiver (“FS Waiver”). [Filing No. 58-2 at 4; Filing No. 58-4 at 4.] The FSSA’s Division of Aging administers the A&D Waiver, while the FSSA’s Bureau of Developmental Disabilities Services (“BDDS”) administers the CIH Waiver and the FS Waiver. [Filing No. 58-2 at 4; Filing No. 58-4 at 4.] An individual may only be enrolled in (and thus receive services from) one waiver program at a time. [Filing No. 58-2 at 4.]
Although not the focus of this lawsuit, individuals with disabilities also receive—in addition to waiver services—what the parties here refer to as prior authorization services. [Filing No. 58-1 at 4.] These are health-related services that are provided wholly apart from the services provided through the Medicaid waiver programs, and, unlike the waiver services, cannot be used to provide services to disabled individuals that allow them to enter into the community. [Filing No. 58-1 at 4.] Plaintiffs in this case each received, and continue to receive after the Policy Change, prior authorization services.
Individuals enrolled in any of the waiver programs receive a case manager. [Filing No. 58-2 at 6; Filing No. 58-4 at 6.] To determine both the type and amounts of services an enrollee will receive through the waiver program, the case manager, the enrollee, and the enrollee’s guardian evaluate the enrollee’s particular circumstances to identify the enrollee’s specific needs. [Filing No. 58-2 at 6; Filing No. 58-4 at 6.] The enrollee then submits her plan to the appropriate
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administrating agency—either the Division of Aging or BDDS—which can either approve or deny the request for services. [Filing No. 58-2 at 6; Filing No. 58-4 at 6.] An enrollee must have her requested services approved annually by the appropriate agency. [Filing No. 58-2 at 6; Filing No. 58-4 at 6.]
A basic understanding of each waiver is necessary to understand the events underlying this suit. The A&D Waiver “provides an alternative to nursing facility admission for adults and persons of all ages with a disability,” specifically by providing services “for people who would require care in a nursing facility if waiver or other supports were not available.” [Filing No. 58-5 at 12.] Plaintiffs do not contend that they are eligible for, or should be placed on, the A&D Waiver. Instead, the parties agree that the FS Waiver and CIH Waiver—operated by BDDS—are the waiver programs pertaining to individuals with developmental disabilities, such as Plaintiffs.
Both the FS Waiver and CIH Waiver provide “waiver services to participants . . . in a range of community settings as an alternative to care in an intermediate care facility.” [Filing No. 58-7 at 8; Filing No. 58-8 at 8.] While the A&D Waiver is limited to those who require a nursingfacility level of care, the FS Waiver and the CIH Waiver serve individuals who require a different level of care: “intermediate care facility for individuals with intellectual disabilities” (“ICF/IID”). [Filing No. 58-7 at 7; Filing No. 58-8 at 7.] Like the A&D Waiver, the FS Waiver and the CIH Waiver are reimbursed at set rates, [Filing No. 58-9 at 9-10], albeit not the same rates as services under the A&D Waiver, [Filing No. 58-9 at 2-4], and an enrollee has a services budget approved at least on an annual basis, [Filing No. 58-4 at 6-7]. The FS Waiver currently caps enrollee’s budgets at $16,250 per year. [Filing No. 58-4 at 18.] The CIH Waiver, however, has a much higher budget cap, [Filing No. 30-1 at 2], given that it is a needs-based waiver and “individuals must meet emergency placement criteria to access [it].” [Filing No. 58-9 at 77.]
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The amount of services available under each of the three waivers is impacted by the statutory requirements that each waiver be cost-neutral compared to the cost of serving these enrollees through a traditional Medicaid institutional placement. See 42 U.S.C. § 1396n(c)(2)(D) (requiring that under each “waiver the average per capita expenditure estimated by the State in any fiscal year for medical assistance provided with respect to such individuals does not exceed 100 percent of the average per capita expenditure that the State reasonably estimates would have been made in that fiscal year for expenditures under the State plan for such individuals if the waiver had not been granted”). Furthermore, the FSSA can consider supports an individual receives from family members or otherwise in determining the amount of services an individual should receive. See 42 U.S.C. § 1396n(i)(1)(G)(ii)(I)(bb) (requiring states to ensure that their individualized care plans for Medicaid recipients “tak[e] into account the extent of, and need for, any family or other supports for the individual”); see also Filing No. 143-1 at 31 (stating, in the FS Waiver, that “the State determines whether or not the waiver services, in combination with other sources of coverages including . . . natural supports and other available community supports and resources, can adequately meet the needs of the individual and ensure his or her health, safety and welfare”).
From 2006 to 2011, FSSA policy permitted individuals with developmental disabilities to be placed on the A&D Waiver even if they did not meet nursing-facility level of care. [Filing No. 58-9 at 27-32 (2006 A&D Waiver Policy Statement).] This decision contravened the express terms of the A&D Waiver approved by DHHS, which limited the A&D Waiver to individuals requiring nursing-facility level of care. [Filing No. 58-5 at 11.] In October 2011, the Division of Aging instituted the Policy Change that is the subject of this litigation. [Filing No. 58-9 at 32.] The Policy Change rescinded the FSSA’s prior policy of allowing individuals with a developmental disability to enroll in the A&D Waiver even if they did not require nursing-facility level of care.
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[Filing No. 58-9 at 32.] Because some individuals on the A&D Waiver did not meet that level of care, the Division of Aging decided to transition enrollees to another waiver for which they were eligible. [Filing No. 58-2 at 12.] Specifically, the Division of Aging sought to transition those no longer eligible for the A&D Waiver to either of the two waiver programs administered by BDDS: the FS Waiver or the CIH Waiver. [Filing No. 58-2 at 12.]
Plaintiffs were each subject to the Policy Change and the requisite transition from the A&D Waiver to the FS Waiver or the CIH Waiver. There are four emergency placement criteria for placement on the CIH Waiver, and only the fourth is arguably applicable to Plaintiffs. [Filing No. 143-2 at 47.] The fourth criteria allows placement on the CIH Waiver if “[t]here are other health and safety risks, as determined by the division director, and alternate placement in a supervised group living setting is not available . . . .” [Filing No. 143-2 at 47.] Plaintiffs each applied for the CIH Waiver, but the FSSA concluded that none of them was eligible for placement on that waiver. [Filing No. 143-7 at 2-3; Filing No. 145-2 at 7.] There is no evidence that any of Plaintiffs administratively appealed that decision.
B. The Plaintiffs and the Policy Change’s Impact The Policy Change affected each Plaintiff in related but distinct ways. Plaintiffs Cody and Colton Cole are twin brothers who have cerebral palsy, which requires them to use power wheelchairs. [Filing No. 145-2 at 1.] Colton lives with his mother, Tamara Awald, and Cole lives in a house next door. [Filing No. 145-2 at 1.] Although the record evidence is unclear as to how many hours of services the Coles received while on the A&D Waiver, the Coles received “sufficient hours both to allow them to remain safe and secure [at home] . . . and to allow their providers to take them out into the community in order to help them become as independent as possible and to increase their opportunities for socialization.” [Filing No. 145-2 at 2.] Specifically, the Coles
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would use their A&D Waiver services “for a significant portions of almost every day” to go to the gym, grocery store, out to eat, shopping, and medical appointments. [Filing No. 145-2 at 2.]
Following the Policy Change, the Coles were transitioned to the FS Waiver and, under it, they together receive approximately twenty-one hours of FS Waiver services per week. [Filing No. 145-2 at 2.] However, in monetary terms they receive more waivers services now ($16,530) than they did before the Policy Change ($10,871). The Coles both continue to receive prior authorization services. [Filing No. 145-2 at 4.] They no longer go into the community during the weekdays, but on weekends are “sometimes” able to go into the community. [Filing No. 145-2 at 4.] The Coles’ mother attests that, “[i]f it were not for [her] care, assistance, and supervision, there is absolutely no doubt that they both would require institutionalization.” [Filing No. 145-2 at 7.]
Plaintiff Thomas Maertz is intellectually disabled and has cerebral palsy. [Filing No. 1453 at 1.] He lives with his sister, Francesca Kemp, who is employed by companies enrolled as service providers in the various waiver programs offered by the State of Indiana. [Filing No. 1453 at 1-2.] She was and remains Mr. Maertz’s paid caretaker when he was enrolled in the A&D Waiver and, after the Policy Change, when he was transitioned to the FS Waiver. [Filing No. 1453 at 2.] Even when not being reimbursed for services, Ms. Kemp assists Mr. Maertz “during virtually all waking hours.” [Filing No. 145-3 at 3.] When he was enrolled in the A&D Waiver, Ms. Kemp provided Mr. Maertz approximately forty hours of waiver services per week and other clients twelve hours of services per week. [Filing No. 143-8 at 6; Filing No. 145-3 at 2.] During this time, Mr. Maertz would enter the community on a daily basis to do activities such as going out to eat, visiting the flea market, going to the barber, and going window shopping. [Filing No. 145-3 at 2.]
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Following Mr. Maertz’s transition to the FS Waiver, Ms. Kemp now only provides ten to twelve hours of reimbursed services per week to Mr. Maertz. [Filing No. 143-8 at 6.] Ms. Kemp’s current employer does not allow her to take Mr. Maertz into the community during the time in which she is reimbursed for services, though there is no evidence that the FS Waiver itself prescribes such limitation. [Filing No. 145-3 at 4.] As a result of these changes, Mr. Maertz is only able to go out into the community a few days per week. [Filing No. 145-3 at 4.]
Ms. Kemp attests that if it were not for her “care and assistance, there is absolutely no doubt that [Mr. Maertz] would require institutionalization.” [Filing No. 145-3 at 4.] In Mr. Maertz’s view, he would receive adequate services if he was provided “services consistent with the level, amount, and type of those provided through the A&D Waiver.” [Filing No. 143-8 at 18.]
III. DISCUSSION The primary dispute between the parties is whether Plaintiffs have a cognizable integrationmandate claim, given that they have not been institutionalized nor involuntarily moved to a different setting as a result of the FSSA’s Policy Change. The Court will therefore begin with the general legal standards for an integration-mandate claim, before setting out the parties’ arguments regarding the integration-mandate claims Plaintiffs assert here. The integration mandate, set forth in ADA and Rehabilitation Act regulations, provides: “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); see 28
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C.F.R. § 41.51(d).4 This mandate has its statutory roots in the anti-discrimination provision of the ADA, see Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 587 (1999), which states: “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 Olmstead, the Supreme Court assessed whether 42 U.S.C. § 12132 “may require placement of persons with mental disabilities in community settings rather than in institutions,” and answered with “a qualified yes.” 527 U.S. at 587. It held that “[s]uch action is in order when [1] the State’s treatment professionals have determined that community placement is appropriate, [2] the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, [3] and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” Id.; see Radaszewski, 383 F.3d at 607 (stating that Olmstead “held that the ‘unjustified institutional isolation’ of a disabled individual receiving medical care from a State amounts to an actionable form of discrimination under Title II”) (quoting Olmstead, 527 U.S. at 597-603).
Defendants’ position in its Motion for Summary Judgment is straightforward: the Court need not assess the Olmstead factors because the Seventh Circuit’s decision in Amundson dictates that Plaintiffs must be subject to institutionalization before their integration-mandate claims are ripe, and Plaintiffs have not been institutionalized as a result of the Policy Change. [Filing No.
4 These regulations found in the ADA and Rehabilitation Act are substantively identical, so the Court will treat them as such. See Amundson ex rel. Amundson v. Wis. Dep’t of Health Servs., 721 F.3d 871, 872 (7th Cir. 2013) (treating the regulations as identical); see also Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 599, 607 (7th Cir. 2004) (noting that the “ADA’s integration regulation is modeled after [the Rehabilitation Act’s] regulation” and thus “courts construe and apply them in a consistent manner”).
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144 at 9.] Therefore, Defendants contend that Plaintiffs’ integration-mandate claims are unripe and summary judgment must be granted in their favor.
Plaintiffs do not dispute that none of them has been institutionalized, “insofar as their family-members have expended great efforts (at significant cost to their own physical, financial, and emotional well-being) to ensure that the necessary care and supervision formerly provided by the State is still provided.” [Filing No. 146 at 18.] However, Plaintiffs maintain that the integration mandate is not “only implicated upon a demonstration that a person will require actual institutionalization”; instead, Plaintiffs argue that it “is also implicated upon a showing that a person has been ‘institutionalized’ in his own home by the State’s failure to afford sufficient access to the community.” [Filing No. 146 at 19.] Plaintiffs say further that, as “made abundantly clear by the Seventh Circuit’s earlier decision in Bruggeman ex rel. Bruggeman v. Blagojevich, 324 F.3d 906 (7th Cir. 2003), Amundson is not dispositive.” [Filing No. 146 at 18-19.] Plaintiffs point the Court to various authorities that purportedly support their position, including integration-mandate precedents from other circuits and the Department of Justice’s (“DOJ”) interpretive guidance on the integration mandate. [Filing No. 146 at 19.]
The United States,5 as an Interested Party, argues that the decrease in services caused by the Policy Change places Plaintiffs at risk of institutionalization and urges this Court to follow the several other circuits that have held that a plaintiff need only allege a risk of institutionalization to state a ripe integration-mandate claim. [Filing No. 155 at 12-17.] Defendants respond that the standards adopted by the other circuits are contrary to Amundson. [Filing No. 159 at 5-7.]
5 At the hearing, the Court asked the United States questions regarding its joint approval, with the State of Indiana, of the waiver programs implemented by Defendants and the requirement that they remain cost neutral. The United States’ counsel, from the Department of Justice’s Civil Rights Division, only replied that she was not appearing on behalf of the Center for Medicare and Medicaid Services, which approves the waiver programs on behalf of the federal government.
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In the end, the Court agrees with Defendants that Amundson is dispositive and that Plaintiffs’ integration-mandate claims are unripe. To explain this conclusion, the Court will first address Amundson and the other Seventh Circuit precedents on which the parties rely. Second, the Court will explain why Plaintiffs’ novel integration-mandate theory is contrary to Amundson and the other authorities on which they rely. Third, the Court will address why it is inappropriate to apply the integration-mandate standards adopted by other circuit courts of appeals. Finally, the Court concludes with brief observations regarding Plaintiffs’ evidence of causation.
A. Seventh Circuit Precedent Dictates that Plaintiffs’ Claim is Unripe The Seventh Circuit recently addressed when an integration-mandate claim becomes ripe in Amundson. The plaintiffs in Amundson alleged that Wisconsin reduced the subsidies to its program that funds disabled persons living in group homes such that group-home providers were reimbursed at lower rates than before. 721 F.3d at 872-74. According to the plaintiffs, this violated the integration mandate because the reduction in subsidies for the group-home providers “increase[d] the risk that they will be moved from group homes to institutions.” Id. at 874. The Seventh Circuit pointed out that the plaintiffs “do not allege that any developmentally disabled person in Wisconsin has been moved, involuntarily, from group to institutional care. Plaintiffs do allege that some of their number have been required to leave group settings where they would have preferred to remain, but they do not allege inability to find another group home willing to accept the level of reimbursement that the Wisconsin[’s] . . . Program now offers.” Id. at 873-74. Confronted with these allegations, the Seventh Circuit reasoned that if the reduction in subsidies did not “land[] any developmentally disabled person in an institution,” then “Wisconsin ha[d] fulfilled its obligations under federal law, no matter how much plaintiffs prefer the comfort and amenities of the more-expensive group homes.” Id. at 874. Because none of the plaintiffs
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were moved from their group homes to institutional care, the Seventh Circuit concluded “there [was] no legal injury” and the plaintiffs’ claims were unripe; if the plaintiffs later become involuntarily institutionalized, the Seventh Circuit noted, “they can return to court.” Id. In conclusion, the Seventh Circuit stated that a reduction-in-subsidies claim is tenable if the reduction “lead[s] to undue institutionalization,” but absent this, such a claim “is not a theory of ‘discrimination’ at all[,] [but instead one] of absolute entitlement.” Id. at 875.
The undisputed facts in this case demonstrate that Plaintiffs’ claim is analogous to the unripe claim in Amundson in all material respects. The Policy Change challenged in this case resulted in decreased or different waiver services to Plaintiffs, and consequently—at least according to Plaintiffs, as discussed further below—a reduction in their ability to leave their homes to participate in activities in the community. But it is undisputed—and explicitly acknowledged by Plaintiffs—that the reduction in waiver services caused by the Policy Change has not resulted in Plaintiffs’ institutionalization.6 [Filing No. 146 at 18; see Filing No. 145-2 at 7; Filing No. 145-3 at 4.] Simply put, the Policy Change did not alter the setting in which Plaintiffs receive their waiver services, let alone lead to their institutionalization: both before and after the Policy Change, Plaintiffs received their waiver services at their homes.
6 At the hearing, the Court asked the parties what in their view constitutes “institutionalization,” and both parties agreed that institutionalization requires a change in setting. Thus, even by Plaintiffs’ own definition of the term, they were not institutionalized as a result of the Policy Change.
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Given these facts, the similarity between this case and Amundson is striking. In both cases
a state effectively reduced services to the developmentally disabled,7 but the reduction did not
change the setting in which those individuals received services, let alone cause any of them to be
institutionalized. Developmentally disabled individuals in Wisconsin could still receive services
in group homes (even if only in less expensive ones), and Plaintiffs here still receive waiver ser-
vices in their homes (even if fewer than before the Policy Change). As the Seventh Circuit made
clear, if the challenged policy fails to “land[] any developmentally disabled person in an institu-
tion,” then the state entity “has fulfilled its obligations under federal law.” Amundson, 721 F.3d
at 874. Such is the case here, and thus Amundson’s conclusion is equally applicable: Plaintiffs’
integration-mandate claims are “unripe. . . . If plaintiffs’ fears [regarding institutionalization]
come to pass, they can return to court. If the fears do not come to pass, however, there is no legal
injury, and an opinion today would be advisory.” Id.
Plaintiffs rely on several authorities to resist this conclusion. However, only two of the
many authorities they cite are from the Seventh Circuit. First, Plaintiffs contend that “more appo-
site to the present case than Amundson is the Seventh Circuit’s decision in Bruggeman.” [Filing
7 As Plaintiffs rightly point out, in Amundson, unlike in this case, reimbursement rates to providers were reduced, rather than the actual budget for services available to a developmentally disabled individual, as has happened here. But Plaintiffs draw too much from their suggestion that the plaintiffs in Amundson “alleged no reduction in their services whatsoever.” [Filing No. 146 at 20.] While this may be technically true, the Seventh Circuit explicitly noted that the practical result of Wisconsin’s reduction in reimbursement rates caused the developmentally disabled the “largest cuts,” and more specifically, that some of the plaintiffs were “required to leave group settings where they would have preferred to remain,” even if they found another group home setting that would accept a lower reimbursement rates. Amundson, 721 F.3d at 872-74. Thus in both cases, the plaintiffs challenge a state policy that ultimately caused a reduction in services—whether in the form of a decrease in the individual’s services budget (as here) or in the reimbursement rates to providers of services (as in Amundson), is a distinction without a difference. At bottom, both sets of plaintiffs faced a reduction in services from the state, and this reduction did not lead to the institutionalization of either set of plaintiffs.
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No. 146 at 20.] In Bruggeman, the Seventh Circuit noted that the integration mandate entitles disabled persons “to care in the least restrictive possible environment,” and reasoned that it is not paradoxical that a residential institution, in certain circumstances, could be more integrated than living at home. 324 F.3d at 911-12. Given this, the Seventh Circuit acknowledged the plaintiff’s claim—that “by failing to offer an alternative to the home the defendants [were] violating [the integration mandate]”—may be viable, but because the district court did not address that claim on the merits, remand was required. Id. at 912. According to Plaintiffs, Bruggeman stands for the proposition that the integration mandate “is triggered when a person is denied the ability to benefit from the most integrated setting possible, regardless of the physical structure of that setting.” [Filing No. 146 at 21.]
Although Bruggeman arguably supports this proposition, it does not support Plaintiffs’ integration-mandate claim in this case. The Seventh Circuit in Bruggeman, as in Amundson, focused on the setting in which services were provided. The Bruggeman plaintiffs may have had a viable integration-mandate claim because, for them, a residential institution may have been a more integrated setting than their homes, and they alleged that the state was giving them only one option as to the setting of their services—their home. See Bruggeman, 324 F.3d 911-12. But here, the setting in which Plaintiffs receive their waiver services (their homes) has not changed as a result of the Policy Change, nor do Plaintiffs seek to receive services in another setting. It was this same lack of a change in setting that drove the result in Amundson: the plaintiffs’ claim was unripe because the challenged policy allowed the plaintiffs to continue receiving their services in group homes and did not force them into institutions. See Amundson, 721 F.3d at 872-74. But unlike in this case and Amundson, the Bruggeman plaintiffs stated a potential integration-mandate claim because they explicitly alleged that the state was not providing services in an alternative setting.
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Thus, Bruggeman fails to support Plaintiffs’ position in this case, and it is not more apposite than Amundson.
The only other integration-mandate case from the Seventh Circuit addressed by the parties—Radaszewski—proceeds pursuant to the same framework as Bruggeman. In Radaszewski, the Seventh Circuit held that judgment on the pleadings was inappropriate because the plaintiff could potentially show “that the services he seeks to receive at home are, in substance, already provided in the institutional setting,” and his home was the most integrated setting appropriate for him. 383 F.3d at 600, 611. In other words, an integration-mandate claim was viable in Radaszewski for almost the same reason it was in Bruggeman: the defendant was providing services in one setting (institutions), but not in the most integrated setting for the plaintiff (his home).
As explained above, both this case and Amundson do not fit within the framework for a viable claim set out in Bruggeman and Radaszewski. The policies challenged in this case and Amundson did not change the setting in which the plaintiffs receive services, nor did the plaintiffs seek services in a different setting, while in Bruggeman and Radaszewski there was a viable integration-mandate claim because there were services offered in one setting that were not offered in the most integrated setting for the plaintiffs. Therefore, Plaintiffs’ reliance on Bruggeman and Radaszewski does not support their position. When read with Amundson, these cases establish that an integration-mandate claim is viable only when the challenged policy necessitates a change in setting or provides services in one setting that are not offered in a more integrated one. The Policy Change challenged here does neither, and thus Plaintiffs integration-mandate claim is unripe. See Amundson, 721 F.3d at 874.
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B. Plaintiffs’ Novel Integration-Mandate Claim is Contrary to Seventh Circuit Precedent and the Other Authorities on Which They Rely.
Plaintiffs maintain that integration-mandate claims are not limited to situations in which individuals are institutionalized or at risk of institutionalization. The protection offered by the integration mandate, Plaintiffs argue, is much broader in that it “prohibits policies that isolate individuals in their homes.” [Filing No. 146 at 21-22.] Therefore, although Amundson and most integration-mandate cases generally focus on institutionalization, Plaintiffs argue that it does not follow that these claims are so limited. [Filing No. 146 at 22-23; Filing No. 152 at 13-17.]
Plaintiffs point to the language of the integration-mandate regulation itself and the DOJ’s interpretation of their regulations to support their position. Specifically, the integration mandate requires services to be administered “in the most integrated setting appropriate to the needs” of disabled individuals. 28 C.F.R. § 35.130(d); see 28 C.F.R. § 41.51(d). The “most integrated setting” is “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. Pt. 35, App. B. The DOJ issued a “Statement on Enforcement of the Integration Mandate and Olmstead” in 2011, in which it explained that integrated settings “are located in mainstream society; offer access to community activities and opportunities at times, frequencies and with persons of an individual’s choosing; afford individuals choice in their daily life activities; and, provide individuals with disabilities the opportunity to interact with non-disabled persons to the fullest extent possible.” [Filing No. 145-7 at 2.]
These authorities, however, do not vindicate Plaintiffs’ broad reading of the integration mandate. Like the Seventh Circuit authorities discussed above, the regulations and the DOJ’s interpretation thereof focus on the setting in which services are provided. Again, Plaintiffs do not challenge the setting in which Defendants provide waivers services; prior to the Policy Change Plaintiffs received services in their homes and they continue to do so. Plaintiffs instead seek more
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waiver services in the same setting. Their Statement of Claims submitted to the Court before the instant summary judgment motions were filed makes this clear: Plaintiffs “intend to prove at trial” that “[t]he level of services offered, provided, and/or available to the plaintiffs-intervenors as a result of their termination from the [A&D Waiver] violates the integration mandate.” [Filing No. 141 at 1.] The regulations and the DOJ’s interpretive guidance do not discuss the level of services provided, and thus Plaintiffs’ reliance on them is misplaced.
When pressed on the issue at the hearing, Plaintiffs again recognized that the integration mandate is about the setting in which services are provided, not the amount of services provided; but Plaintiffs argued that at some point the distinction between the two types of claims collapses when a person receives so few services at their home that they rarely if ever can leave their home for activities in the community. It may very well be true that services can be so dramatically cut that what was once the most integrated setting for an individual no longer is, and the individual may be entitled to services in another setting. But this is not the case here. Plaintiffs occasionally leave their homes for activities in the community, [Filing No. 145-2 at 4; Filing No. 145-3 at 4], and they seek more waiver services via this lawsuit so that they can do so more often. Such a claim, at its core, is simply a claim for more services and has nothing to do with the setting in which services are provided. A “more services” claim has never been recognized by the Supreme
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Court or Seventh Circuit; indeed, both courts have disavowed such claims, reasoning that the in-
tegration mandate is only implicated by a difference or change in setting, not in services.8 See
Olmstead, 527 U.S. at 603 n.14 (“We do not in this opinion hold that the ADA imposes on the
States a standard of care for whatever medical services they render, or that the ADA requires States
to provide a certain level of benefits to individuals with disabilities.”); Amundson, 721 F.3d at 875
(“[Plaintiffs’] sole argument is that Wisconsin reduced their own subsidies. Apart from the possi-
bility (which is unripe) that the reduction may lead to undue institutionalization, this is not a theory
of ‘discrimination’ at all. It is a claim of absolute entitlement.”).
Furthermore, an examination of what level of services is appropriate is contrary to the Sev-
enth Circuit’s caution in Bruggeman that “[t]he purpose of the [the integration mandate] is not to
constitute the federal courts the supervisors of the care and treatment of disabled persons.” 324
F.3d at 913. Yet Plaintiffs’ “more services” claim essentially asks the Court to do precisely that;
if the Court accepted Plaintiffs’ novel integration-mandate theory, it would have to assess the ser-
vices provided to each Plaintiff under the FS Waiver and make a judgment as to whether the ser-
vices available allow them to be sufficiently integrated into the community. Yet Plaintiffs have
8 For these same reasons, Plaintiffs’ reliance on Lane v. Kitzhaber, 841 F.Supp.2d 1199 (D. Or. 2012), and, K.M. v. Hyde Park Cent. Sch. Dist., 381 F.Supp.2d 343 (S.D.N.Y. 2005), is unpersuasive. Plaintiffs maintain that these cases establish that the integration mandate “extends beyond actual institutionalization.” [Filing No. 146 at 23.] This is true, but only in the limited sense that, as recognized in Bruggeman, the most integrated setting for a particular person may be in a residential institution rather than at home. See Bruggeman, 324 F.3d at 911-12. Critical to an integration-mandate claim is that there are two possible settings, one of which is more integrated than the other, and the challenged state policy or action has rendered the more integrated setting unavailable to the plaintiff. The district court cases on which Plaintiffs rely support this proposition, but no more, at least as it relates to Plaintiffs’ claims here. See, e.g., Lane, 841 F.Supp.2d at 120508 (holding that the plaintiffs stated a viable integration-mandate claim by alleging that the defendants provided employment services only in sheltered workshops instead of providing services to allow for supported, integrated employment programs, and dismissing other claims based on “inadequate services”).
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not proposed to the Court—let alone provided any authority on the point—a baseline against which the Court would measure whether a certain level of community access is sufficient. This is perhaps because, as explained above, integration-mandate cases consistently contrast two different settings in which disabled individuals seek services, not, as Plaintiffs urge here, an assessment of whether the level of services in a single setting permits an individual to participate in the community enough (whatever enough may be).
In sum, because Plaintiffs’ claim is about the amount of services they receive, rather than the setting in which they receive them, the authorities on which they rely do not support their novel integration-mandate claim.
C. Other Circuits’ Integration-Mandate Standards Are Contrary to Amundson The United States (as an Interested Party), and Plaintiffs to a lesser extent, argues that the decrease in services caused by the Policy Change places Plaintiffs at risk of institutionalization and urges this Court to follow the several other circuits that have held that a plaintiff need only allege a risk of institutionalization to state a ripe integration-mandate claim. [Filing No. 155 at 1217.] Defendants respond that the standards adopted by the other circuits are contrary to Amundson. [Filing No. 159 at 5-7.] Three circuits have held that plaintiffs can proceed with an integration-mandate claim if the state policy or conduct they challenge has made them “at risk of institutionalization.” Pashby v. Delia, 709 F.3d 307, 322 (4th Cir. 2013); see M.R. v. Dreyfus, 663 F.3d 1100, 1102 (9th Cir. 2011); Fisher v. Okla. Health Care Authority, 335 F.3d 1175, 1181-82 (10th Cir. 2003). The Court, however, cannot adopt this standard because the Seventh Circuit was clear in Amundson that actual institutionalization was necessary before an integration-mandate claim is ripe. See
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Amundson, 721 F.3d at 874 (holding that the plaintiff’s integration-mandate claim was unripe because the challenged reduction in subsidies did not “land[] any developmentally disabled person in an institution”). The Seventh Circuit explicitly noted that the plaintiffs in Amundson feared institutionalization, “but their fears may be unwarranted.” Id. “If the fears do not come to pass,” the Seventh Circuit continued, “there is no legal injury.” Id. Thus, contrary to the United States’ position otherwise, the Seventh Circuit focused on whether any of the plaintiffs were actually institutionalized, not their risk of institutionalization.
Further reinforcing this reading of Amundson is the fact that the plaintiffs in that case explicitly argued to the Seventh Circuit that it should adopt the “risk of institutionalization” standard, and they cited the very circuit cases and DOJ interpretive guidance relied on by Plaintiffs and the United States here. See Amundson v. Wis. Dept. of Health Servs., No. 13-1351, Dkt. 14-1 at 3038; Dkt. 31 at 5-6. The plaintiffs in Amundson set forth “several examples” to the Seventh Circuit of how the challenged Wisconsin policy caused them to be at risk of institutionalization. Id. Nevertheless, the Seventh Circuit did not analyze any of the plaintiffs’ individual situations to determine whether they were at risk of institutionalization. See Amundson, 721 F.3d at 873-84. This is because the Seventh Circuit’s analysis was categorical: absent actual institutionalization, the plaintiffs’ integration-mandate claims were unripe. See id. The Seventh Circuit noted that if the perceived risk of institutionalization came to fruition, the plaintiffs could “return to court” at that time. Id. Therefore, following Amundson, it would be improper for this Court to adopt a “risk of institutionalization” standard.
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D. Even If Plaintiffs’ Novel Integration-Mandate Claim Was Viable (Which It Is Not), Plaintiffs Have Not Established that the Policy Change Caused Their Decreased Community Activities.
The foregoing analysis assumes that the Policy Change caused Plaintiffs to enter into the community less frequently than they were able to before the Policy Change because Plaintiffs’ claims are unripe even if this is true. The Court wishes to briefly highlight, however, that the evidence does not necessarily bear this out. Although there is evidence that Plaintiffs each enter into the community less frequently than before the Policy Change, [Filing No. 145-2 at 4; Filing No. 145-3 at 4], whether this decrease was caused by the Policy Change is less clear. The lack of clarity is in large part because Plaintiffs failed to delve into the precise changes in services the Policy Change caused them. This left the Court to question counsel at the hearing regarding these changes. Even after the hearing, however, the Court is left only with a limited evidentiary picture of how each Plaintiff was affected by the Policy Change in terms of how it directly impacted their ability to leave their homes for community activities. The following examples explain why the Court has reservations regarding whether the Policy Change caused Plaintiffs’ decrease in community activities.
Plaintiffs’ briefing discussed the effects of the Policy Change strictly in terms of hours of waiver services received before and after the Policy Change. But comparing only the hours of services received obscures the details of why Plaintiffs received the services they did before the Policy Change and why they choose to receive the services they do now. For example, the parties at the hearing did not dispute that the Coles receive more waivers services now ($16,530) than they did before the Policy Change ($10,871) in strictly monetary terms. It is further undisputed that individuals receiving waiver services may choose what services they wish to utilize, which are reimbursed at different rates depending on the service. Given this, it is difficult for the Court
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to conclude that the decrease in the Coles’ participation in activities outside the home is caused by the Policy Change when the Coles chose not to use their increased waiver services budget to participate in the community—e.g., for community habilitation services offered through the waivers that are designed to permit interactions with others.
Unlike the Coles, Mr. Maertz receives fewer waiver services now (~$16,000) than he did before the Policy Change (~$25,000). However, the fact that he rarely is able to leave his home to go into the community is due, at least in part, to the fact that the employer through whom Ms. Kemp provides waiver services to Mr. Maertz does not allow her to take Mr. Maertz into the community during the time in which she is reimbursed for services. [Filing No. 145-3 at 4.] Thus it appears—at least in part—that it is not the decrease in waiver services caused by the Policy Change that prevents Mr. Maertz from entering into the community more frequently, but the fact that Ms. Kemp is his sole provider of waiver services and her employer does not allow her to be reimbursed for services outside of the home. Simply put, if Mr. Maertz is choosing to utilize a provider for waiver services that precludes those services from being used outside the home, the Court would be hard pressed to conclude that Mr. Maertz’s decrease in community integration is caused by the Policy Change.
In the end, the Court need not definitively decide whether sufficient causation is present because, as explained above, Plaintiffs’ integration-mandate claims are unripe under Amundson. But even were this not the case, the foregoing evidentiary difficulties would create a significant stumbling block for Plaintiffs’ claims.
IV. CONCLUSION Integration-mandate claims focus on the setting in which services to disabled persons are provided. Plaintiffs challenge Defendants’ Policy Change via the integration mandate, but the
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Policy Change has not altered the setting in which Plaintiffs receive Medicaid waiver services, let alone forced Plaintiffs into institutions. The Seventh Circuit has made clear that the integration mandate is not implicated by a reduction in services to the disabled unless the individuals are institutionalized as a result of the reduction. At the very least, the integration mandate requires the challenged reduction to impact the setting in which services are provided. Plaintiffs here have not been institutionalized or had the setting in which they receive Medicaid waiver services impacted as a result of the Policy Change. Until that occurs, Plaintiffs’ integration-mandate claims are unripe.
The Court recognizes that Plaintiffs offer a novel theory of why the integration mandate is implicated: the reduction in waiver services has decreased, although not foreclosed, Plaintiffs’ ability to leave their homes to engage in activities in the community. In this sense, Plaintiffs are less integrated into the community. Such an argument, however, alters the focus of Plaintiffs’ claims away from the setting in which they receive services to the amount of services they receive. But the Supreme Court has made clear that the integration mandate does not require states to “provide a certain level of benefits to individuals with disabilities,” Olmstead, 527 U.S. at 603 n.14, and the Seventh Circuit has rejected such a claim, describing it as one for “absolute entitlement,” Amundson, 721 F.3d at 875.
The foregoing is not mean to minimize the hardship Defendants’ Policy Change has allegedly caused Plaintiffs and their family caregivers, who provide both compensated and uncompensated care for their disabled family members. But relevant precedent is clear. And it is for the Seventh Circuit, not this Court, to expand the reach of the integration mandate beyond the boundaries the Seventh Circuit has set.
- 26 -

For these reasons, Defendants’ Motion for Summary Judgment is GRANTED, [Filing No. 143], and Plaintiffs’ Cross Motion for Summary Judgment is DENIED, [Filing No. 145]. Plaintiffs’ integration-mandate claim is unripe and is therefore dismissed without prejudice. Final Judgment shall issue accordingly.

DATE: June 9, 2015

_______________________________
Hon. Jane Magnus-Stinson, Judge United States District Court Southern District of Indiana

Distribution via ECF only to all counsel of record

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UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse Room 2722 - 219 S. Dearborn Street Chicago, Illinois 60604

Office of the Clerk Phone: (312) 435-5850 www.ca7.uscourts.gov

June 1, 2016

NOTICE OF ISSUANCE OF MANDATE

Laura A. Briggs To:
UNITED STATES DISTRICT COURT Southern District of Indiana United States Courthouse Indianapolis , IN 46204-0000

No. 15-2377

KARLA STEIMEL, on her own behalf and on behalf of three (3) classes of those similarly situated, Plaintiff - Appellant
and
THOMAS MAERTZ, et al., Intervening Plaintiffs - Appellants
v.
JOHN J. WERNERT, in his official capacity as Secretary of the Indiana Family and Social Services Administration, et al., Defendants - Appellees

MICHAEL BECKEM, et al., Plaintiffs - Appellants

No. 15-2389

v.

INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION,et al., Defendants - Appellees
Originating Case Information:

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District Court No: 1:13-cv-00957-JMS-MJD Southern District of Indiana, Indianapolis Division District Judge Jane E. Magnus-Stinson
Originating Case Information:
District Court No: 1:14-cv-00668-JMS-MJD Southern District of Indiana, Indianapolis Division
Herewith is the mandate of this court in this appeal, along with the Bill of Costs, if any. A certified copy of the opinion/order of the court and judgment, if any, and any direction as to costs shall constitute the mandate.

RECORD ON APPEAL STATUS:

No record to be returned

NOTE TO COUNSEL: If any physical and large documentary exhibits have been filed in the above-entitled cause, they are to be withdrawn ten (10) days from the date of this notice. Exhibits not withdrawn during this period will be disposed of.
Please acknowledge receipt of these documents on the enclosed copy of this notice.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Received above mandate and record, if any, from the Clerk, U.S. Court of Appeals for the Seventh Circuit.

Date:

Received by:

_____6_/_1_/2_0__1_6_____________

_________________________________________________________________ Deputy Clerk, U.S. District Court

form name: c7_Mandate(form ID: 135)

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UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse Room 2722 - 219 S. Dearborn Street Chicago, Illinois 60604

Office of the Clerk Phone: (312) 435-5850 www.ca7.uscourts.gov

May 10, 2016

FINAL JUDGMENT

Before:

DIANE P. WOOD, Chief Judge MICHAEL S. KANNE, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge

KARLA STEIMEL, Plaintiff - Appellant and

No. 15-2377

THOMAS MAERTZ, et al., Intervening Plaintiffs - Appellants v.

JOHN J. WERNERT, Secretary of the Indiana Family and Social Services Administration, et al., Defendants - Appellees

MICHAEL BECKEM and LOIS BECKEM, Plaintiffs - Appellants v.

No. 15-2389

INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION and JOHN J. WERNERT, Secretary of the Indiana Family and Social Services Administration, Defendants - Appellees

Originating Case Information:

District Court Nos: 13-cv-00957, 14-cv-00668 Southern District of Indiana, Indianapolis Division District Judge Jane E. Magnus-Stinson

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Page 2

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We REVERSE the judgment of the district court and REMAND for further proceedings consistent with the opinion. We AFFIRM the district court’s decision not to certify the proposed class. Costs will be taxed against the state. The above is in accordance with the decision of this court entered on this date.

form name: c7_FinalJudgment(form ID: 132)

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In the
United States Court of Appeals

For the Seventh Circuit
____________________ȱ
No.ȱ15Ȭ2377ȱȱ

KARLAȱSTEIMEL,ȱ THOMASȱMAERTZ,ȱetȱal.,ȱ

PlaintiffȬAppellant,ȱ andȱ
InterveningȱPlaintiffsȬAppellants,ȱ

v.ȱ

JOHNȱJ.ȱWERNERT,ȱSecretaryȱofȱtheȱIndianaȱFamilyȱandȱSocialȱ ServicesȱAdministration,ȱetȱal.,ȱ
DefendantsȬAppellees.ȱ

ȱ No.ȱ15Ȭ2389ȱ

____________________ȱ

MICHAELȱBECKEMȱANDȱLOISȱBECKEM,ȱȱ PlaintiffsȬAppellants,ȱ
v.ȱ ȱ INDIANAȱ FAMILYȱ ANDȱ SOCIALȱ SERVICESȱ ADMINISTRATION,ȱ andȱ JOHNȱJ.ȱWERNERT,ȱSecretaryȱofȱtheȱIndianaȱFamilyȱandȱSocialȱ ServicesȱAdministration,ȱ
DefendantsȬAppellees.ȱ

ȱ

____________________ȱ

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Nos.ȱ15Ȭ2377ȱ&ȱ15Ȭ2389ȱ

AppealsȱfromȱtheȱUnitedȱStatesȱDistrictȱCourtȱforȱtheȱ SouthernȱDistrictȱofȱIndiana,ȱIndianapolisȱDivision.ȱ Nos.ȱ13ȬcvȬ00957,ȱ14ȬcvȬ00668ȱ—ȱJaneȱE.ȱMagnusȬStinson,ȱJudge.ȱ
____________________ȱ
ARGUEDȱJANUARYȱ5,ȱ2016ȱ—ȱDECIDEDȱMAYȱ10,ȱ2016ȱ ____________________ȱ

BeforeȱWOOD,ȱChiefȱJudge,ȱandȱKANNEȱandȱROVNER,ȱCircuitȱ Judges.ȱ
WOOD,ȱ Chiefȱ Judge.ȱ Noȱ oneȱ wouldȱ accuseȱ theȱ Medicaidȱ programȱ ofȱ simplicity.ȱ Ourȱ taskȱ inȱ thisȱ appealȱ isȱ toȱ considerȱ whetherȱIndianaȱhasȱchosenȱanȱacceptableȱwayȱtoȱdeliverȱcerȬ tainȱhomeȬȱandȱcommunityȬbasedȱservices.ȱItȱdoesȱsoȱthroughȱ soȬcalledȱ waiverȱ programsȱ thatȱ areȱ operatedȱ byȱ stateȱ MediȬ caidȱagencies.ȱTheȱwordȱ“waiver”ȱisȱusedȱbecauseȱtheȱdefaultȱ assumptionȱunderȱMedicaidȱisȱthatȱtheseȱkindsȱofȱservicesȱwillȱ beȱ deliveredȱ inȱ institutions.ȱ Congressȱ hasȱ recognized,ȱ howȬ ever,ȱthatȱmanyȱpeopleȱareȱbetterȱservedȱbyȱandȱpreferȱcomȬ munityȬbasedȱcare.ȱForȱtheseȱpeople,ȱitȱusesȱwaiverȱprogramsȱ underȱwhichȱtheȱstateȱ(andȱtheȱfederalȱgovernment)ȱwillȱpickȱ upȱtheȱtab.ȱ
Theȱ Indianaȱ Familyȱ andȱ Socialȱ Servicesȱ Administrationȱ (theȱAgency)ȱrunsȱthreeȱwaiverȱprogramsȱrelevantȱtoȱthisȱcase:ȱ theȱ Agedȱ andȱ Disabledȱ Medicaidȱ Waiverȱ Programȱ (A&Dȱ waiver),ȱ theȱ Communityȱ Integrationȱ andȱ Habilitationȱ MediȬ caidȱWaiverȱProgramȱ(CIHȱwaiver),ȱandȱtheȱFamilyȱSupportsȱ Medicaidȱ Waiverȱ Programȱ (FSȱ waiver).ȱ Importantlyȱ forȱ ourȱ case,ȱtheȱprogramsȱvaryȱinȱhowȱmuchȱmoneyȱeachȱclientȱcanȱ receive,ȱ whatȱ mustȱ beȱ demonstratedȱ toȱ qualifyȱ forȱ aid,ȱ andȱ whoȱisȱentitledȱtoȱassistance.ȱBecauseȱIndianaȱhasȱclosedȱmostȱ ofȱitsȱinstitutionalȱfacilities,ȱtheseȱwaiverȱprogramsȱserveȱtheȱ

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vastȱmajorityȱofȱpeopleȱwithȱdisabilitiesȱinȱIndiana.ȱTheȱstate’sȱ totalȱinstitutionalȱcapacityȱcanȱaccommodateȱonlyȱoneȱquarterȱ ofȱtheȱnumberȱofȱpeopleȱonȱtheȱCIHȱwaiverȱalone.ȱ
Untilȱ2011,ȱtheȱAgencyȱplacedȱmanyȱpeopleȱwithȱdevelopȬ mentalȱdisabilitiesȱonȱtheȱA&Dȱwaiver,ȱwhichȱhasȱnoȱcapȱonȱ services.ȱThatȱchangedȱwhenȱtheȱAgencyȱdecidedȱthatȱitȱhadȱ notȱbeenȱadheringȱtoȱcertainȱA&Dȱrules.ȱInȱorderȱtoȱfixȱitsȱmisȬ takes,ȱitȱenactedȱaȱpolicyȱchangeȱthatȱrenderedȱmanyȱdevelopȬ mentallyȱdisabledȱpersons,ȱincludingȱtheȱplaintiffs,ȱineligibleȱ forȱcareȱunderȱtheȱA&Dȱwaiver.ȱTheseȱpeopleȱwereȱmovedȱtoȱ theȱFSȱwaiver,ȱunderȱwhichȱtheyȱmayȱreceiveȱservicesȱworthȱ noȱ moreȱ thanȱ $16,545ȱ annually.ȱ Developmentallyȱ disabledȱ peopleȱ whoȱ wereȱ switchedȱ fromȱ theȱ A&Dȱ waiverȱ toȱ theȱ FSȱ waiverȱmayȱapplyȱforȱtheȱCIHȱwaiver,ȱwhichȱisȱuncapped.ȱButȱ notȱeveryoneȱqualifiesȱforȱtheȱCIHȱwaiver,ȱandȱsoȱthisȱpossiȬ bilityȱisȱanȱemptyȱoneȱforȱmany.ȱ
Theȱ plaintiffsȱ inȱ theȱ twoȱ casesȱ weȱ haveȱ consolidatedȱ forȱ dispositionȱ areȱ developmentallyȱ disabledȱ personsȱ whoȱ wereȱ movedȱ fromȱ theȱ A&Dȱ waiverȱ toȱ theȱ FSȱ waiver.ȱ Theyȱ argueȱ thatȱtheirȱnewȱassignmentȱviolatesȱtheȱintegrationȱmandateȱofȱ theȱAmericansȱwithȱDisabilitiesȱActȱ(ADA),ȱ42ȱU.S.C.ȱ§§ȱ12101ȱ etȱseq.,ȱbecauseȱitȱdeprivesȱthemȱofȱcommunityȱinteractionȱandȱ putsȱthemȱatȱriskȱofȱinstitutionalization.ȱTheyȱalsoȱseekȱclassȱ certification.ȱ
Theȱ districtȱ courtȱ grantedȱ summaryȱ judgmentȱ toȱ theȱ deȬ fendantsȱonȱtheȱintegrationȬmandateȱclaimsȱandȱdeniedȱclassȱ certification.ȱ Weȱ concludeȱ thatȱ thereȱ isȱ aȱ genuineȱ disputeȱ ofȱ materialȱfactȱwithȱrespectȱtoȱtheȱ individualȱclaimsȱbasedȱonȱ theȱintegrationȱmandate,ȱandȱsoȱjudgmentȱforȱtheȱdefendantsȱ toȱthatȱextentȱwasȱpremature.ȱTheȱdistrictȱcourtȱdidȱnotȱabuseȱ

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Nos.ȱ15Ȭ2377ȱ&ȱ15Ȭ2389ȱ

itsȱ discretion,ȱ however,ȱ inȱ decliningȱ toȱ certifyȱ theȱ class,ȱ beȬ causeȱtheȱproposedȱclassȱisȱtooȱvague.ȱ
Iȱ
Aȱ
Inȱ1981,ȱCongressȱenactedȱSectionȱ1915(c)ȱofȱtheȱSocialȱSeȬ curityȱ Actȱ (SSA),ȱ 42ȱ U.S.C.ȱ §ȱ 1396n,ȱ whichȱ establishedȱ theȱ HomeȱandȱCommunityȬBasedȱCareȱWaiverȱProgram.ȱSeeȱAnȬ drewȱ I.ȱ Batavia,ȱ Aȱ Rightȱ toȱ Personalȱ Assistanceȱ Services:ȱ “Mostȱ IntegratedȱSettingȱAppropriateȈȱRequirementsȱandȱtheȱIndependentȱ Livingȱ Modelȱ ofȱ LongȬTermȱ Care,ȱ 27ȱ AM.ȱ J.L.ȱ &ȱ MED.ȱ 17,ȱ 24ȱ (2001).ȱTheȱprogramȱallowedȱstatesȱtoȱdivergeȱfromȱtheȱtradiȬ tionalȱ Medicaidȱ structureȱ byȱ providingȱ communityȬbasedȱ servicesȱtoȱpeopleȱwhoȱwould,ȱunderȱtheȱtraditionalȱMedicaidȱ structure,ȱ requireȱ institutionalization.ȱ Itsȱ purposeȱ wasȱ toȱ “provid[e]ȱrealȱchoicesȱandȱopportunitiesȱtoȱcontrolȱtheirȱlivesȱ forȱindividualsȱwhoȱwishȱtoȱliveȱinȱtheȱcommunity”ȱandȱallowȱ deviationȱfromȱMedicaid’sȱtraditionalȱ“institutionalȱbias.”ȱId.ȱ
Participatingȱstatesȱhaveȱsignificantȱdiscretionȱinȱhowȱtheyȱ craftȱtheirȱwaiverȱprograms.ȱNonetheless,ȱtheȱprogramsȱmustȱ conformȱ toȱ severalȱ restrictions:ȱ theȱ averageȱ annualȱ costȱ ofȱ aȱ state’sȱ waiverȱ programsȱ cannotȱ exceedȱ thatȱ ofȱ institutionalȱ services,ȱ id.;ȱ statesȱ mustȱ informȱ eligibleȱ personsȱ ofȱ theirȱ opȬ tionsȱandȱallowȱ thoseȱqualifiedȱ toȱtakeȱadvantageȱofȱwaiverȱ slotsȱupȱtoȱtheȱnumberȱavailable,ȱid.;ȱandȱstatesȱmustȱcomplyȱ withȱ theȱ ADA’sȱ integrationȱ mandate,ȱ whichȱ dictatesȱ thatȱ statesȱ “shallȱ administerȱ services,ȱ programs,ȱ andȱ activitiesȱ inȱ theȱmostȱintegratedȱsettingȱappropriateȱtoȱtheȱneedsȱofȱqualiȬ fiedȱindividualsȱwithȱdisabilities,”ȱ28ȱC.F.R.ȱ§ȱ35.130(d)ȱ(1998).ȱ
ȱ
ȱ

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5ȱ

Bȱ
Statesȱ submitȱ detailedȱ applicationsȱ forȱ eachȱ waiverȱ proȬ gramȱ toȱ theȱ Centersȱ forȱ Medicareȱ andȱ Medicaidȱ Servicesȱ (CMS).ȱCMSȱapprovesȱwaiverȱprogramsȱforȱanȱinitialȱtermȱofȱ threeȱyears,ȱafterȱwhichȱitȱmayȱreȬapproveȱthemȱforȱfiveȬyearȱ periods.ȱTheȱA&Dȱwaiver,ȱtheȱFSȱwaiver,ȱandȱtheȱCIHȱwaiverȱ allȱ fallȱ underȱ SSAȱ §ȱ 1915(c),ȱ 42ȱ U.S.C.ȱ §ȱ 1396n(c),ȱ andȱ haveȱ beenȱapprovedȱbyȱCMS.ȱ(Thatȱapprovalȱisȱnotȱatȱissueȱhere.)ȱ Theȱ Agencyȱ overseesȱ allȱ ofȱ Indiana’sȱ waiverȱ programs,ȱ throughȱdifferentȱsubdivisionsȱforȱeachȱone.ȱ
UnderȱIndianaȱlaw,ȱtheȱA&Dȱwaiverȱisȱmeantȱ“toȱprovideȱ homeȬȱandȱcommunityȬbasedȱservicesȱtoȱindividualsȱwho,ȱbutȱ forȱtheȱprovisionȱofȱsuchȱservices,ȱwouldȱrequireȱnursingȱfaȬ cilityȱlevelȱofȱcare.”ȱTheȱFSȱwaiverȱprovidesȱ“waiverȱservicesȱ toȱ participantsȱ ofȱ anyȱ ageȱ residingȱ inȱ aȱ rangeȱ ofȱ communityȱ settingsȱasȱanȱalternativeȱtoȱcareȱinȱanȱintermediateȱcareȱfacilȬ ityȱ forȱ individualsȱ withȱ intellectualȱ disabilitiesȱ …ȱ orȱ relatedȱ conditions.”ȱ Theȱ CIHȱ waiverȱ providesȱ servicesȱ toȱ aȱ similarȱ populationȱthatȱmeetsȱadditionalȱcriteria.ȱWhileȱtheȱFSȱwaiverȱ capsȱ servicesȱ atȱ $16,545ȱ perȱ year,ȱ thereȱ isȱ noȱ capȱ onȱ servicesȱ underȱtheȱA&DȱorȱCIHȱwaivers.ȱDifferentȱservicesȱareȱavailaȬ bleȱunderȱeachȱwaiver,ȱandȱtheȱrulesȱforȱreimbursementȱvaryȱ byȱprogram.ȱ
Waiverȱ participantsȱ mayȱ alsoȱ useȱ servicesȱ providedȱ throughȱtheȱ state’sȱ traditionalȱMedicaidȱplan.ȱTheseȱincludeȱ “priorȬauthorizationȱ services,”ȱ whichȱ areȱ servicesȱ thatȱ theȱ stateȱ hasȱ preȬapprovedȱ asȱ medicallyȱ necessary.ȱ 405ȱ IND.ȱ ADMIN.ȱ CODEȱ §ȱ 5Ȭ3Ȭ13.ȱ Thereȱ isȱ oneȱ typeȱ ofȱ priorȬauthorizaȬ tionȱ serviceȱ relevantȱ toȱ thisȱ case:ȱ “homeȱ healthȱ services.”ȱ Id.ȱ §ȱ5Ȭ3Ȭ13(a)(9).ȱ HomeȬhealthȱ servicesȱ includeȱ “[s]killedȱ nursȬ

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ing,”ȱ “[h]omeȱ healthȱ aidȱ services,”ȱ “[p]hysicalȱ andȱ occupaȬ tionalȱtherapies,”ȱ“[s]peechȱpathologyȱservices,”ȱ“[r]enalȱdialȬ ysis,”ȱ andȱ “[t]elehealthȱ services.”ȱ Id.ȱ §ȱ1Ȭ4.2Ȭ3(a).ȱ HomeȬ healthȱservices,ȱasȱtheȱnameȱsuggests,ȱ“mustȱbeȱperformedȱinȱ theȱhome.”ȱId.ȱ§ȱ1Ȭ4.2Ȭ3.ȱIfȱaȱserviceȱisȱavailableȱunderȱbothȱtheȱ relevantȱ waiverȱ andȱ theȱ stateȱ Medicaidȱ programs,ȱ particiȬ pantsȱmustȱgenerallyȱuseȱpriorȬauthorizationȱservicesȱbeforeȱ tappingȱintoȱtheirȱwaiverȱfunds.ȱ
TheȱAgencyȱassignsȱaȱcaseȱmanagerȱtoȱeachȱwaiverȱparticȬ ipant.ȱTheȱcaseȱmanagerȱworksȱwithȱtheȱparticipantȱandȱhisȱorȱ herȱ guardianȱ toȱ determineȱ theȱ appropriateȱ servicesȱ forȱ thatȱ participant.ȱCertainȱservicesȱareȱavailableȱunderȱsomeȱwaiversȱ butȱnotȱunderȱothers.ȱAfterȱtheȱcaseȱmanager,ȱparticipant,ȱandȱ guardianȱ createȱ anȱ individualizedȱ plan,ȱ theȱ caseȱ managerȱ submitsȱ itȱ forȱ approvalȱ toȱ theȱ appropriateȱ Agencyȱ subdiviȬ sion.ȱ
Cȱ
Inȱ2006,ȱtheȱstateȱopenedȱtheȱA&Dȱwaiverȱtoȱpersonsȱwithȱ developmentalȱdisabilities,ȱsoȱlongȱasȱtheyȱhadȱeitherȱ“skilledȱ medicalȱneed”ȱorȱsubstantialȱfunctionalȱlimitations.ȱInȱ2011,ȱitȱ reversedȱthisȱpolicy,ȱandȱthereafterȱallowedȱonlyȱpeopleȱwhoȱ couldȱdemonstrateȱbothȱaȱskilledȱmedicalȱneedȱandȱsubstantialȱ functionalȱ limitationsȱ toȱ participateȱ inȱ theȱ A&Dȱ waiver.ȱ Asȱ spaceȱ becameȱ availableȱ onȱ theȱ FSȱ waiver,ȱ theȱ stateȱ movedȱ A&DȱwaiverȱparticipantsȱtoȱtheȱFSȱwaiver.ȱ
Theȱ plaintiffsȱ areȱ developmentallyȱ disabledȱ peopleȱ whoȱ relyȱ onȱ Indiana’sȱ homeȬȱ andȱ communityȬbasedȱ Medicaidȱ waiverȱ programs.ȱ Karlaȱ Steimelȱ suffersȱ fromȱ cerebralȱ palsy,ȱ whileȱThomasȱMaertzȱhasȱbeenȱdiagnosedȱwithȱbothȱcerebralȱ palsyȱandȱmentalȱretardation.ȱColtonȱandȱCodyȱColeȱareȱtwinȱ

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brothers;ȱtheyȱbothȱsufferȱfromȱcerebralȱpalsy.ȱTimothyȱKeisȬ terȱhasȱbeenȱdiagnosedȱwithȱmentalȱretardation.ȱMichaelȱandȱ Loisȱ Beckemȱ areȱ siblings;ȱ Michaelȱ hasȱ beenȱ diagnosedȱ withȱ mildȱmentalȱretardation,ȱandȱLoisȱhasȱDown’sȱsyndrome.ȱ
Beforeȱ 2013,ȱ theȱ plaintiffsȱ wereȱ servedȱ underȱ Indiana’sȱ A&Dȱwaiver.ȱUnderȱtheȱA&Dȱwaiver,ȱtheyȱwereȱableȱtoȱenjoyȱ communityȱ activitiesȱ suchȱ asȱ eatingȱ inȱ restaurants,ȱ visitingȱ fleaȱ markets,ȱ andȱ windowȬshopping.ȱ Michaelȱ andȱ Loisȱ Beckemȱattendedȱdayȱservices,ȱwhichȱallowedȱthemȱtoȱgoȱintoȱ theȱcommunityȱandȱinteractȱwithȱpeopleȱwithoutȱdisabilities.ȱ Whileȱallȱofȱtheȱplaintiffsȱsufferȱfromȱsevereȱconditions,ȱnoneȱ ofȱthemȱneedsȱtheȱskilledȱmedicalȱservicesȱnecessaryȱtoȱmeetȱ theȱprerequisitesȱofȱtheȱA&Dȱwaiver,ȱasȱitȱhasȱbeenȱstructuredȱ sinceȱ 2011.ȱ Allȱ wereȱ shiftedȱ toȱ theȱ FSȱ waiverȱ inȱ 2013.ȱ Later,ȱ Karlaȱ Steimelȱ andȱ Timothyȱ Keisterȱ wereȱ movedȱ toȱ theȱ CIHȱ waiver;ȱ theyȱ concedeȱ thatȱ theirȱ claimsȱ areȱ moot.ȱ Whileȱ Loisȱ Beckemȱ hasȱ sinceȱ beenȱ movedȱ backȱ toȱ theȱ A&Dȱ waiver,ȱ sheȱ assertsȱ aȱ damagesȱ claim.ȱ Theȱ Coles,ȱ Maertz,ȱ andȱ Michaelȱ BeckemȱremainȱonȱtheȱFSȱwaiver.ȱ
Theȱplaintiffsȱstillȱbeforeȱusȱallegeȱthatȱtheirȱforcedȱmoveȱ toȱtheȱFSȱwaiverȱhasȱdramaticallyȱcurtailedȱtheirȱabilityȱtoȱparȬ ticipateȱ inȱ communityȱ activities.ȱ Accordingȱ toȱ theirȱ guardiȬ ans’ȱ affidavits,ȱ theȱ plaintiffsȱ wereȱ ableȱ toȱ enjoyȱ roughlyȱ 40ȱ hoursȱinȱ theȱcommunityȱeachȱweekȱunderȱ theȱA&Dȱwaiver.ȱ SinceȱtheirȱtransitionȱtoȱtheȱFSȱwaiver,ȱtheirȱcommunityȱtimeȱ hasȱshrunkȱtoȱ10ȱtoȱ12ȱhoursȱperȱweek.ȱThisȱroughlyȱ30ȬhourȬ perȬweekȱ reductionȱ isȱ aȱ resultȱ ofȱ theȱ FSȱ waiverȱ cap,ȱ underȱ whichȱtheyȱareȱallowedȱtoȱuseȱonlyȱ$16,545ȱinȱwaiverȱservices.ȱ (Thatȱamountȱofȱmoneyȱworksȱout,ȱplaintiffsȱsay,ȱtoȱroughlyȱ 12ȱ hoursȱ perȱ weekȱ inȱ servicesȱ thatȱ canȱ beȱ usedȱ outsideȱ theȱ home.)ȱAlthoughȱtheȱplaintiffsȱareȱalsoȱeligibleȱforȱMedicaidȱ

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priorȬauthorizationȱ services,ȱ thoseȱ servicesȱ mayȱ notȱ beȱ usedȱ outsideȱtheȱhomeȱandȱsoȱareȱnotȱrelevantȱtoȱtheseȱclaims.ȱ
Theȱplaintiffs’ȱguardiansȱalsoȱaverȱthatȱdespiteȱtheȱavailaȬ bilityȱofȱpriorȬauthorizationȱservices,ȱrestrictionsȱonȱthoseȱserȬ vicesȱhaveȱledȱtoȱlapsesȱinȱsupervisionȱthatȱhaveȱeitherȱledȱtoȱ injuryȱorȱseriousȱriskȱofȱinjuryȱtoȱtheȱplaintiffs.ȱTheȱplaintiffsȱ contendȱthat,ȱgivenȱtheȱlimitationsȱonȱpriorȬauthorizationȱserȬ vicesȱandȱtheȱmonetaryȱ capȱonȱ theȱFSȱwaiver,ȱtheseȱ gapsȱinȱ supervisionȱ areȱ unavoidableȱ andȱ haveȱ putȱ themȱ atȱ seriousȱ riskȱofȱinstitutionalization.ȱTamaraȱAwald,ȱtheȱmotherȱofȱColȬ tonȱandȱCodyȱCole,ȱalsoȱindicatesȱthatȱsheȱhasȱhadȱtoȱpayȱoutȬ ofȬpocketȱforȱcareȱwhenȱsheȱtravelsȱforȱwork.ȱ
Karlaȱ Steimelȱ filedȱ herȱ initialȱ classȬactionȱ complaintȱ andȱ motionȱforȱclassȱcertificationȱonȱJuneȱ14,ȱ2013.ȱBeforeȱtheȱcourtȱ ruledȱ onȱ thatȱ motion,ȱ Maertz,ȱ theȱ Coles,ȱ andȱ Keisterȱ movedȱ forȱ leaveȱ toȱ interveneȱ asȱ namedȱ plaintiffs.ȱ Theȱ districtȱ courtȱ grantedȱtheȱinterventionȱmotion,ȱbutȱonȱMarchȱ24,ȱ2014ȱitȱdeȬ niedȱclassȱcertification.ȱTheȱBeckemsȱcommencedȱtheirȱsepaȬ rateȱcaseȱonȱAprilȱ30,ȱ2014.ȱ
TheȱpartiesȱinȱbothȱcasesȱfiledȱcrossȬmotionsȱforȱsummaryȱ judgment.ȱTheȱstateȱarguedȱthatȱitȱshouldȱprevailȱbecauseȱtheȱ plaintiffs’ȱclaimsȱdidȱnotȱevenȱimplicateȱtheȱintegrationȱmanȬ date,ȱwhileȱtheȱplaintiffsȱcontendedȱthatȱtheyȱwereȱentitledȱtoȱ judgmentȱ becauseȱ theyȱ hadȱ shownȱ beyondȱ disputeȱ thatȱ theȱ stateȱwasȱviolatingȱtheȱintegrationȱmandate.ȱTheȱdistrictȱcourtȱ agreedȱ withȱ theȱ stateȱ andȱ grantedȱ itȱ summaryȱ judgmentȱ inȱ bothȱcasesȱonȱJuneȱ9,ȱ2015.ȱThisȱappealȱfollowed.ȱ
ȱ
ȱ
ȱ

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IIȱ
CongressȱintendedȱtheȱADAȱ“toȱprovideȱaȱclearȱandȱcomȬ prehensiveȱnationalȱmandateȱforȱtheȱeliminationȱofȱdiscrimiȬ nationȱagainstȱindividualsȱwithȱdisabilities.”ȱOlmsteadȱv.ȱL.C.ȱ exȱ rel.ȱ Zimring,ȱ 527ȱ U.S.ȱ 581,ȱ 589ȱ (1999)ȱ (quotingȱ 42ȱ U.S.C.ȱ§ȱ12101(b)(1)).ȱSectionȱ12132ȱdecreesȱthatȱ“noȱqualifiedȱ individualȱwithȱaȱdisabilityȱshall,ȱbyȱreasonȱofȱsuchȱdisability,ȱ beȱexcludedȱfromȱparticipationȱinȱorȱbeȱdeniedȱtheȱbenefitsȱofȱ theȱ services,ȱ programs,ȱ orȱ activitiesȱ ofȱ aȱ publicȱ entity,ȱ orȱ beȱ subjectedȱtoȱdiscriminationȱbyȱanyȱsuchȱentity.”ȱAȱ“publicȱenȬ tity”ȱincludesȱ“anyȱStateȱorȱlocalȱgovernment”ȱorȱ“anyȱdepartȬ mentȱ [or]ȱ agencyȱ …ȱ ofȱ aȱ Stateȱ …ȱ orȱ localȱ government.”ȱ Id.ȱ §§ȱ12131(1)(A),ȱ(B).ȱAȱ“qualifiedȱindividualȱwithȱaȱdisability”ȱ isȱ someoneȱ who,ȱ “withȱ orȱ withoutȱ reasonableȱ modificationsȱ toȱrules,ȱpolicies,ȱorȱpracticesȱ…ȱmeetsȱtheȱessentialȱeligibilityȱ requirementsȱforȱtheȱreceiptȱofȱservicesȱorȱtheȱparticipationȱinȱ programsȱ orȱ activitiesȱ providedȱ byȱ aȱ publicȱ entity.”ȱ Id.ȱ §ȱ12131(2).ȱ
Theȱ ADAȱ directsȱ theȱ Attorneyȱ Generalȱ toȱ “promulgateȱ regulationsȱ …ȱ thatȱ implement”ȱ theȱ provisionsȱ ofȱ Titleȱ II,ȱ inȬ cludingȱ§ȱ12132.ȱId.ȱ§ȱ12134(a).ȱInȱresponseȱtoȱthisȱcommand,ȱ theȱ Attorneyȱ Generalȱ implementedȱ theȱ regulationȱ knownȱ asȱ theȱ “integrationȱ mandate.”ȱ Theȱ integrationȱ mandateȱ statesȱ thatȱ “[a]ȱ publicȱ entityȱ shallȱ administerȱ services,ȱ programs,ȱ andȱactivitiesȱinȱtheȱmostȱintegratedȱsettingȱappropriateȱtoȱtheȱ needsȱ ofȱ qualifiedȱ individualsȱ withȱ disabilities.”ȱ28ȱ C.F.R.ȱ §ȱ35.130(d)ȱ (1998).ȱ Theȱ regulations’ȱ preambleȱ definesȱ “theȱ mostȱintegratedȱsettingȱappropriateȱtoȱtheȱneedsȱofȱqualifiedȱ individualsȱ withȱ disabilities”ȱ asȱ “aȱ settingȱ thatȱ enablesȱ indiȬ vidualsȱwithȱdisabilitiesȱtoȱinteractȱwithȱnonȬdisabledȱpersonsȱ toȱtheȱfullestȱextentȱpossible.”ȱ28ȱC.F.R.ȱpt.ȱ35,ȱApp.ȱB.ȱPublicȱ

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entitiesȱ areȱ requiredȱ toȱ “makeȱ reasonableȱ modifications”ȱ toȱ avoidȱ“discriminationȱonȱtheȱbasisȱofȱdisability”ȱexceptȱifȱdoȬ ingȱ soȱ wouldȱ “fundamentallyȱ alter”ȱ theȱ natureȱ ofȱ theȱ proȬ grams.ȱ28ȱC.F.R.ȱ§ȱ35.130(b)(7).ȱ
Becauseȱ theȱ relevantȱ provisionsȱ ofȱ theȱ Rehabilitationȱ Actȱ andȱ itsȱ regulationsȱ areȱ “materiallyȱ identical”ȱ toȱ theirȱ ADAȱ counterparts,ȱ Bruggemanȱexȱrel.ȱBruggemanȱv.ȱBlagojevich,ȱ 324ȱ F.3dȱ906,ȱ912ȱ(7thȱCir.ȱ2003),ȱcourtsȱ“construeȱandȱapplyȱthemȱ inȱ aȱ consistentȱ manner.”ȱ Radaszewskiȱ exȱ rel.ȱ Radaszewskiȱ v.ȱ Maram,ȱ 383ȱ F.3dȱ 599,ȱ 607ȱ (7thȱ Cir.ȱ 2004).ȱ Theȱ stateȱ doesȱ notȱ challengeȱ theȱ validityȱ ofȱ anyȱ ofȱ theȱ regulatoryȱ provisionsȱ atȱ issue.ȱ
Weȱaddressȱtheȱparties’ȱargumentsȱinȱtwoȱstages:ȱfirst,ȱweȱ considerȱwhetherȱtheȱplaintiffs’ȱclaimsȱfallȱwithinȱtheȱscopeȱofȱ theȱ integrationȱ mandate;ȱ andȱ second,ȱ weȱ askȱ whetherȱ theȱ state’sȱ policyȱ violatedȱ theȱ mandate.ȱ Theȱ plaintiffsȱ offerȱ twoȱ theoriesȱforȱourȱconsideration:ȱ(1)ȱthatȱtheȱstate’sȱpoliciesȱhaveȱ impermissiblyȱ renderedȱ theȱ plaintiffsȱ institutionalizedȱ inȱ theirȱ ownȱ homes,ȱ andȱ (2)ȱ thatȱ theȱ state’sȱ policiesȱ haveȱ putȱ themȱatȱseriousȱriskȱofȱinstitutionalization.ȱ
Weȱ reviewȱ deȱ novoȱ theȱ districtȱ court’sȱ decisionȱ toȱ grantȱ summaryȱjudgment.ȱAdvanceȱCableȱCo.,ȱLLCȱv.ȱCincinnatiȱIns.ȱ Co.,ȱ 788ȱ F.3dȱ 743,ȱ 746ȱ (7thȱ Cir.ȱ 2015).ȱ Whenȱ reviewingȱ crossȬ motionsȱforȱsummaryȱjudgment,ȱweȱ“takeȱtheȱmotionsȱoneȱatȱ aȱtimeȱandȱthen,ȱasȱusual,ȱconstrueȱallȱfactsȱandȱdrawȱallȱreaȬ sonableȱinferencesȱinȱfavorȱofȱtheȱnonȬmovingȱparty.”ȱId.ȱSumȬ maryȱjudgmentȱisȱappropriateȱonlyȱ“ifȱtheȱmovantȱshowsȱthatȱ thereȱisȱnoȱgenuineȱdisputeȱasȱtoȱanyȱmaterialȱfactȱandȱtheȱmoȬ vantȱisȱentitledȱtoȱjudgmentȱasȱaȱmatterȱofȱlaw.”ȱFED.ȱR.ȱCIV.ȱP.ȱ 56(a).ȱ

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Aȱ
Inȱ enactingȱ theȱ ADA,ȱ Congressȱ prohibitedȱ outrightȱ disȬ criminationȱ andȱ “identifiedȱ unjustifiedȱ ‘segregation’ȱ ofȱ perȬ sonsȱ withȱ disabilitiesȱ asȱ aȱ ‘for[m]ȱ ofȱ discrimination.’”ȱ Olmstead,ȱ527ȱU.S.ȱatȱ600ȱ(quotingȱ§ȱ12101(a)(2)).ȱ“Unjustifiedȱ isolation”ȱ isȱ thereforeȱ “properlyȱ regardedȱ asȱ discriminationȱ basedȱonȱdisability.”ȱId.ȱatȱ597.ȱTheȱSupremeȱCourtȱheldȱthatȱ “discrimination”ȱunderȱ§ȱ12132ȱincludedȱ“notȱonlyȱdisparateȱ treatmentȱofȱcomparablyȱsituatedȱpersonsȱbutȱalsoȱundueȱinȬ stitutionalizationȱ ofȱ disabledȱ persons,ȱ noȱ matterȱ howȱ anyoneȱ elseȱisȱtreated.”ȱAmundsonȱexȱrel.ȱAmundsonȱv.ȱWisconsinȱDep’tȱofȱ HealthȱServs.,ȱ721ȱF.3dȱ871,ȱ874ȱ(7thȱCir.ȱ2013)ȱ(citingȱOlmstead,ȱ 527ȱU.S.ȱatȱ597–603).ȱ
OlmsteadȱdealtȱonlyȱwithȱtheȱproblemȱofȱunjustifiedȱinstiȬ tutionalȱ segregation.ȱ Seeȱ Olmstead,ȱ 527ȱ U.S.ȱ atȱ 600.ȱ Itsȱ raȬ tionale,ȱhowever,ȱreachesȱmoreȱbroadly.ȱTheȱCourtȱsawȱ“twoȱ evidentȱjudgments”ȱinȱtheȱintegrationȱmandate.ȱId.ȱTheȱfirstȱisȱ thatȱ“institutionalȱplacementȱofȱpersonsȱwhoȱcanȱhandleȱandȱ benefitȱ fromȱ communityȱ settingsȱ perpetuatesȱ unwarrantedȱ assumptionsȱthatȱpersonsȱsoȱisolatedȱareȱincapableȱorȱunworȬ thyȱofȱparticipatingȱinȱcommunityȱlife.”ȱId.ȱTheȱsecondȱisȱthatȱ “confinementȱinȱanȱinstitutionȱseverelyȱdiminishesȱtheȱeveryȬ dayȱ lifeȱ activitiesȱ ofȱ individuals,ȱ includingȱ familyȱ relations,ȱ socialȱ contacts,ȱ workȱ options,ȱ economicȱ independence,ȱ eduȬ cationalȱadvancement,ȱandȱculturalȱenrichment.”ȱId.ȱatȱ601.ȱ
TheȱCourtȱhadȱnoȱoccasionȱtoȱconsiderȱwhetherȱtheȱsameȱ evilsȱitȱhadȱidentifiedȱforȱinstitutionalȱplacementsȱmightȱexistȱ inȱsomeȱsettingsȱoutsideȱofȱanȱinstitution.ȱThisȱcaseȱpresentsȱ thatȱ question:ȱ whetherȱ isolationȱ inȱ theȱ homeȱ forȱ aȱ personȱ “whoȱ canȱ handleȱ andȱ benefitȱ from”ȱ timeȱ outȱ inȱ theȱ generalȱ communityȱisȱalsoȱinconsistentȱwithȱtheȱintegrationȱmandate.ȱ

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Weȱ seeȱ noȱ reasonȱ whyȱ theȱ sameȱ analysisȱ shouldȱ notȱ apply.ȱ See,ȱe.g.,ȱMarkȱC.ȱWeber,ȱHomeȱandȱCommunityȬBasedȱServices,ȱ Olmstead,ȱ andȱ Positiveȱ Rights:ȱ Aȱ Preliminaryȱ Discussion,ȱ 39ȱWAKEȱFORESTȱL.ȱREV.ȱ269,ȱ274ȱ(2004)ȱ(“AsȱwithȱraceȱdiscrimȬ ination,ȱgovernmentȬsanctionedȱseparationȱtransmitsȱaȱstrongȱ messageȱ thatȱ theȱ outȬgroupȱ isȱ inferiorȱ andȱ thatȱ privateȱ disȬ criminationȱisȱacceptable.”)ȱ(citingȱBrownȱv.ȱBd.ȱofȱEd.ȱofȱTopeka,ȱ 347ȱU.S.ȱ483,ȱ492ȱn.5ȱ(1954));ȱTimothyȱM.ȱCook,ȱTheȱAmericansȱ withȱ Disabilitiesȱ Act:ȱ Theȱ Moveȱ toȱ Integration,ȱ 64ȱ TEMP.ȱ L.ȱ REV.ȱ 393,ȱ441ȱ (1991)ȱ (collectingȱ studiesȱ concludingȱ thatȱ “[t]heȱ reȬ searchȱ dataȱ shows,ȱ withoutȱ doubtȱ …ȱ thatȱ prejudiceȱ isȱ lessȬ enedȱ throughȱ integration”).ȱ Isolationȱ inȱ aȱ homeȱ canȱ justȱ asȱ “severelyȱ diminish[]ȱ theȱ everydayȱ lifeȱ activities”ȱ ofȱ peopleȱ withȱdisabilities.ȱOlmstead,ȱ 527ȱU.S.ȱatȱ 601.ȱ Inȱfact,ȱ althoughȱ familyȱ relationsȱ mightȱ beȱ enhancedȱ atȱ homeȱ ifȱ peopleȱ areȱ around,ȱisolationȱinȱaȱhomeȱmayȱoftenȱbeȱworseȱthanȱconfineȬ mentȱtoȱanȱinstitutionȱonȱeveryȱotherȱmeasureȱofȱ“lifeȱactiviȬ ties”ȱthatȱOlmsteadȱrecognized.ȱ
Inȱ accordanceȱ withȱ Olmstead,ȱ theȱ Departmentȱ ofȱ Justiceȱ hasȱreleasedȱguidanceȱdirectingȱthatȱtheȱintegrationȱmandateȱ beȱ readȱ broadly.ȱ Theȱ DOJ’sȱ interpretationȱ ofȱ theȱ mandateȱ “warrant[s]ȱrespect”ȱbecauseȱCongressȱgaveȱitȱtheȱtaskȱofȱisȬ suingȱ theȱ relevantȱ regulations.ȱ Id.ȱ atȱ 597–98.ȱ Theȱ degreeȱ ofȱ deferenceȱisȱanotherȱmatter:ȱOlmsteadȱsaidȱnothingȱonȱtheȱsubȬ ject.ȱ Inȱ general,ȱ weȱ deferȱtoȱanȱ agency’sȱinterpretationȱofȱ itsȱ ownȱregulationȱunlessȱtheȱagency’sȱinterpretationȱisȱ“plainlyȱ erroneousȱorȱinconsistentȱwithȱtheȱregulation”ȱorȱ“thereȱisȱreaȬ sonȱtoȱsuspectȱthatȱtheȱagency’sȱinterpretationȱ‘doesȱnotȱreflectȱ theȱ agency’sȱ fairȱ andȱ consideredȱ judgmentȱ onȱ theȱ matterȱ inȱ question.’”ȱChristopherȱv.ȱSmithKlineȱBeechamȱCorp.,ȱ132ȱS.ȱCt.ȱ 2156,ȱ2166ȱ(2012)ȱ(quotingȱAuerȱv.ȱRobbins,ȱ519ȱU.S.ȱ452,ȱ461–

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62ȱ (1997)).ȱ Weȱ seeȱ noȱ suchȱ flawsȱ inȱ theȱ pathȱ thatȱ DOJȱ hasȱ taken.ȱ
Theȱguidanceȱindicatesȱthatȱtheȱ“mostȱintegratedȱsetting”ȱ isȱ“aȱsettingȱthatȱenablesȱindividualsȱwithȱdisabilitiesȱtoȱinterȬ actȱwithȱnonȬdisabledȱpersonsȱtoȱtheȱfullestȱextentȱpossible.”ȱ U.S.ȱ Dep’tȱ ofȱ Justice,ȱ Statementȱ ofȱ theȱ Departmentȱ ofȱ Justiceȱ onȱ theȱIntegrationȱMandateȱofȱTitleȱIIȱofȱtheȱADAȱandȱOlmsteadȱv.ȱL.C.ȱ (Juneȱ22,ȱ2011).ȱItȱnotesȱthatȱ“[i]ntegratedȱsettingsȱareȱlocatedȱ inȱmainstreamȱsociety.”ȱId.ȱSuchȱsettingsȱ“offerȱaccessȱtoȱcomȬ munityȱactivitiesȱandȱopportunitiesȱatȱtimes,ȱfrequenciesȱandȱ withȱ personsȱ ofȱ anȱ individual’sȱ choosing;ȱ affordȱ individualsȱ choiceȱ inȱ theirȱ dailyȱ lifeȱ activities;ȱ and,ȱ provideȱ individualsȱ withȱdisabilitiesȱtheȱopportunityȱtoȱinteractȱwithȱnonȬdisabledȱ personsȱtoȱtheȱfullestȱextentȱpossible.”ȱId.ȱ
Underȱ theȱ Guidance,ȱtheȱstateȱmightȱviolateȱtheȱintegraȬ tionȱmandateȱifȱitȱ“operatesȱ…ȱprogramsȱthatȱsegregateȱindiȬ vidualsȱ withȱ disabilities”ȱ orȱ “throughȱ itsȱ planning,ȱ serviceȱ systemȱ design,ȱ fundingȱ choices,ȱ orȱ serviceȱ implementationȱ practices,ȱpromotesȱorȱreliesȱuponȱtheȱsegregationȱofȱindividȬ ualsȱwithȱdisabilitiesȱinȱprivateȱfacilitiesȱorȱprograms.”ȱId.ȱTheȱ mandateȱ“extend[s]ȱtoȱpersonsȱatȱseriousȱriskȱofȱinstitutionalȬ izationȱorȱsegregationȱandȱ[is]ȱnotȱlimitedȱtoȱindividualsȱcurȬ rentlyȱinȱinstitutionalȱorȱotherȱsegregatedȱsettings.”ȱId.ȱFinally,ȱ soȱlongȱasȱanyȱadditionalȱservicesȱdoȱnotȱcauseȱaȱfundamentalȱ alterationȱ inȱ theȱ stateȱ program,ȱ theȱ stateȱ mayȱ beȱ requiredȱ toȱ provideȱ them;ȱ budgetȱ cutsȱ canȱ violateȱ theȱ integrationȱ manȬ date.ȱ Id.ȱ Givenȱ theȱ integrationȱ mandate’sȱ maximalistȱ lanȬ guage—itȱ demandsȱ “theȱ mostȱ integratedȱ settingȱ appropriȬ ate,”ȱ28ȱC.F.R.ȱ§ȱ35.130(d),ȱwhichȱitȱdefinesȱasȱallowingȱinterȬ actionȱwithȱnonȬdisabledȱpersonsȱ“toȱtheȱfullestȱextentȱpossiȬ ble,”ȱ28ȱC.F.R.ȱpt.ȱ35,ȱApp.ȱB—weȱhaveȱnoȱreasonȱnotȱtoȱfollowȱ

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theȱDOJ’sȱinterpretationȱofȱtheȱmandate.ȱAndȱtheȱmandate,ȱasȱ weȱhaveȱnoted,ȱlogicallyȱappliesȱtoȱallȱsettings,ȱnotȱjustȱtoȱinȬ stitutionalȱsettings.ȱItȱbarsȱunjustifiedȱsegregationȱofȱpersonsȱ withȱdisabilities,ȱwhereverȱitȱtakesȱplace.ȱ
TheȱstateȱrespondsȱwithȱaȱnarrowȱreadingȱofȱtheȱintegraȬ tionȱmandateȱandȱanȱunwillingnessȱtoȱengageȱwithȱtheȱDOJ’sȱ interpretation.ȱ Itȱ arguesȱ thatȱ theȱ integrationȱ mandateȱ coversȱ onlyȱ claimsȱ byȱpeopleȱ whoȱliterallyȱ haveȱbeenȱinstitutionalȬ ized,ȱandȱthatȱaȱpersonȱwithȱaȱdisabilityȱwhoȱisȱhousedȱinȱtheȱ communityȱisȱthereforeȱoutsideȱitsȱscope.ȱTheȱstateȱinsistsȱthatȱ “setting”ȱ refersȱ onlyȱ toȱ twoȱ kindsȱ ofȱ physicalȱ structures:ȱ anȱ institutionȱorȱaȱlocationȱinȱtheȱcommunity.ȱButȱthereȱisȱnoȱreaȬ sonȱtoȱthinkȱthatȱtheȱmandateȱpresentsȱsuchȱaȱcrabbedȱbinary.ȱ First,ȱ“thereȱisȱnothingȱinȱtheȱplainȱlanguageȱofȱtheȱregulationsȱ thatȱlimitsȱprotectionȱtoȱpersonsȱwhoȱareȱcurrentlyȱinstitutionȬ alized.”ȱPashbyȱv.ȱDelia,ȱ709ȱF.3dȱ307,ȱ322ȱ(4thȱCir.ȱ2013)ȱ(quotȬ ingȱ Fisherȱ v.ȱ Oklahomaȱ Healthȱ Careȱ Auth.,ȱ 335ȱ F.3dȱ 1175,ȱ 1181ȱ (10thȱ Cir.ȱ 2003)).ȱ Theȱ mandate’sȱ textȱ usesȱ theȱ generalȱ wordȱ “setting”ȱandȱstatesȱthatȱpeopleȱareȱentitledȱtoȱbeȱservedȱ“inȱ theȱmostȱintegratedȱsettingȱappropriateȱtoȱtheȱneedsȱofȱqualiȬ fiedȱindividualsȱwithȱ disabilities.”ȱ28ȱ C.F.R.ȱ§ȱ35.130(d).ȱTheȱ “mostȱ integratedȱ settingȱ appropriate”ȱ isȱ “aȱ settingȱ thatȱ enaȬ blesȱindividualsȱwithȱdisabilitiesȱtoȱinteractȱwithȱnonȬdisabledȱ personsȱtoȱtheȱfullestȱextentȱpossible.”ȱ28ȱC.F.R.ȱpt.ȱ35,ȱApp.ȱB.ȱ
Justȱ asȱ importantly,ȱ thereȱ isȱ plentifulȱ evidenceȱ thatȱ theȱ state’sȱinterpretationȱisȱincorrect.ȱWhenȱinterpretingȱadminisȬ trativeȱrules,ȱaȱcourtȱasksȱfirstȱ“whetherȱtheȱlanguageȱatȱissueȱ hasȱaȱplainȱandȱunambiguousȱmeaningȱwithȱregardȱtoȱtheȱparȬ ticularȱdisputeȱinȱtheȱcase.”ȱExelonȱGenerationȱCo.,ȱLLCȱv.ȱLocalȱ 15,ȱInt’lȱBhd.ȱofȱElec.ȱWorkers,ȱAFLȬCIO,ȱ676ȱF.3dȱ566,ȱ570ȱ(7thȱ Cir.ȱ2012).ȱInȱdoingȱso,ȱtheȱcourtȱ“giv[es]ȱtheȱwordsȱusedȱtheirȱ

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ordinaryȱmeaning.”ȱLawsonȱv.ȱFMRȱLLC,ȱ134ȱS.ȱCt.ȱ1158,ȱ1165ȱ (2014)ȱ(internalȱcitationȱomitted).ȱNeitherȱtheȱADAȱnorȱitsȱregȬ ulationsȱ specificallyȱ defineȱ theȱ wordȱ “setting.”ȱ Ordinarily,ȱ thatȱ wordȱ denotesȱ anȱ environmentȱ orȱ situationȱ ratherȱ thanȱ anyȱ particularȱ physicalȱ structure.ȱ Seeȱ THEȱ AMERICANȱ HERITAGEȱ DICTIONARYȱ OFȱ THEȱ ENGLISHȱ LANGUAGEȱ 1593ȱ (4thȱ ed.ȱ2000)ȱ(“Theȱcontextȱandȱenvironmentȱinȱwhichȱaȱsituationȱ isȱset;ȱtheȱbackground.”);ȱRANDOMȱHOUSEȱWEBSTER’SȱCOLLEGEȱ DICTIONARYȱ1200ȱ(2dȱed.ȱ1999)ȱ(“[T]heȱsurroundingsȱorȱenviȬ ronmentȱ ofȱ anything.”);ȱ MERRIAMȬWEBSTER’Sȱ COLLEGIATEȱ DICTIONARYȱ1072ȱ(10thȱed.ȱ1994)ȱ(“[T]heȱtime,ȱplace,ȱandȱcirȬ cumstancesȱinȱwhichȱsomethingȱoccursȱorȱdevelops[.]”).ȱTheȱ regulation’sȱuseȱofȱtheȱwordȱ“most”ȱ(integrated)ȱandȱitsȱreferȬ enceȱtoȱ“a”ȱsettingȱalsoȱimplyȱmoreȱthanȱtwoȱpossibilities.ȱ
Ifȱtheseȱfactsȱstickȱaȱknifeȱinȱtheȱstate’sȱargument,ȱtheȱDOJȱ guidelinesȱtwistȱit.ȱTheyȱspecificallyȱincludeȱtheȱplaintiffs’ȱtwoȱ theoriesȱ withinȱ theȱ integrationȱ mandate’sȱ ambit.ȱ Moreover,ȱ theȱADAȱandȱtheȱintegrationȱmandate’sȱ“protectionsȱwouldȱbeȱ meaninglessȱ ifȱ plaintiffsȱ wereȱ requiredȱ toȱ segregateȱ themȬ selvesȱbyȱenteringȱanȱinstitutionȱbeforeȱtheyȱcouldȱchallengeȱ anȱ allegedlyȱ discriminatoryȱ lawȱ orȱ policyȱ thatȱ threatensȱ toȱ forceȱthemȱintoȱsegregatedȱisolation.”ȱFisher,ȱ335ȱF.3dȱatȱ1181.ȱ Inȱthisȱcase,ȱtheȱplaintiffs’ȱquandaryȱisȱKafkaesque:ȱIndiana’sȱ institutionsȱcanȱserveȱonlyȱaȱquarterȱofȱtheȱpersonsȱwithȱdisaȬ bilitiesȱcurrentlyȱonȱtheȱCIHȱwaiverȱalone.ȱEvenȱifȱtheȱplainȬ tiffsȱ hadȱ toȱ beȱ institutionalized,ȱ itȱ isȱ quiteȱ possibleȱ thatȱ theyȱ couldȱnotȱbe.ȱ
Amundsonȱisȱnotȱtoȱtheȱcontrary.ȱNowhereȱdidȱAmundsonȱ indicateȱthatȱsegregationȱwithinȱtheȱcommunityȱbeyondȱanȱinȬ stitution’sȱwallsȱcouldȱnotȱimplicateȱtheȱintegrationȱmandate.ȱ TheȱAmundsonȱplaintiffsȱdidȱnotȱpresentȱsuchȱaȱclaim,ȱandȱsoȱ

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theȱ opinionȱ doesȱ notȱ addressȱ it.ȱ Amundsonȱ decidedȱ insteadȱ thatȱtheȱplaintiffs’ȱclaimsȱwereȱnotȱripeȱbecauseȱtheyȱhadȱnotȱ pleadedȱsufficientȱfactsȱtoȱallegeȱthatȱtheyȱwereȱatȱseriousȱriskȱ ofȱinstitutionalization.ȱWhileȱsomeȱofȱtheȱAmundsonȱplaintiffsȱ hadȱbeenȱrequiredȱtoȱleaveȱgroupȱhomes,ȱtheyȱdidȱ“notȱallegeȱ inabilityȱ toȱ findȱ anotherȱ groupȱ homeȱ willingȱ toȱ acceptȱ theȱ levelȱ ofȱ reimbursement”ȱ Wisconsinȱ wasȱ offering.ȱ 721ȱ F.3dȱ atȱ 873–74.ȱWisconsinȱhadȱrepresentedȱthatȱitȱhadȱ“safeguardsȱinȱ placeȱ thatȱ [would]ȱ preventȱ anyȱ plaintiffȱ fromȱ beingȱ transȬ ferredȱ toȱ anȱ institution”;ȱ theȱ plaintiffsȱ hadȱ notȱ givenȱ “suffiȬ cientȱ reasonȱ toȱ thinkȱ thatȱ theseȱ [would]ȱ fail.”ȱ Id.ȱ atȱ 874.ȱ AmundsonȱdidȱnotȱmentionȱtheȱDOJȱGuidanceȱoneȱwayȱorȱtheȱ other;ȱ theȱ stateȱ thusȱ overreachesȱ whenȱ itȱ contendsȱ thatȱ Amundsonȱ“presumably”ȱrejectedȱtheȱDOJȱGuidance.ȱ
Theȱplaintiffsȱinȱourȱcaseȱhaveȱprovidedȱevidenceȱthatȱtheyȱ needȱconstantȱsupervisionȱand,ȱdespiteȱtheirȱbestȱefforts,ȱtheȱ servicesȱ providedȱ underȱ theȱ FSȱ waiverȱ haveȱ provedȱ inadeȬ quateȱtoȱpreventȱlifeȬthreateningȱgapsȱinȱcare.ȱAgainȱturningȱ toȱAmundson,ȱtheȱstateȱarguesȱthatȱtheȱhypotheticalȱavailabilȬ ityȱofȱaȱCIHȱwaiverȱisȱaȱsufficientȱsafeguard.ȱButȱtheȱstateȱdidȱ notȱpresentȱthisȱargumentȱtoȱtheȱdistrictȱcourt,ȱandȱitȱisȱthereȬ foreȱwaived.ȱSeeȱDomkaȱv.ȱPortageȱCnty.,ȱWis.,ȱ523ȱF.3dȱ776,ȱ783ȱ (7thȱCir.ȱ2008).ȱEvenȱifȱitȱwereȱnot,ȱtheȱCIHȱwaiverȱisȱamongȱ theȱ measuresȱ theȱ plaintiffsȱ argueȱ theyȱ needȱ toȱ preventȱ theirȱ institutionalization.ȱ Theȱ plaintiffsȱ haveȱ providedȱ evidenceȱ thatȱtheyȱareȱatȱseriousȱriskȱofȱbeingȱinstitutionalized.ȱAtȱthisȱ point,ȱtheȱstateȱhasȱprovidedȱnoȱevidenceȱtoȱtheȱcontraryȱandȱ hasȱdecidedȱthatȱtheȱplaintiffsȱareȱcurrentlyȱineligibleȱforȱtheȱ CIHȱwaiver.ȱThisȱisȱenoughȱtoȱraiseȱaȱgenuineȱquestionȱofȱfactȱ aboutȱtheȱadequacyȱofȱtheȱCIHȱwaiverȱasȱaȱsafeguardȱagainstȱ aȱseriousȱriskȱofȱinstitutionalization.ȱTheȱplaintiffs’ȱclaimsȱareȱ thereforeȱripe.ȱ

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AnotherȱargumentȱtheȱstateȱadvancesȱtoȱavoidȱtheȱintegraȬ tionȱ mandateȱ restsȱ onȱ languageȱ inȱ Amundsonȱ andȱ aȱ footnoteȱ inȱOlmstead,ȱbothȱofȱwhichȱitȱreadsȱtoȱsupportȱtheȱideaȱthatȱtheȱ integrationȱmandateȱimposesȱneitherȱaȱ“standardȱofȱcare”ȱnorȱ “aȱ certainȱ levelȱ ofȱ benefitsȱ toȱ individualsȱ withȱ disabilities.”ȱ Olmstead,ȱ 527ȱ U.S.ȱ atȱ 603ȱ n.14;ȱ Amundson,ȱ 721ȱ F.3dȱ atȱ 875ȱ (holdingȱthatȱtheȱADAȱdoesȱnotȱsupportȱ“aȱclaimȱofȱabsoluteȱ entitlement”ȱtoȱMedicaidȱbenefits);ȱseeȱalsoȱCohonȱexȱrel.ȱBassȱ v.ȱNewȱMexicoȱDepȇtȱofȱHealth,ȱ646ȱF.3dȱ717,ȱ729ȱ(10thȱCir.ȱ2011)ȱ (holdingȱ thatȱ ADAȱ didȱ notȱ giveȱ plaintiffȱ “legalȱ entitlement”ȱ toȱ specificȱ requestedȱ servicesȱ andȱ thatȱ sheȱ didȱ notȱ stateȱ anȱ Olmsteadȱclaimȱbecauseȱsheȱfailedȱtoȱallegeȱthatȱtheȱprogramȱ wouldȱ leadȱ toȱ herȱ unjustifiedȱ isolationȱ orȱ prematureȱ instituȬ tionalization);ȱRodriguezȱv.ȱCityȱofȱNewȱYork,ȱ197ȱF.3dȱ611,ȱ619ȱ (2dȱCir.ȱ1999)ȱ(notingȱthatȱ“OlmsteadȱreaffirmsȱthatȱtheȱADAȱ doesȱ notȱ mandateȱ theȱ provisionȱ ofȱ newȱ benefits”ȱ andȱ “adȬ dressedȱonlyȱ[]ȱwhereȱGeorgiaȱshouldȱprovideȱtreatment,ȱnotȱ whetherȱitȱmustȱprovideȱit”).ȱ
Theȱproblemȱwithȱthatȱargumentȱisȱthatȱitȱmisconstruesȱtheȱ plaintiffs’ȱtheory.ȱTheyȱhaveȱnotȱarguedȱthatȱtheyȱhaveȱanȱabȬ soluteȱentitlementȱtoȱanyȱparticularȱservicesȱorȱprogram.ȱTheyȱ insteadȱseekȱaccessȱtoȱexistingȱbenefitsȱavailableȱunderȱeitherȱ theȱuncappedȱA&DȱorȱCIHȱwaivers—benefitsȱthatȱhaveȱbeenȱ grantedȱ toȱ someȱ personsȱ withȱ disabilities,ȱ butȱ notȱ toȱ them.ȱ Whileȱ“aȱStateȱisȱnotȱobligatedȱtoȱcreateȱnewȱservices,”ȱitȱ“mayȱ violateȱ Titleȱ IIȱ whenȱ itȱ refusesȱ toȱ provideȱ anȱ existingȱ benefitȱ toȱaȱdisabledȱpersonȱthatȱwouldȱenableȱthatȱindividualȱtoȱliveȱ inȱ aȱ moreȱ communityȬintegratedȱ setting.”ȱ Radaszewski,ȱ 383ȱ F.3dȱatȱ609ȱ(citingȱOlmstead,ȱ527ȱU.S.ȱatȱ603ȱn.14ȱforȱtheȱprinciȬ pleȱ“thatȱStatesȱmustȱadhereȱtoȱtheȱADA’sȱnondiscriminationȱ requirementȱwithȱregardȱtoȱtheȱservicesȱtheyȱinȱfactȱprovide”).ȱ Theȱplaintiffsȱseekȱservicesȱthatȱexistȱandȱareȱgivenȱtoȱothers.ȱ

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TheȱstateȱmayȱalreadyȱbeȱprovidingȱatȱleastȱsomeȱofȱthoseȱserȬ vicesȱthroughȱtheȱpriorȬauthorizationȱprogram,ȱalbeitȱnotȱoutȱ inȱtheȱcommunity.ȱThat,ȱinȱfact,ȱisȱtheȱkeyȱdifferenceȱbetweenȱ waiverȱandȱpriorȬauthorizationȱservices:ȱtheȱformerȱareȱmoreȱ flexibleȱwithȱregardȱtoȱtheirȱtimingȱandȱmayȱbeȱusedȱoutsideȱ theȱ homeȱ inȱ theȱ community;ȱ theȱ latterȱ mustȱ beȱ usedȱ inȱ theȱ home.ȱ
Theȱstate’sȱfinalȱpleaȱinvokesȱvagueness:ȱIfȱtheȱintegrationȱ mandateȱ appliesȱ toȱ aȱ multiplicityȱ ofȱ “settings”ȱ andȱ canȱ reȬ quireȱtheȱshiftingȱofȱresourcesȱtoȱincreaseȱcommunityȱparticiȬ pation,ȱ whereȱ willȱ itȱ end?ȱ Theȱ shortȱ answerȱ mayȱ beȱ thatȱ itȱ endsȱwhereverȱtheȱstateȱhasȱchosen—thisȱisȱanȱantiȬdiscrimiȬ nationȱ mandate,ȱ asȱ weȱ said,ȱ notȱ aȱ floorȱ orȱ ceiling.ȱ Here,ȱ theȱ stateȱhasȱwaysȱtoȱallowȱotherwiseȱqualifiedȱpersonsȱtoȱspendȱ upwardsȱofȱ40ȱhoursȱperȱweekȱoutsideȱtheirȱhomeȱandȱinȱtheȱ community.ȱ Itȱ thusȱ mayȱ not,ȱ byȱ invokingȱ theȱ rulesȱ ofȱ itsȱ waiverȱ program,ȱ limitȱ qualifiedȱ personsȱ toȱ onlyȱ 12ȱ hoursȱ inȱ theȱcommunityȱeachȱweek.ȱThatȱfailsȱtoȱ“administerȱservices,ȱ programs,ȱandȱactivitiesȱinȱtheȱmostȱintegratedȱsettingȱapproȬ priateȱtoȱtheȱneedsȱofȱqualifiedȱindividualsȱwithȱdisabilities.”ȱ 28ȱ C.F.R.ȱ §ȱ35.130(d).ȱ Basedȱ onȱ theȱ purposeȱ andȱ textȱ ofȱ theȱ ADA,ȱ theȱ textȱ ofȱ theȱ integrationȱ mandate,ȱ theȱ Supremeȱ Court’sȱrationaleȱinȱOlmstead,ȱandȱtheȱDOJȱGuidance,ȱweȱholdȱ thatȱ theȱ integrationȱ mandateȱ isȱ implicatedȱ whereȱ theȱ state’sȱ policiesȱ haveȱ eitherȱ (1)ȱ segregatedȱ personsȱ withȱ disabilitiesȱ withinȱtheirȱhomes,ȱorȱ(2)ȱputȱthemȱatȱseriousȱriskȱofȱinstituȬ tionalization.ȱ
Bȱ
Becauseȱ itȱ thoughtȱ thatȱ theȱ integrationȱ mandateȱ wasȱ notȱ evenȱimplicatedȱhere,ȱtheȱdistrictȱcourtȱdidȱnotȱreachȱtheȱquesȬ tionȱwhetherȱitȱwasȱviolated.ȱWe,ȱhowever,ȱmustȱpressȱon,ȱinȱ

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lightȱofȱourȱconclusionȱthatȱtheȱmandateȱisȱinȱplay.ȱOnȱcrossȬ motionsȱ forȱ summaryȱ judgment,ȱ plaintiffsȱ presentedȱ eviȬ denceȱ thatȱ theyȱ wereȱ segregatedȱ fromȱ theȱ communityȱ andȱ thatȱtheȱstate’sȱ2011ȱpolicyȱwasȱtoȱblame.ȱWithoutȱchallengingȱ theȱ contentionsȱ aboutȱ theȱ degreeȱ ofȱ communityȱ interactionȱ plaintiffsȱ areȱ receiving,ȱ theȱ stateȱ presentedȱ evidenceȱ thatȱ showed,ȱinȱitsȱview,ȱthatȱtheȱ2011ȱpolicyȱchangeȱwasȱnotȱtheȱ causeȱofȱwhateverȱsegregationȱisȱoccurring.ȱ
1ȱ
WeȱturnȱonceȱagainȱtoȱOlmsteadȱforȱtheȱproperȱwayȱtoȱanaȬ lyzeȱtheseȱarguments.ȱItȱsetȱoutȱaȱtestȱforȱdeterminingȱwhetherȱ theȱADA’sȱintegrationȱmandateȱisȱviolated:ȱ
[U]nderȱTitleȱIIȱofȱtheȱADA,ȱStatesȱareȱrequiredȱ toȱprovideȱcommunityȬbasedȱtreatmentȱforȱperȬ sonsȱwithȱmentalȱdisabilitiesȱwhenȱ[1]ȱtheȱState’sȱ treatmentȱ professionalsȱ determineȱ thatȱ suchȱ placementȱ isȱ appropriate,ȱ [2]ȱ theȱ affectedȱ perȬ sonsȱdoȱnotȱopposeȱsuchȱtreatment,ȱandȱ[3]ȱtheȱ placementȱ canȱ beȱ reasonablyȱ accommodated,ȱ takingȱ intoȱ accountȱ theȱ resourcesȱ availableȱ toȱ theȱ Stateȱ andȱ theȱ needsȱ ofȱ othersȱ withȱ mentalȱ disabilities.ȱ
Olmstead,ȱ527ȱU.S.ȱatȱ607.ȱWeȱhaveȱunderstoodȱthisȱtoȱbeȱtheȱ Court’sȱ lastȱ wordȱ onȱ theȱ point.ȱ Seeȱ Omegaȱ Healthcareȱ Inv’rs,ȱ Inc.ȱ v.ȱ ResȬCare,ȱ Inc.,ȱ 475ȱ F.3dȱ 853,ȱ 864ȱ (7thȱ Cir.ȱ 2007)ȱ (notingȱ thatȱ “Olmsteadȱ standsȱ forȱ theȱ propositionȱ thatȱ inȱ orderȱ toȱ avoidȱ violatingȱ theȱ [ADA],ȱ theȱ placementȱ ofȱ individualsȱ inȱ communityȬbasedȱ settingsȱ isȱ appropriate”ȱ whenȱ theȱ testȱ isȱ

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met);ȱRadaszewski,ȱ383ȱF.3dȱatȱ608ȱ(noting,ȱwithoutȱclearlyȱapȬ plyingȱ theȱ test,ȱ thatȱ “theȱ [Olmstead]ȱ Courtȱ agreed”ȱ withȱ theȱ plaintiffs’ȱformulationȱofȱit).ȱ
TheȱfirstȱtwoȱelementsȱofȱtheȱtestȱappearȱinȱSectionȱIII.Aȱofȱ theȱ Olmsteadȱ decision,ȱ whichȱ commandedȱ aȱ majorityȱ ofȱ theȱ Courtȱandȱisȱthusȱbindingȱonȱus.ȱTheȱCourtȱnotedȱthereȱthatȱ (1)ȱ “theȱ Stateȱ mayȱ generallyȱ relyȱ onȱ theȱ reasonableȱ assessȬ mentsȱofȱitsȱownȱprofessionalsȱinȱdeterminingȱwhetherȱanȱinȬ dividualȱ‘meetsȱtheȱessentialȱeligibilityȱrequirements’”ȱofȱtheȱ program,ȱ andȱ (2)ȱ thatȱ thereȱ existsȱ noȱ “federalȱ requirementȱ thatȱcommunityȬbasedȱtreatmentȱbeȱimposedȱonȱpatientsȱwhoȱ doȱnotȱdesireȱit.”ȱOlmstead,ȱ527ȱU.S.ȱatȱ602.ȱ
Olmstead’sȱ articulationȱ ofȱ theȱ thirdȱ elementȱ ofȱ theȱ test,ȱ however,ȱ representsȱ theȱ thinkingȱ ofȱ onlyȱ aȱ pluralityȱ ofȱ theȱ Court.ȱ Thoseȱ Justicesȱ addressedȱ theȱ questionȱ ofȱ theȱ levelȱ atȱ whichȱ theȱ “reasonableȱ modifications”ȱ provisionȱ shouldȱ beȱ evaluated—thatȱis,ȱwhichȱmattersȱshouldȱbeȱconsideredȱinȱdeȬ cidingȱ whetherȱ aȱ requirementȱ toȱ provideȱ integratedȱ careȱ wouldȱ constituteȱ aȱ fundamentalȱ alterationȱ ofȱ theȱ state’sȱ proȬ gram.ȱSeeȱ28ȱC.F.R.ȱ§ȱ35.130(b)(7).ȱItȱisȱclearȱthatȱsomeȱversionȱ ofȱtheȱ“reasonableȱmodifications”ȱprovision—andȱitsȱflipȱside,ȱ theȱ fundamentalȬalterationȱ defense—mustȱ beȱ takenȱ intoȱ acȬ countȱ beforeȱ decidingȱ thatȱ theȱ integrationȱ mandateȱ wasȱ vioȬ lated.ȱ Justiceȱ Stevens,ȱ concurringȱ inȱ theȱ judgment,ȱ thoughtȱ thatȱtheȱfundamentalȬalterationȱdefenseȱrestedȱultimatelyȱonȱ theȱfacts;ȱheȱthusȱsawȱnoȱneedȱtoȱdelveȱintoȱtheȱlimitationsȱonȱ theȱ state’sȱ duty.ȱ Seeȱ Olmstead,ȱ 527ȱ U.S.ȱ atȱ 607–08ȱ (Stevens,ȱ J.,ȱ concurringȱ inȱ partȱ andȱ concurringȱ inȱ theȱ judgment).ȱ Justiceȱ Kennedy,ȱ writingȱ forȱ himselfȱ andȱ Justiceȱ Breyer,ȱ focusedȱ onȱ theȱneedȱforȱcourtsȱtoȱdeferȱtoȱtheȱtreatmentȱdecisionsȱofȱtheȱ treatingȱ physicians,ȱ lestȱ peopleȱ whoȱ needȱ greaterȱ careȱ areȱ

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shovedȱoutȱintoȱtheȱcommunityȱinappropriately.ȱId.ȱatȱ608–615ȱ (Kennedy,ȱJ.,ȱconcurringȱinȱtheȱjudgment).ȱ
Asȱlongȱasȱweȱbearȱinȱmindȱtheȱcautionaryȱremarksȱofȱtheȱ concurringȱJustices,ȱweȱseeȱnothingȱtoȱpreventȱourȱuseȱofȱSecȬ tionȱIII.Bȱofȱtheȱplurality’sȱopinionȱasȱaȱstartingȱpoint.ȱItsȱarticȬ ulationȱ ofȱ theȱ “reasonableȱ modifications”ȱ elementȱ statesȱ aȱ sensibleȱ levelȱ atȱ whichȱ toȱ analyzeȱ theȱ questionȱ whetherȱ reȬ quiringȱintegratedȱservicesȱwouldȱ“fundamentallyȱalter”ȱtheȱ natureȱ ofȱ theȱ programs.ȱ 28ȱ C.F.R.ȱ §ȱ 35.130(b)(7).ȱ Onȱ theȱ oneȱ hand,ȱaȱ“substantial[]ȱincrease”ȱinȱtheȱcostȱofȱaȱfewȱofȱplainȬ tiffs’ȱ servicesȱ shouldȱ notȱ “defeatȱ [a]ȱ Titleȱ IIȱ claim.”ȱ Radaszewski,ȱ383ȱF.3dȱatȱ614.ȱSuchȱaȱholdingȱwouldȱeviscerateȱ theȱintegrationȱmandate.ȱSeeȱid.ȱ(“IfȱeveryȱalterationȱinȱaȱproȬ gramȱorȱserviceȱthatȱrequiredȱtheȱoutlayȱofȱfundsȱwereȱtantaȬ mountȱ toȱ aȱ fundamentalȱ alteration,ȱ theȱ ADA’sȱ integrationȱ mandateȱwouldȱbeȱhollowȱindeed.”ȱ(quotingȱFisher,ȱ335ȱF.3dȱ atȱ1183)).ȱOnȱtheȱotherȱhand,ȱlookingȱonlyȱatȱtheȱcostȱofȱchangȬ ingȱtheȱplaintiffs’ȱcareȱwouldȱbeȱunfairȱtoȱtheȱstateȱandȱfailȱtoȱ giveȱ itȱ theȱ leewayȱ forȱ whichȱ Justicesȱ Kennedyȱ andȱ Breyerȱ called.ȱ“Ifȱtheȱexpenseȱentailedȱinȱplacingȱoneȱorȱtwoȱpeopleȱ inȱ aȱ communityȬbasedȱ treatmentȱ programȱ isȱ properlyȱ measȬ uredȱ forȱ reasonablenessȱ againstȱ theȱ State’sȱ entireȱ mentalȱ healthȱbudget,ȱitȱisȱunlikelyȱthatȱaȱState,ȱrelyingȱonȱtheȱfundaȬ mentalȬalterationȱdefense,ȱcouldȱeverȱprevail.”ȱOlmstead,ȱ527ȱ U.S.ȱatȱ603ȱ(pluralityȱopinion).ȱ
Byȱ specifyingȱ thatȱ bothȱ theȱ “resourcesȱ availableȱ toȱ theȱ State”ȱandȱ“theȱneedsȱofȱothersȱwithȱmentalȱdisabilities”ȱmustȱ beȱtakenȱintoȱaccount,ȱtheȱplurality’sȱtestȱallowsȱforȱaȱsensitiveȱ balanceȱbetweenȱtheȱinterestsȱofȱtheȱstateȱandȱtheȱinterestsȱofȱ theȱdevelopmentallyȱdisabledȱpersons.ȱTheȱtestȱalsoȱpreventsȱ aȱ stateȱ fromȱ describingȱ aȱ programȱ atȱ suchȱ aȱ specificȱ levelȱ ofȱ

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detailȱthatȱliterallyȱanyȱchangeȱwouldȱresultȱinȱaȱ“fundamenȬ tal”ȱ alteration.ȱ Inȱ theȱ end,ȱ theȱ questionȱ underȱ theȱ ADAȱ isȱ aȱ simpleȱone:ȱwhatȱeffectȱwillȱchangingȱtheȱstate’sȱpracticesȱhaveȱ onȱtheȱprovisionȱofȱcareȱtoȱtheȱdevelopmentallyȱdisabled,ȱtakȬ ingȱintoȱaccountȱtheȱresourcesȱavailableȱtoȱ theȱstateȱandȱtheȱ needȱtoȱavoidȱdiscrimination?ȱ
Theȱevaluationȱofȱwhetherȱaȱchangeȱwouldȱfundamentallyȱ alterȱtheȱnatureȱofȱaȱprogramȱshouldȱbeȱholistic.ȱHere,ȱtheȱstateȱ hasȱproducedȱnoȱevidenceȱthatȱanythingȱapproachingȱaȱfunȬ damentalȱ changeȱ wouldȱ occurȱ ifȱ theȱ programsȱ availableȱ toȱ theseȱ plaintiffsȱ wereȱ handledȱ differently.ȱ Weȱ thusȱ doȱ notȱ reȬ gardȱitȱasȱaȱcloseȱcase.ȱ
2ȱ
NeitherȱofȱtheȱfirstȱtwoȱelementsȱofȱtheȱOlmsteadȱtestȱisȱdisȬ putedȱinȱourȱcase.ȱByȱpreviouslyȱallowingȱtheȱplaintiffsȱsignifȬ icantlyȱmoreȱcommunityȱinteraction,ȱtheȱstate’sȱmedicalȱproȬ fessionalsȱhaveȱdemonstratedȱthatȱsuchȱactivityȱisȱbothȱapproȬ priateȱ andȱ possible.ȱ Theȱ plaintiffs’ȱ purposeȱ inȱ thisȱ lawsuitȱ isȱ toȱhaveȱthisȱlevelȱofȱcommunityȬbasedȱserviceȱrestored,ȱunderȱ whateverȱ programȱ umbrellaȱ willȱ accomplishȱ thatȱ end.ȱ Theȱ plaintiffs’ȱevidenceȱshowsȱthatȱatȱpresent,ȱusingȱtheȱFSȱwaiver,ȱ theyȱcanȱarrangeȱforȱnoȱmoreȱthanȱ10ȱtoȱ12ȱhoursȱofȱsuchȱserȬ vicesȱperȱweek.ȱTheȱaffidavitsȱmaintainȱthatȱthisȱamountȱisȱinȬ sufficientȱeitherȱ(1)ȱtoȱallowȱanyȱsignificantȱcommunityȱinterȬ actionȱorȱ(2)ȱtoȱpreventȱgapsȱinȱsupervisionȱthatȱremainedȱunȬ coveredȱ byȱ theirȱ caretakersȱ orȱ priorȬauthorizationȱ services.ȱ Theȱstateȱhasȱofferedȱnothingȱtoȱsupportȱitsȱassumptionȱthatȱ theȱplaintiffsȱactuallyȱspendȱmoreȱtimeȱinȱtheȱcommunityȱthanȱ theirȱ guardiansȱ haveȱ averred.ȱ Plaintiffsȱ haveȱ alsoȱ providedȱ evidenceȱthatȱaȱmoreȱintegratedȱsettingȱisȱpossible:ȱtheirȱaffiȬ davitsȱ stateȱ thatȱ theyȱ wereȱ ableȱ bothȱ toȱ achieveȱ significantlyȱ

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moreȱcommunityȱinteractionȱandȱpreventȱgapsȱinȱsupervisionȱ underȱtheȱA&Dȱwaiver.ȱ
Itȱisȱtheȱstate’sȱburdenȱtoȱproveȱthatȱtheȱproposedȱchangesȱ wouldȱ fundamentallyȱ alterȱ theirȱ programs.ȱ Seeȱ Radaszewski,ȱ 383ȱF.3dȱatȱ611ȱ(citingȱ28ȱC.F.R.ȱ§ȱ35.130(b)(7)).ȱItȱhasȱfailedȱtoȱ carryȱthatȱburdenȱhere.ȱInȱfact,ȱitȱdidȱnotȱevenȱargueȱthatȱtheȱ plaintiffsȱ seekȱ fundamentalȱ alterationȱ ofȱ theirȱ programs.ȱ InȬ stead,ȱitȱcontendedȱthatȱ“itȱisȱnotȱ‘reasonable’ȱtoȱdemandȱthatȱ theȱStateȱalterȱtheȱeligibilityȱrequirementsȱforȱtheȱA&DȱWaiverȱ soȱasȱtoȱpermanentlyȱenshrineȱitsȱerror”ȱinȱplacingȱtheȱplainȬ tiffsȱonȱtheȱwaiverȱinȱtheȱfirstȱplace.ȱ
Thereȱ areȱ severalȱ problemsȱ withȱ thisȱ argument.ȱ Theȱ firstȱ isȱthatȱtheȱplaintiffsȱareȱnotȱaskingȱtoȱbeȱputȱbackȱonȱtheȱA&Dȱ waiver.ȱWhileȱthatȱmayȱbeȱoneȱofȱtheȱoutcomesȱtheyȱwillȱacȬ cept,ȱitȱisȱnotȱtheȱonlyȱone.ȱTheȱsecondȱisȱthatȱtheȱstate’sȱlogicȱ isȱcircular.ȱAfterȱall,ȱtheȱstateȱcreatesȱtheȱwaiverȱprograms,ȱandȱ thereforeȱthoseȱprograms’ȱeligibilityȱcriteria.ȱIfȱtheȱstate’sȱownȱ criteriaȱcouldȱpreventȱtheȱenforcementȱofȱtheȱintegrationȱmanȬ date,ȱtheȱmandateȱwouldȱbeȱmeaningless.ȱTheȱregulationȱadȬ jacentȱ toȱ theȱ “reasonableȱ modifications”ȱ provisionȱ anticiȬ pates—andȱ directlyȱ confronts—thisȱ problem.ȱ Seeȱ 28ȱ C.F.R.ȱ §ȱ35.130(b)(8)ȱ(“AȱpublicȱentityȱshallȱnotȱimposeȱorȱapplyȱeliȬ gibilityȱcriteriaȱthatȱscreenȱoutȱorȱtendȱtoȱscreenȱoutȱanȱindiȬ vidualȱwithȱaȱdisabilityȱorȱanyȱclassȱofȱindividualsȱwithȱdisaȬ bilitiesȱfromȱfullyȱandȱequallyȱenjoyingȱanyȱservice,ȱprogram,ȱ orȱactivity,ȱunlessȱsuchȱcriteriaȱcanȱbeȱshownȱtoȱbeȱnecessaryȱ forȱtheȱprovisionȱofȱtheȱservice,ȱprogram,ȱorȱactivityȱbeingȱofȬ fered.”).ȱ Theȱ stateȱ hasȱ madeȱ noȱ showingȱ thatȱ itsȱ criteriaȱ areȱ “necessaryȱ forȱ theȱ provision”ȱ ofȱ theȱ relevantȱ servicesȱ inȱ thisȱ case.ȱ Itȱ cannotȱ avoidȱ theȱ integrationȱ mandateȱ byȱ bindingȱ itsȱ handsȱinȱitsȱownȱredȱtape.ȱ

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Theȱthirdȱreasonȱtheȱstate’sȱargumentȱcannotȱprevailȱisȱtheȱ mostȱ important:ȱ theȱ evidenceȱ presentedȱ onȱ summaryȱ judgȬ mentȱshowsȱthatȱtheȱplaintiffs’ȱdemandsȱareȱentirelyȱreasonaȬ ble;ȱ theȱstateȱhasȱ providedȱnoȱevidenceȱtoȱ theȱ contrary.ȱ Theȱ plaintiffsȱ doȱ notȱ demandȱ aȱ significantȱ increaseȱ inȱ totalȱ serȬ vices,ȱbutȱratherȱaȱdifferentȱapportionmentȱofȱtheȱtwoȱkindsȱofȱ servicesȱtheyȱalreadyȱreceive.ȱPriorȬauthorizationȱservicesȱdoȱ notȱ allowȱ theȱ plaintiffsȱ toȱ beȱ takenȱ intoȱ theȱ community.ȱ Waiverȱ servicesȱ do.ȱ Allowingȱ theȱ plaintiffsȱ toȱ changeȱ theirȱ “mix”ȱofȱpriorȬauthorizationȱandȱwaiverȱservicesȱwouldȱallowȱ themȱ toȱ participateȱ moreȱ fullyȱ inȱ theȱ community.ȱ Accordingȱ toȱtheirȱaffidavits,ȱaȱrelativelyȱslightȱincreaseȱinȱtotalȱservicesȱ wouldȱpreventȱthemȱfromȱbeingȱunsupervised.ȱTheȱstateȱhasȱ providedȱnoȱevidenceȱthatȱtheȱplaintiffs’ȱdesiredȱdistributionȱ ofȱ servicesȱ wouldȱ significantlyȱ increaseȱ theirȱ cost,ȱ letȱ aloneȱ fundamentallyȱalterȱanyȱprograms.ȱ
Finally,ȱ theȱ stateȱ arguesȱ thatȱ itȱ shouldȱ beȱ excusedȱ fromȱ changingȱitsȱwaiverȱsystemȱbecauseȱitȱhasȱaȱ“comprehensive,ȱ effectivelyȱ workingȱ planȱ forȱ placingȱ qualifiedȱ personsȱ withȱ mentalȱ disabilitiesȱ inȱ lessȱ restrictiveȱ settings,”ȱ andȱ thereforeȱ meetsȱ theȱ reasonableȬmodificationȱ standard.ȱ Olmstead,ȱ 527ȱ U.S.ȱatȱ605.ȱTheȱstateȱisȱreferringȱtoȱtheȱprocessȱitȱisȱusingȱtoȱ moveȱpersonsȱwithȱdisabilitiesȱfromȱtheȱA&DȱwaiverȱtoȱtheȱFSȱ waiver.ȱ Thatȱ isȱ justȱ whatȱ plaintiffsȱ areȱ attacking:ȱ theirȱ eviȬ denceȱshowsȱthatȱthisȱ“plan”ȱisȱundermining,ȱnotȱfurthering,ȱ theȱintegrationȱmandate.ȱInsteadȱofȱmovingȱpeopleȱwithȱdisaȬ bilitiesȱtoȱmoreȱintegratedȱsettings,ȱtheȱstate’sȱplanȱisȱmakingȱ theirȱlivingȱarrangementsȱlessȱintegrated.ȱ
3ȱ
TheȱplaintiffsȱhaveȱprovidedȱevidenceȱthatȱbeforeȱtheȱpolȬ icyȱ change,ȱ theyȱ wereȱ receivingȱ theȱ kindȱ ofȱ servicesȱ theyȱ

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neededȱtoȱpreventȱisolationȱorȱinstitutionalizationȱandȱparticȬ ipateȱ inȱ theȱ communityȱ aroundȱ them.ȱ Theyȱ alsoȱ haveȱ proȬ videdȱevidenceȱthatȱtheȱFSȱwaiverȱservicesȱthatȱtheyȱcurrentlyȱ receiveȱ areȱ insufficientȱ toȱ allowȱ moreȱ thanȱ limitedȱ tripsȱ intoȱ theȱ community.ȱ Theyȱ describeȱ currentȱ orȱ futureȱ gapsȱ inȱ serȬ vicesȱthatȱplausiblyȱputȱthemȱatȱriskȱofȱinstitutionalization.ȱ
Itȱalsoȱappears,ȱhowever,ȱthatȱrecipientsȱofȱFSȱwaiverȱserȬ vicesȱmayȱchooseȱhowȱtoȱspendȱtheirȱallowance.ȱTheȱstateȱarȬ guesȱthatȱtheȱFSȱwaiverȱactuallyȱprovidesȱtheȱplaintiffsȱsuffiȬ cientȱwaiverȱservicesȱtoȱparticipateȱinȱtheȱcommunity,ȱbutȱthatȱ theseȱplaintiffsȱhaveȱusedȱtheȱFSȱresourcesȱinȱaȱwayȱthatȱhasȱ ledȱtoȱtheirȱcurrentȱisolation.ȱInȱsupportȱofȱthisȱcontention,ȱtheȱ stateȱhasȱofferedȱevidenceȱthatȱtheȱplaintiffsȱcouldȱmakeȱdifȬ ferentȱ choicesȱ thatȱ wouldȱ allowȱ themȱ moreȱ servicesȱ inȱ theȱ community.ȱItȱalsoȱofferedȱevidenceȱthatȱtheȱColesȱareȱusingȱaȱ lowerȱdollarȱamountȱofȱservicesȱthanȱtheyȱdidȱunderȱtheȱA&Dȱ waiver,ȱandȱthatȱMaertz’sȱsituationȱhasȱbeenȱinfluencedȱbyȱtheȱ factȱthatȱhisȱsisterȱisȱtheȱpaidȱproviderȱofȱhisȱwaiverȱservices.ȱ Thereȱisȱthereforeȱaȱdisputeȱofȱmaterialȱfactȱasȱtoȱwhetherȱtheȱ state’sȱ2011ȱpolicyȱchangeȱcausedȱtheȱplaintiffs’ȱisolation,ȱandȱ summaryȱ judgmentȱ isȱ inappropriateȱ onȱ thatȱ question.ȱ Seeȱ FED.ȱR.ȱCIV.ȱP.ȱ56(a).ȱ
IIIȱ
Theȱ partyȱ seekingȱ classȱ certificationȱ bearsȱ theȱ burdenȱ ofȱ showing,ȱbyȱaȱpreponderanceȱofȱtheȱevidence,ȱthatȱaȱproposedȱ classȱ meetsȱ theȱ requirementsȱ ofȱ Federalȱ Ruleȱ ofȱ Civilȱ ProceȬ dureȱ 23.ȱ Messnerȱ v.ȱ Northshoreȱ Univ.ȱ HealthSystem,ȱ 669ȱ F.3dȱ 802,ȱ811ȱ(7thȱCir.ȱ2012).ȱTheȱdistrictȱcourt’sȱdecisionȱwhetherȱ toȱcertifyȱaȱclassȱisȱreviewedȱforȱabuseȱofȱdiscretion.ȱMullinsȱv.ȱ DirectȱDigital,ȱLLC,ȱ795ȱF.3dȱ654,ȱ659ȱ(7thȱCir.ȱ2015).ȱTheȱplainȬ tiffsȱproposedȱtheȱfollowingȱclass:ȱ

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Anyȱandȱallȱpersons,ȱcurrentȱandȱfuture,ȱtermiȬ natedȱfromȱtheȱ[A&Dȱwaiver]ȱasȱaȱresultȱofȱtheȱ 2011ȱ Policyȱ Changeȱ whoȱ requireȱ moreȱ servicesȱ eachȱ yearȱ thanȱ areȱ availableȱ throughȱ theȱ [FSȱ waiver]ȱ andȱ whoȱ areȱ notȱ enrolledȱ inȱ theȱ [CIHȱ waiver].ȱ
Theȱ districtȱ courtȱ foundȱ thatȱ theȱ plaintiffsȱ failedȱ allȱ ofȱ Ruleȱ 23’sȱcriteria.ȱWeȱhaveȱseriousȱreservationsȱaboutȱthisȱdecision,ȱ whichȱstrikesȱusȱasȱtooȱsweeping.ȱNonetheless,ȱweȱmayȱaffirmȱ onȱanyȱbasisȱthatȱfairlyȱappearsȱinȱtheȱrecord.ȱEllisȱv.ȱCCAȱofȱ Tennesseeȱ LLC,ȱ 650ȱ F.3dȱ 640,ȱ 647ȱ (7thȱ Cir.ȱ 2011).ȱ Becauseȱ theȱ classȱdefinitionȱwasȱtooȱvague,ȱweȱfindȱthatȱtheȱdistrictȱcourtȱ didȱnotȱabuseȱitsȱdiscretionȱinȱdenyingȱclassȱcertification.ȱ
Theȱvaguenessȱofȱthisȱdefinitionȱarisesȱfromȱtheȱwordȱ“reȬ quire.”ȱ Theȱ questionȱ isȱ inȱ whatȱ waysȱ doȱ theȱ potentialȱ classȱ membersȱ“require”ȱmoreȱservicesȱthanȱavailableȱunderȱtheȱFSȱ waiver?ȱ Areȱ theyȱ medicallyȱ required?ȱ Requiredȱ forȱ regularȱ communityȱinteraction?ȱRequiredȱsoȱasȱnotȱtoȱviolateȱtheȱinȬ tegrationȱ mandate?ȱ (Theȱ lastȱ ofȱ theseȱ definitionsȱ wouldȱ riskȱ makingȱthisȱclassȱanȱimpermissibleȱ“failȬsafe”ȱclass.ȱSeeȱMulȬ lins,ȱ795ȱF.3dȱatȱ660.)ȱTheȱclassȱdefinitionȱdoesȱnotȱsay.ȱ
Avoidingȱ vaguenessȱ isȱ importantȱ “becauseȱ aȱ courtȱ needsȱ toȱbeȱableȱtoȱidentifyȱwhoȱwillȱreceiveȱnotice,ȱwhoȱwillȱshareȱ inȱanyȱrecovery,ȱandȱwhoȱwillȱbeȱboundȱbyȱaȱjudgment.”ȱMulȬ lins,ȱ 795ȱ F.3dȱ atȱ 660.ȱ “Toȱ avoidȱ vagueness,ȱ classȱ definitionsȱ generallyȱneedȱtoȱidentifyȱaȱparticularȱgroup,ȱharmedȱduringȱ aȱparticularȱtimeȱframe,ȱinȱaȱparticularȱlocation,ȱinȱaȱparticularȱ way.”ȱId.ȱTheȱproposedȱdefinitionȱhereȱsufficientlyȱidentifiesȱ theȱtime,ȱlocation,ȱandȱmannerȱofȱharm,ȱbutȱweȱcannotȱsayȱtheȱ sameȱforȱtheȱ“particularȱgroup.”ȱId.ȱWithoutȱknowingȱhowȱtoȱ

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sortȱ betweenȱ thoseȱ whoȱ wereȱ andȱ thoseȱ whoȱ wereȱ notȱ deȬ privedȱofȱservicesȱtoȱwhichȱtheyȱwereȱentitled,ȱweȱwouldȱnotȱ beȱ ableȱ toȱ sayȱ whoȱ shouldȱ receiveȱ notice,ȱ beȱ boundȱ byȱ theȱ judgment,ȱand,ȱifȱtheȱclassȱwereȱtoȱprevailȱonȱtheȱmerits,ȱshareȱ inȱanyȱrecovery.ȱTheȱdistrictȱcourtȱthereforeȱdidȱnotȱabuseȱitsȱ discretionȱinȱdenyingȱclassȱcertification.ȱ
IVȱ
OurȱdecisionȱtodayȱdoesȱnotȱrequireȱtheȱstateȱofȱIndianaȱtoȱ adoptȱ anyȱ particularȱ solutionȱ toȱ makeȱ itsȱ waiverȱ programȱ compliantȱ withȱ theȱ integrationȱ mandate.ȱ Ifȱ plaintiffsȱ prevailȱ onȱtheȱmerits,ȱtheȱdistrictȱcourt,ȱinȱconjunctionȱwithȱtheȱparȬ ties,ȱmayȱexerciseȱitsȱequitableȱpowersȱtoȱcraftȱanȱappropriateȱ injunction.ȱButȱtheȱstateȱcannotȱavoidȱtheȱintegrationȱmandateȱ byȱpaintingȱitselfȱintoȱaȱcornerȱandȱthenȱlamentingȱtheȱview.ȱ Theȱ stateȱ designs,ȱ appliesȱ for,ȱ developsȱ policiesȱ regarding,ȱ andȱexecutesȱitsȱwaiverȱprograms.ȱIfȱthoseȱprogramsȱinȱpracȬ ticeȱallowȱpersonsȱwithȱdisabilitiesȱtoȱleaveȱtheirȱhomesȱonlyȱ 12ȱhoursȱeachȱweek,ȱcoopingȱthemȱupȱtheȱrestȱofȱtheȱtime,ȱorȱ renderȱthemȱatȱseriousȱriskȱofȱinstitutionalization,ȱthenȱthoseȱ programsȱviolateȱtheȱintegrationȱmandateȱunlessȱtheȱstateȱcanȱ showȱthatȱchangingȱthemȱwouldȱrequireȱaȱfundamentalȱalterȬ ationȱofȱitsȱprogramsȱforȱtheȱdisabled.ȱ
Becauseȱtheȱplaintiffs’ȱclaimsȱbothȱfitȱwithinȱand,ȱifȱcausedȱ byȱ theȱ state’sȱ policy,ȱ representȱ violationsȱ ofȱ theȱ integrationȱ mandate,ȱ weȱ REVERSEȱ theȱ judgmentȱ ofȱ theȱ districtȱ courtȱ andȱ REMANDȱforȱfurtherȱproceedingsȱconsistentȱwithȱthisȱopinion.ȱ WeȱAFFIRMȱtheȱdistrictȱcourt’sȱdecisionȱnotȱtoȱcertifyȱtheȱproȬ posedȱclass.ȱCostsȱwillȱbeȱtaxedȱagainstȱtheȱstate.ȱ

 
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CMP,MANDATE,CLOSED
U.S. District Court Southern District of Indiana (Indianapolis) CIVIL DOCKET FOR CASE #: 1:13−cv−00957−JMS−MJD

STEIMEL v. MINOTT et al Assigned to: Judge Jane Magnus−Stinson Referred to: Magistrate Judge Mark J. Dinsmore Related Case: 1:14−cv−00668−JMS−MJD
Case in other court: 7th Circuit, 15−02377 − Mandate Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 06/14/2013 Date Terminated: 12/20/2016 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

KARLA STEIMEL on her own behalf and on behalf of three (3) classes of those similarly situated

represented by Gavin Minor Rose ACLU OF INDIANA 1031 E. Washington Street Indianapolis, IN 46202 317−635−4059 ext.106 Fax: 317−635−4105 Email: grose@aclu−in.org ATTORNEY TO BE NOTICED

V. Defendant DEBRA MINOTT in her official capacity as Secretary of the Indiana Family and Social Services Administration
Defendant NICOLE NORVELL in her official capacity as the Director of the Division of Disability and Rehabilitative Servs. of the Indiana Family and Social Services Administration
Defendant FAITH LAIRD in her official capacity as Director of the Division of Aging of the Indiana Family

represented by Harmony A. Mappes FAEGRE BAKER DANIELS LLP − Indianapolis 300 North Meridian Street Suite 2700 Indianapolis, IN 46204 317−237−0300 Fax: 317−237−1000 Email: harmony.mappes@faegrebd.com ATTORNEY TO BE NOTICED
Ryan Michael Hurley FAEGRE BAKER DANIELS LLP − Indianapolis 300 North Meridian Street Suite 2700 Indianapolis, IN 46204 (317) 237−0300 Fax: (317) 237−1000 Email: ryan.hurley@FaegreBD.com ATTORNEY TO BE NOTICED
represented by Harmony A. Mappes (See above for address) ATTORNEY TO BE NOTICED
Ryan Michael Hurley (See above for address) ATTORNEY TO BE NOTICED
represented by Harmony A. Mappes (See above for address) ATTORNEY TO BE NOTICED

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and Social Services Administration

Ryan Michael Hurley (See above for address) ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff THOMAS MAERTZ
Intervenor Plaintiff COLTON COLE
Intervenor Plaintiff CODY COLE
Intervenor Plaintiff TIMOTHY KEISTER
Interested Party UNITED STATES OF AMERICA

represented by Gavin Minor Rose (See above for address) ATTORNEY TO BE NOTICED
represented by Gavin Minor Rose (See above for address) ATTORNEY TO BE NOTICED
represented by Gavin Minor Rose (See above for address) ATTORNEY TO BE NOTICED
represented by Gavin Minor Rose (See above for address) ATTORNEY TO BE NOTICED
represented by Debra G. Richards UNITED STATES ATTORNEY'S OFFICE 10 West Market Street Suite 2100 Indianapolis, IN 46204 (317)226−6333 Fax: (317)226−5027 Email: debra.richards@usdoj.gov ATTORNEY TO BE NOTICED
Victoria Louise Thomas UNITED STATES DEPARTMENT OF JUSTICE 1425 New York Avenue, NW 4th Floor, Room 4039 Washington, DC 20005 202−616−2925 Fax: 202−514−7821 Email: victoria.thomas2@usdoj.gov ATTORNEY TO BE NOTICED

Date Filed 06/14/2013

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief (Class Action) against All Defendants, filed by All Plaintiffs. (Filing fee $400, receipt number 0756−2711386) (Attachments: # 1 Exhibit 1 (Targeting Letter to CIH Waiver Recipients), # 2 Exhibit 2 (FSSA Webinar), # 3 Exhibit 3 (2011 Policy Change), # 4 Exhibit 4 (2006 Policy Statement), # 5 Exhibit 5 (Eligibility Screen), # 6 Exhibit 6 (K. Steimel Targeting Letter), # 7 Exhibit 7 (K. Steimel Eligibility Screen), # 8 Exhibit 8 (K. Steimel ICF/ID Eligibility), # 9 Civil Cover Sheet, # 10 Proposed Summons)(Rose, Gavin) (Entered: 06/14/2013)

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06/14/2013 06/14/2013 06/14/2013 06/14/2013 06/17/2013 06/17/2013 06/18/2013
06/19/2013 06/19/2013 06/19/2013 06/19/2013 06/19/2013 06/19/2013 06/24/2013 06/24/2013 06/25/2013
06/25/2013
07/05/2013 08/23/2013

2 NOTICE of Appearance by Gavin Minor Rose on behalf of Plaintiff KARLA STEIMEL. (Rose, Gavin) (Entered: 06/14/2013)
3 MOTION to Certify Class , filed by Plaintiff KARLA STEIMEL. (Rose, Gavin) (Entered: 06/14/2013)
4 BRIEF/MEMORANDUM in Support re 3 MOTION to Certify Class , filed by Plaintiff KARLA STEIMEL. (Rose, Gavin) (Entered: 06/14/2013)
5 MOTION for Preliminary Injunction , filed by Plaintiff KARLA STEIMEL. (Rose, Gavin) (Entered: 06/14/2013)
6 Summons Issued as to FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (LBT) (Entered: 06/17/2013)
7 MAGISTRATE JUDGE's NOTICE of Availability to Exercise Jurisdiction issued. (LBT) (Entered: 06/17/2013)
8 SCHEDULING ORDER: Pretrial Conference set for 6/27/2013 at 10:00 AM in room #257, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Magistrate Judge Mark J. Dinsmore. The purpose of the conference is to discuss a schedule regarding the Motion for Preliminary Injunction [Dkt. 5]. Counsel for Plaintiff and Defendants, either in person or by counsel if represented, shall personally appear. Counsel for Plaintiff is to serve this order on Defendants on or before June 21, 2013. Signed by Magistrate Judge Mark J. Dinsmore on 6/18/2013.(NLR) (Entered: 06/18/2013)
9 MOTION for Discovery (Expedited), filed by Plaintiff KARLA STEIMEL. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 06/19/2013)
10 BRIEF/MEMORANDUM in Support re 5 MOTION for Preliminary Injunction , filed by Plaintiff KARLA STEIMEL. (Rose, Gavin) (Entered: 06/19/2013)
11 NOTICE of Compliance with Scheduling Order of June 18, 2013, filed by Plaintiff KARLA STEIMEL (Rose, Gavin) (Entered: 06/19/2013)
12 RETURN of Service by CMRRR, filed by All Plaintiffs. DEBRA MINOTT served on 6/18/2013. (Rose, Gavin) (Entered: 06/19/2013)
13 RETURN of Service by CMRRR, filed by All Plaintiffs. NICOLE NORVELL served on 6/18/2013. (Rose, Gavin) (Entered: 06/19/2013)
14 RETURN of Service by CMRRR, filed by All Plaintiffs. FAITH LAIRD served on 6/18/2013. (Rose, Gavin) (Entered: 06/19/2013)
15 NOTICE of Appearance by Harmony A. Mappes on behalf of Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Mappes, Harmony) (Entered: 06/24/2013)
16 NOTICE of Appearance by Ryan Michael Hurley on behalf of Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Hurley, Ryan) (Entered: 06/24/2013)
17 Joint MOTION to Stay Proceedings Temporarily and to Vacate or Continue Pretrial Conference, filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL, Plaintiff KARLA STEIMEL. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 06/25/2013)
18 ORDER granting 17 Motion to Stay proceedings to and including 8/26/2013 and that parties shall file a Status Report on or before that date concerning which further steps, if any, they believe necessary in this case. The PTC currently scheduled for 6/27/2013 is hereby vacated. Signed by Judge Jane Magnus−Stinson on 6/25/2013.(CBU) (Entered: 06/25/2013)
19 MARGINAL ENTRY denying w/o prejudice Pltf's 9 Motion for Expedited Discovery. Signed by Magistrate Judge Mark J. Dinsmore on 7/5/2013. (SWM) (Entered: 07/05/2013)
20 STATUS REPORT (Joint) by All Parties. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 08/23/2013)

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08/26/2013 08/28/2013
09/20/2013 09/23/2013
09/23/2013 10/17/2013 10/25/2013

21 SCHEDULING ORDER: Status Conference set for 9/19/2013 04:00 PM in Telephonic before Magistrate Judge Mark J. Dinsmore. The purpose of the conference is to discuss case status. Counsel shall attend the conference by calling the designated phone number, to be provided by the Court via email generated by the Court's ECF system. Signed by Magistrate Judge Mark J. Dinsmore on 8/26/2013.(SWM) (Entered: 08/26/2013)
22 ORDER Extending Stay − IT IS HEREBY ORDERED that this cause shall remain stayed for a period of time to and including October 25, 2013, at which time the stay shall expire automatically. IT IS FURTHER ORDERED that the parties shall jointly file a status report on or before October 25, 2013, concerning the status of settlement negotiations in this cause, or at such time as the magistrate judge may order at the upcoming status conference. Signed by Judge Jane Magnus−Stinson on 8/28/2013. (JKS) (Entered: 08/28/2013)
24 MOTION to Withdraw 5 MOTION for Preliminary Injunction , filed by Plaintiff KARLA STEIMEL. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 09/20/2013)
25 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Status Conference held on 9/19/2013. The parties report they are continuing to discuss a possible resolution of this matter. They further report that Plaintiff will be filing a motion to withdraw the pending motion for preliminary injunction. Initial Pretrial Conference set for 10/24/2013 at 03:20 PM in room #257, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Magistrate Judge Mark J. Dinsmore. ***SEE ORDER FOR ADDITIONAL INFORMATION***. Signed by Magistrate Judge Mark J. Dinsmore. (NLR) (Entered: 09/23/2013)
26 ORDER withdrawing 5 Motion for Preliminary Injunction and granting 24 Motion to Withdraw motion for prel injunction. Signed by Magistrate Judge Mark J. Dinsmore on 9/23/2013. (CBU) (Entered: 09/23/2013)
27 CASE MANAGEMENT PLAN TENDERED, filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL, Plaintiff KARLA STEIMEL . (Rose, Gavin) (Entered: 10/17/2013)
28 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Initial Pretrial Conference held on 10/24/2013. The parties appeared by counsel for an Initial Pretrial Conference. The Court will approve the Case Management Plan, by separate order, with the changes to which the parties have agreed.Defendant contends this matter should be dismissed and discovery herein stayed pending a ruling on Defendant's motion to dismiss. However, the pendency of Plaintiff's Motion for Class Certification [Dkt. 3] will not allow the Court to accommodate that request. Accordingly, the Court orders as follows: 1.Defendant shall respond to Plaintiff's Complaint (the Court anticipates a motion to dismiss will be filed) on or before November 1, 2013. Plaintiff shall respond to such motion on or before November 8, 2013 and Defendant shall file any reply in support of the motion on or before November 14, 2013. 2. Any prior stays of this matter are lifted and discovery in this matter shall proceed forthwith. To facilitate the discovery process, any responses to interrogatories, requests for production and/or requests for admission under Rules 33, 34 and/or 36 shall be served within 25 days after the request is served (the Court anticipates that the 3 additional days provided by Rule 6(d) will still apply when appropriate). Any written discovery and any responses thereto shall be served by either hand delivery or electronic mail with telephonic confirmation of receipt. Any voluminous documents produced that are not susceptible to transmission by electronic mail shall be produced by hand delivery or via an overnight delivery service. In the event either party files a motion to stay discovery, discovery shall not be stayed and shall proceed pursuant to this order until an order on such motion is issued. Likewise, no discovery deadlines stall be extended unless an order to that effect has been sought and obtained prior to the expiration of the deadline. 3. Plaintiff shall file a supplemental brief in support of her Motion for Class Certification [Dkt. 3] on or before January 24, 2014. Defendant shall respond to that motion on or before February 11, 2014 and Plaintiff shall file any reply in support of the motion on or before February 18,2014. 4.The requirement in Dkt. No. 22 for the parties to file a status report on or before October 25, 2013 is hereby VACATED. Status Conference set for 11/27/2013 at 11:30 AM in Telephonic before Magistrate Judge Mark J. Dinsmore.

Case: 1:13-cv-957 As of: 03/17/2018 03:43 PM EDT 5 of 18

10/25/2013 11/01/2013 11/01/2013 11/01/2013 11/01/2013 11/05/2013
11/08/2013 11/08/2013
11/14/2013 11/14/2013 11/14/2013 11/26/2013 11/27/2013 11/27/2013

***See Order For Additional Information***. Signed by Magistrate Judge Mark J. Dinsmore. (NLR) (Entered: 10/25/2013)
29 ORDER: CASE MANAGEMENT PLAN APPROVED AS AMENDED − Discovery due by 8/8/2014. Dispositive Motions due by 9/5/2014. *SEE ORDER*. Signed by Magistrate Judge Mark J. Dinsmore on 10/25/2013.(JD) (Entered: 10/25/2013)
30 MOTION to Dismiss for Lack of Jurisdiction − Subject Matter, filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Attachments: # 1 Affidavit Luchauer Declaration, # 2 Exhibit 1 − Case Notes Excerpt)(Mappes, Harmony) (Entered: 11/01/2013)
31 BRIEF/MEMORANDUM in Support re 30 MOTION to Dismiss for Lack of Jurisdiction − Subject Matter , filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Attachments: # 1 Luchauer Declaration, # 2 Exhibit A − Case Notes Excerpt)(Mappes, Harmony) (Entered: 11/01/2013)
32 MOTION to Stay Discovery, filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Mappes, Harmony) (Entered: 11/01/2013)
33 BRIEF/MEMORANDUM in Support re 32 MOTION to Stay Discovery , filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Attachments: # 1 Exhibit A − Requests for Production, # 2 Exhibit B − Interrogatories, # 3 Exhibit C − Waschevski Declaration)(Mappes, Harmony) (Entered: 11/01/2013)
34 SCHEDULING ORDER: This cause comes before the court on Defendants' Motion to Stay Discovery [Dkt. 32]. Plaintiff's brief in response to said motion shall be filed by no later than November 8, 2013. Defendants' brief in reply to said motion shall be filed by nolater than November 14, 2013. Signed by Magistrate Judge Mark J. Dinsmore on 11/5/2013.(CKM) (Entered: 11/05/2013)
35 MOTION for Extension of Time to 1/24/2014 to file response to 30 MOTION to Dismiss for Lack of Jurisdiction − Subject Matter (Conditional Motion), filed by Plaintiff KARLA STEIMEL. (Attachments: # 1 Affidavit of Counsel)(Rose, Gavin) (Entered: 11/08/2013)
36 RESPONSE in Opposition re 30 MOTION to Dismiss for Lack of Jurisdiction − Subject Matter, 32 MOTION to Stay Discovery, 35 MOTION for Extension of Time to 1/24/2014 to file response to 30 MOTION to Dismiss for Lack of Jurisdiction − Subject Matter (Conditional Motion) (Response in Opposition to ECF Nos. 30 & 32; Memo. in Support of ECF No. 35), filed by Plaintiff KARLA STEIMEL. (Attachments: # 1 Exhibit 1 (Aff. of Karla Steimel), # 2 Exhibit 2 (CIH Waiver Document))(Rose, Gavin) (Entered: 11/08/2013)
37 REPLY in Support of Motion re 30 MOTION to Dismiss for Lack of Jurisdiction − Subject Matter , filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Mappes, Harmony) (Entered: 11/14/2013)
38 REPLY in Support of Motion re 32 MOTION to Stay Discovery , filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Mappes, Harmony) (Entered: 11/14/2013)
39 RESPONSE in Opposition re 35 MOTION for Extension of Time to 1/24/2014 to file response to 30 MOTION to Dismiss for Lack of Jurisdiction − Subject Matter (Conditional Motion) , filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Mappes, Harmony) (Entered: 11/14/2013)
41 WITHDRAWN PER DKT. 43 STIPULATION of Protective Order Governing Confidential Health Information, filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL, Plaintiff KARLA STEIMEL. (Mappes, Harmony) Modified on 11/27/2013 (NLR). (Entered: 11/26/2013)
42 MOTION for Protective Order Governing Confidential Health Information, filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Attachments: # 1 Text of Proposed Order)(Mappes, Harmony) (Entered: 11/27/2013)
43 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Status Conference held on 11/27/2013. The parties reported on the status of discovery

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11/27/2013 12/12/2013 12/18/2013 12/19/2013 12/20/2013
12/23/2013
01/02/2014
01/10/2014 01/14/2014 01/14/2014 01/14/2014

and are working through some issues relating to production of certain information. The parties further discussed their stipulated protective order [Dkt. 41] and have agreed to withdraw it. Accordingly, the Clerk is directed to show Dkt. 41 as withdrawn. Status Conference set for 12/13/2013 at 04:00 PM in Telephonic before Magistrate Judge Mark J. Dinsmore. ****See Order For Addtional Information***. Signed by Magistrate Judge Mark J. Dinsmore. (NLR) (Entered: 11/27/2013)
44 ORDER granting 42 Motion for Protective Order. Signed by Magistrate Judge Mark J. Dinsmore on 11/27/2013. (CBU) (Entered: 11/27/2013)
46 MOTION to Supplement Record Concerning Motion to Dismiss, filed by Plaintiff KARLA STEIMEL. (Attachments: # 1 Exhibit Steimel Case Note (6/6/2013), # 2 Text of Proposed Order)(Rose, Gavin) (Entered: 12/12/2013)
47 RESPONSE in Opposition re 46 MOTION to Supplement Record Concerning Motion to Dismiss , filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Mappes, Harmony) (Entered: 12/18/2013)
48 REPLY in Support of Motion re 46 MOTION to Supplement Record Concerning Motion to Dismiss , filed by Plaintiff KARLA STEIMEL. (Rose, Gavin) (Entered: 12/19/2013)
49 ORDER: GRANTED 46 Motion to Supplement Record Concerning Motion to Dismiss. IT IS THEREFORE ORDERED that the plaintiffs are granted leave to supplement the record concerning the defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction, and that the "case note" attached to the plaintiffs' Motion is hereby admitted into the record and shall be considered in resolving the motion to dismiss. The Court now considers the Defendants previously filed Motion to Dismiss [dkt. 30] fully briefed. Signed by Judge Jane Magnus−Stinson on 12/20/2013. (DW) (Entered: 12/20/2013)
50 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Status Conference held on 12/13/2013. The parties reported on the status of discovery. A discussion was further held regarding Plaintiff's Motion to Supplement the Record [Dkt. 46]. After the call counsel for Defendant contacted the Court and reported they would not be objecting to Dkt. 46, but would file a response to Plaintiff's supplemental information, which response was filed at Dkt. 47. Plaintiff'sreply in support of her supplemental information was filed at Dkt. 48. Status Conference set for 12/30/2013 at 10:40 AM in Telephonic before Magistrate Judge Mark J. Dinsmore. ***See Order For Additional Information***. Signed by Magistrate Judge Mark J. Dinsmore. (NLR) (Entered: 12/23/2013)
52 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Status Conference held on 12/30/2013. The parties discussed the status of discovery and the deadline for Plaintiff to file her amended brief in support of class certification, which she intends to meet. Status Conference set for 2/18/2014 at 03:00 PM in Telephonic before Magistrate Judge Mark J. Dinsmore. ***See Order For Additional Information***. Signed by Magistrate Judge Mark J. Dinsmore. (NLR) (Entered: 01/02/2014)
53 NOTICE of Service of Initial Disclosures , filed by Plaintiff KARLA STEIMEL. (Rose, Gavin) (Entered: 01/10/2014)
54 MOTION for Continuance of Pretrial Conference Scheduled for February 18, 2014, filed by Plaintiff KARLA STEIMEL. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 01/14/2014)
55 Unopposed MOTION for Extension of Time to 01/24/2014 to File Preliminary Witness and Exhibit Lists, filed by Plaintiff KARLA STEIMEL. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 01/14/2014)
56 ORDER granting 54 Motion for Continuance − The telephonic pretrial conference currently scheduled for 3:00 p.m. on February 18, 2014, is hereby continued to 3:00 p.m. on February 24, 2014. All other requirements of the Court's order dated 12/23/13 [Dkt. 50 ] remain in full force and effect. Signed by Magistrate Judge Mark J. Dinsmore on 1/14/2014.(JD) (Entered: 01/15/2014)

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01/15/2014 01/24/2014
01/24/2014
01/24/2014 01/24/2014 01/24/2014 01/24/2014 01/24/2014 01/24/2014

57 ORDER − granting 55 Motion for Extension of Time to File to and including January 24, 2014, within which to file their preliminary witness and exhibit lists in this cause. Signed by Magistrate Judge Mark J. Dinsmore on 1/15/2014. (CKM) (Entered: 01/15/2014)
58 Designation of Evidence re 3 MOTION to Certify Class , filed by Plaintiff KARLA STEIMEL. (Attachments: # 1 Exhibit 1 (Dep. of Vickie Trout), # 2 Exhibit 2 (Dep. of Debbie Pierson), # 3 Exhibit 3 (Dep. of Karen Smith−Filler), # 4 Exhibit 4 (Dep. of Matt Rodway), # 5 Exhibit 5 (Selected Dep. Exhs.) (1 of 5), # 6 Exhibit 5 (2 of 5), # 7 Exhibit 5 (3 of 5), # 8 Exhibit 5 (4 of 5), # 9 Exhibit 5 (5 of 5), # 10 Exhibit 6 (Interr. Responses), # 11 Exhibit 7 (Case Files − Terminated from A&D) (Filed Under Seal), # 12 Exhibit 8 (Case Files − Enrolled in A&D) (Filed Under Seal), # 13 Exhibit 9 (Case Files − Enrolled in CIH) (Filed Under Seal), # 14 Exhibit 10 (Aff. of Karla Steimel), # 15 Exhibit 11 (Aff. of Tamara Awald), # 16 Exhibit 12 (Aff. of Francesca Kemp), # 17 Exhibit 13 (Aff. of Lori Coldiron), # 18 Exhibit 14 (Aff. of Arlene Beckem−Reid), # 19 Exhibit 15 (Aff. of Rebecca Whaley), # 20 Exhibit 16 (Aff. of Angela Thompson), # 21 Exhibit 17 (Aff. of Sheila Walters), # 22 Exhibit 18 (Demonstr. Exh. 1 − Cross−Referencing of Clients) (Filed Under Seal), # 23 Exhibit 19 (Demonstr. Exh. 2 − Terminated from A&D Waiver) (Filed Under Seal), # 24 Exhibit 20 (Demonstr. Exh. 3 − Enrolled in A&D Waiver) (Filed Under Seal))(Rose, Gavin) (Entered: 01/24/2014)
59 SEALED Evidentiary Materials, re 58 Designation of Evidence re 3 Motion to Certify Class, filed by Plaintiff KARLA STEIMEL. (Attachments: # 1 Exhibit 5 (Selected Dep. Exhs.) (1 of 2), # 2 Exhibit 5 (2 of 2), # 3 Exhibit 7 (Case Files − Terminated from A&D) (1 of 19), # 4 Exhibit 7 (2 of 19), # 5 Exhibit 7 (3 of 19), # 6 Exhibit 7 (4 of 19), # 7 Exhibit 7 (5 of 19), # 8 Exhibit 7 (6 of 19), # 9 Exhibit 7 (7 of 19), # 10 Exhibit 7 (8 of 19), # 11 Exhibit 7 (9 of 19), # 12 Exhibit 7 (10 of 19), # 13 Exhibit 7 (11 of 19), # 14 Exhibit 7 (12 of 19), # 15 Exhibit 7 (13 of 19), # 16 Exhibit 7 (14 of 19), # 17 Exhibit 7 (15 of 19), # 18 Exhibit 7 (16 of 19), # 19 Exhibit 7 (17 of 19), # 20 Exhibit 7 (18 of 19), # 21 Exhibit 7 (19 of 19), # 22 Exhibit 8 (Case Files − Enrolled in A&D) (1 of 12), # 23 Exhibit 8 (2 of 12), # 24 Exhibit 8 (3 of 12), # 25 Exhibit 8 (4 of 12), # 26 Exhibit 8 (5 of 12), # 27 Exhibit 8 (6 of 12), # 28 Exhibit 8 (7 of 12), # 29 Exhibit 8 (8 of 12), # 30 Exhibit 8 (9 of 12), # 31 Exhibit 8 (10 of 12), # 32 Exhibit 8 (11 of 12), # 33 Exhibit 8 (12 of 12), # 34 Exhibit 9 (Case Files − Enrolled in CIH) (1 of 4), # 35 Exhibit 9 (2 of 4), # 36 Exhibit 9 (3 of 4), # 37 Exhibit 9 (4 of 4), # 38 Exhibit 18 (Demonstr. Exh. 1 − Cross−Referencing of Clients), # 39 Exhibit 19 (Demonstr. Exh. 2 − Terminated from A&D Waiver), # 40 Exhibit 20 (Demonstr. Exh. 3 − Enrolled in A&D Waiver))(Rose, Gavin) Modified on 1/24/2014 (JKS). (Entered: 01/24/2014)
60 MOTION to Amend/Correct Definition of Proposed Class, filed by Plaintiff KARLA STEIMEL. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 01/24/2014)
61 Unopposed MOTION for Extension of Time to January 31, 2014 to File Preliminary Witness and Exhibit Lists, filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Attachments: # 1 Text of Proposed Order)(Mappes, Harmony) (Entered: 01/24/2014)
62 ***STRICKEN PER 71 ORDER*** BRIEF/MEMORANDUM in Support re 3 MOTION to Certify Class (Supplemental Memorandum) (Redacted Version), filed by Plaintiff KARLA STEIMEL. (Rose, Gavin) Modified on 1/30/2014 (DW). (Entered: 01/24/2014)
63 ***STRICKEN PER 71 ORDER*** SEALED (Supplemental Class Memorandum) (Unredacted), re 62 Brief/Memorandum in Support of Motion, filed by Plaintiff KARLA STEIMEL. (Rose, Gavin) Modified on 1/30/2014 (DW). (Entered: 01/24/2014)
64 ***STRICKEN PER 71 ORDER*** NOTICE of Tender of Supplemental Response in Opposition to Motion to Dismiss, filed by Plaintiff KARLA STEIMEL, re 30 MOTION to Dismiss for Lack of Jurisdiction − Subject Matter. (Attachments: # 1 Exhibit (Supplemental Memorandum in Opposition to Motion to Dismiss)) (Rose, Gavin) Modified on 1/30/2014 (DW). (Entered: 01/24/2014)
65 ***STRICKEN PER 71 ORDER*** SEALED Notice of Tender of Supplemental Response in Opposition to Motion to Dismiss, re 64 Notice (Other), filed by Plaintiff

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01/24/2014 01/27/2014 01/27/2014 01/28/2014 01/29/2014
01/31/2014 01/31/2014
02/03/2014 02/03/2014

KARLA STEIMEL. (Attachments: # 1 Exhibit (Supplemental Memorandum in Opposition to Motion to Dismiss))(Rose, Gavin) Modified on 1/30/2014 (DW). (Entered: 01/24/2014)
66 Witness List (Preliminary), filed by Plaintiff KARLA STEIMEL, Exhibit List (Preliminary), filed by Plaintiff KARLA STEIMEL. (Rose, Gavin) (Entered: 01/24/2014)
67 ORDER granting 61 Defendant's Motion for Extension of Time to File to 01/31/2014 to file preliminary witness and exhibit lists. Signed by Judge Jane Magnus−Stinson on 1/27/2014. (MRI) (Entered: 01/27/2014)
68 SCHEDULING ORDER − This matter is set for a telephone status conference on Thursday, January 30, 2014 at 11:20 a.m. Counsel shall attend the conference by calling the designated phone number, to be provided by the Court via email generated by the Court's ECF system. Signed by Magistrate Judge Mark J. Dinsmore on 1/27/2014. (JD) (Entered: 01/27/2014)
70 SCHEDULING ORDER: This cause is set for a Hearing on Defendants Debra Minott, Nicole Norvell, and Faith Laird's Motion To Dismiss For Lack of Subject Matter Jurisdiction [dkt. 30] for 2/11/2014 02:00 PM in room #307, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Jane Magnus−Stinson. Counsel shall have 20 minutes per side. Signed by Judge Jane Magnus−Stinson on 1/28/2014.(MRI) (Entered: 01/28/2014)
71 ORDER: Accordingly, for the reasons detailed herein, the Court STRIKES Plaintiffs' supplemental brief in support of their Motion to Certify Class, [dkts. 62; 63], and Plaintiffs' supplemental response brief in opposition to Defendants' Motion to Dismiss, [dkts. 64; 65], and ORDERS Plaintiffs to file an amended supplemental brief in support of their Motion to Certify and an amended supplemental brief in opposition to Defendants' Motion to Dismiss by February 3, 2014. The Court will not require Plaintiffs to refile the exhibits already on file; however, these amended briefs must use the citation format detailed above to facilitate the Court's use of its new hyperlink program. Plaintiffs should not substantively amend their brief other than to add citations in accordance with this Order. Similarly, in the responsive briefing by Defendants they, too, should provide both proper labeling of exhibits and citations in the format detailed above. In order to cite in this manner, the exhibits will have to be filed in advance of the brief so that docket citation will be available. As is the case for Plaintiffs, Defendants must also email a Microsoft Word version of their filings to the chambers' email account: judge_stinson_chambers@insd.uscourts.gov ***SEE ORDER FOR ADDITIONAL INFORMATION***. Signed by Judge Jane Magnus−Stinson on 1/29/2014.(DW) (Entered: 01/30/2014)
72 Witness List − Preliminary, filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL, Exhibit List − Preliminary, filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Mappes, Harmony) (Entered: 01/31/2014)
73 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Status Conference held on 1/30/2014. A discussion was held regarding the pending motion to dismiss and naming of a co−class representative. A discussion was further held regarding the Court's order dated 1/29/2014 [Dkt. 71]. To clarify the order, on or before February 6, 2014 Defendant shallfile any reply to Plaintiff's Supplemental Brief which was filedon 1/24/14 and ordered to be amended and re−refiled on or before2/3/14. The telephonic status conference scheduled for February 24,2014 at 3:00 p.m. is hereby VACATED and rescheduled for 4/2/2014 at 04:00 PM in Telephonic before Magistrate Judge Mark J. Dinsmore. ***See Order For Additional Information*** Signed by Magistrate Judge Mark J. Dinsmore. (NLR) (Entered: 01/31/2014)
74 BRIEF/MEMORANDUM in Support re 3 MOTION to Certify Class (Amended Supplemental Memorandum), filed by Plaintiff KARLA STEIMEL. (Rose, Gavin) (Entered: 02/03/2014)
75 SEALED Amended Supplemental Memorandum (Unredacted), re 74 Brief/Memorandum in Support of Motion, filed by Plaintiff KARLA STEIMEL. (Rose, Gavin) (Entered: 02/03/2014)

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02/03/2014 02/03/2014 02/06/2014
02/06/2014 02/06/2014 02/06/2014 02/07/2014 02/07/2014 02/07/2014 02/07/2014
02/07/2014 02/07/2014
02/10/2014 02/10/2014

76 NOTICE of Tender of Amended Supplemental Resposne in Opposition to Motion to Dismiss, filed by Plaintiff KARLA STEIMEL, re 30 MOTION to Dismiss for Lack of Jurisdiction − Subject Matter. (Attachments: # 1 Exhibit (Amended Supplemental Memorandum in Opp. to Mot. to Dismiss)) (Rose, Gavin) (Entered: 02/03/2014)
77 SEALED Notice of Tender of Amended Supplemental Rresponse in Opposition to Motion to Dismiss, re 76 Notice (Other), filed by Plaintiff KARLA STEIMEL. (Attachments: # 1 Exhibit (Amended Supplemental Memorandum in Opp. to Mot. to Dismiss))(Rose, Gavin) (Entered: 02/03/2014)
78 Appendix of Exhibits in Support of Reply in Support of Motion re 30 MOTION to Dismiss for Lack of Jurisdiction − Subject Matter , filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Attachments: # 1 Exhibit Declaration of Lynn Jump, # 2 Exhibit Declaration of Matt Rodway, # 3 Exhibit A − Steimel CIH Application, # 4 Exhibit B − Redacted CIH Summaries)(Mappes, Harmony) (Entered: 02/06/2014)
79 **SEALED PER DKT. NO. 87 ** SEALED Cover Sheet, filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Attachments: # 1 Exhibit B Sealed − Unredacted CIH Summaries)(Mappes, Harmony) Modified on 2/10/2014 (JD). (Entered: 02/06/2014)
80 MOTION to Seal Document 79 SEALED Document Exhibit B, filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Attachments: # 1 Text of Proposed Order)(Mappes, Harmony) (Entered: 02/06/2014)
81 REPLY in Support of Motion re 30 MOTION to Dismiss for Lack of Jurisdiction − Subject Matter (Supplemental), filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Mappes, Harmony) (Entered: 02/06/2014)
82 Notice of *LINK BUILDER VERSION* of Docket # 74 BRIEF/MEMORANDUM in Support re 3 MOTION to Certify Class (Amended Supplemental Memorandum) (JKS) (Entered: 02/07/2014)
83 Notice of *LINK BUILDER VERSION* of Docket #76−1, Attachment # 1 Exhibit −Amended Supplemental Memorandum in Opp. to Mot. to Dismiss. (JKS) (Entered: 02/07/2014)
84 Notice of *LINK BUILDER VERSION* of Docket # 81 REPLY in Support of Motion re 30 MOTION to Dismiss for Lack of Jurisdiction − Subject Matter (Supplemental). (JKS) (Entered: 02/07/2014)
85 MOTION to Seal Document 75 SEALED Document, 77 SEALED Document, 63 SEALED Document, 59 SEALED Document, 65 SEALED Document [Maintain Documents Under Seal], filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Attachments: # 1 Text of Proposed Order)(Mappes, Harmony) (Entered: 02/07/2014)
86 MOTION to Withdraw 32 MOTION to Stay Discovery, 30 MOTION to Dismiss for Lack of Jurisdiction − Subject Matter , filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Attachments: # 1 Text of Proposed Order)(Mappes, Harmony) (Entered: 02/07/2014)
87 ORDER granting 80 Motion to Seal Document − Filing No. 79−1, the unredacted version of Exhibit B filed in support of Defendants' Supplemental Reply in Support of Motion to Dismiss, having been accepted for filing under seal pending resolution of the Motion, shall remain under seal until further Order. Signed by Magistrate Judge Mark J. Dinsmore on 2/7/2014. (JD) (Entered: 02/10/2014)
88 MOTION to Intervene (Permissive) and to Join in Pending Motion for Class Certification, filed by Intervenor Plaintiffs THOMAS MAERTZ, COLTON COLE, CODY COLE, TIMOTHY KEISTER. (Attachments: # 1 Exhibit (Complaint in Intervention))(Rose, Gavin) (Entered: 02/10/2014)
89 BRIEF/MEMORANDUM in Support re 88 MOTION to Intervene (Permissive) and to Join in Pending Motion for Class Certification , filed by Intervenor Plaintiffs CODY COLE, COLTON COLE, TIMOTHY KEISTER, THOMAS MAERTZ. (Rose, Gavin) (Entered: 02/10/2014)

Case: 1:13-cv-957 As of: 03/17/2018 03:43 PM EDT 10 of 18

02/10/2014
02/10/2014 02/10/2014 02/10/2014 02/10/2014 02/19/2014
02/19/2014 02/19/2014 02/19/2014 02/19/2014 02/20/2014 02/20/2014

90 ORDER − The Court GRANTS as unopposed Defendants' Motion to Withdraw. 86 Accordingly, in a separate order the Court will deny as withdrawn Defendants' Motion to Dismiss, 30 , and Motion to Stay Discovery, 32 . The Court VACATES the hearing regarding Defendants' Motion to Dismiss set for February 11, 2014 at 2:00 p.m. The Court GRANTS as unopposed Plaintiff's Motion to Amend/Correct Definition of Proposed Class. 60 The Court GRANTS Defendants' Motion to Seal. 85 Still pending in this case is Plaintiff's Motion to Certify Class, 3 , to which Defendants' response brief is not yet due, and Plaintiffs' recently filed Motion to Intervene and Join in Pending Motion for Class Certification, 88 . Defendants' response brief, is now due by February 19, 2014, must jointly address these motions, and is limited to forty (40) pages. Plaintiffs' reply brief, due by February 26, 2014, must also jointly address these motions and is limited to twenty−five (25) pages. (See Entry.) Signed by Judge Jane Magnus−Stinson on 2/10/2014.(RSF) (Entered: 02/10/2014)
91 MARGINAL ENTRY − Given the Court's granting of Defendants' motion to withdraw, Court DENIES as withdrawn Defendants' Motion to Dismiss, 30 . Signed by Judge Jane Magnus−Stinson on 2/10/2014. (RSF) (Entered: 02/10/2014)
92 MARGINAL ENTRY − Given Defendants' withdrawal of their Motion to Dismiss, the Court DENIES as moot Plaintiffs' Motion 35 for Extension of Time. Signed by Judge Jane Magnus−Stinson on 2/10/2014. (RSF) (Entered: 02/10/2014)
93 MARGINAL ENTRY − Given Defendants' withdrawal of their Motion to Stay, the Court DENIES as withdrawn the Motion 32 toStay Discovery. Signed by Judge Jane Magnus−Stinson on 2/10/2014. (RSF) (Entered: 02/10/2014)
94 NOTICE of Appearance by Gavin Minor Rose on behalf of Intervenor Plaintiffs CODY COLE, COLTON COLE, TIMOTHY KEISTER, THOMAS MAERTZ. (Rose, Gavin) (Entered: 02/10/2014)
95 Appendix of Exhibits in Support of 97 Response in Opposition to Motion re 3 MOTION to Certify Class , 88 MOTION to Intervene (Permissive) and to Join in Pending Motion for Class Certification , filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Attachments: # 1 Affidavit Pierson Declaration, # 2 Affidavit Rodway Declaration)(Mappes, Harmony) Modified on 2/20/2014 (JKS). (Entered: 02/19/2014)
96 SEALED Exhibits, filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Attachments: # 1 Exhibit A − Compilation of Aging Reports, # 2 Exhibit B − DDRS Spreadsheet, # 3 Affidavit Unredacted Pierson Declaration)(Mappes, Harmony) (Entered: 02/19/2014)
97 RESPONSE in Opposition re 3 MOTION to Certify Class , 88 MOTION to Intervene (Permissive) and to Join in Pending Motion for Class Certification , filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Mappes, Harmony) (Entered: 02/19/2014)
98 SEALED RESPONSE re 3 MOTION to Certify Class , 88 MOTION to Intervene (Permissive) and to Join in Pending Motion for Class Certification , filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Attachments: # 1 Exhibit Unredacted Response in Opposition to Plaintiff's Motion for Class Certification)(Mappes, Harmony) (Entered: 02/19/2014)
99 MOTION to Seal Document 98 SEALED Response to Motion, 96 SEALED Document Exhibits, filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Attachments: # 1 Text of Proposed Order)(Mappes, Harmony) (Entered: 02/19/2014)
100 SEALED submission for corrected Certificate of Service, re 96 Exhibits, filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Attachments: # 1 Exhibit A − Compilation of Aging Reports, # 2 Exhibit B − DDRS Spreadsheet, # 3 Affidavit Unredacted Pierson Declaration)(Mappes, Harmony) Modified on 2/20/2014 (JKS). (Entered: 02/20/2014)
101 SEALED submission for corrected Certificate of Service re 98 RESPONSE filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Attachments: # 1 Exhibit Unredacted Response in Opposition to Plaintiff's Motion for Class Certification)(Mappes, Harmony) Modified on 2/20/2014 (JKS). (Entered:

Case: 1:13-cv-957 As of: 03/17/2018 03:43 PM EDT 11 of 18

02/24/2014 02/25/2014 02/26/2014
02/26/2014 02/26/2014 03/03/2014 03/11/2014
03/12/2014 03/12/2014 03/13/2014

02/20/2014)
102 MOTION for Extension of Time to 20 days after Court's ruling on Motion for Class Certification and Motion for Permissive Intervention in which to 1 Complaint Respond to Complaint, filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Attachments: # 1 Text of Proposed Order)(Mappes, Harmony) (Entered: 02/24/2014)
103 ORDER granting Defendants' 102 Motion for Extension of Time to File response to complaint. Defendants' deadline to respond to the Complaint is extended up to and including twenty days after the Court rules on the Motion for Class Certification and Motion for Permissive Intervention. Signed by Judge Jane Magnus−Stinson on 2/25/2014. (SWM) (Entered: 02/25/2014)
104 Appendix of Exhibits in Support of Motion re 88 MOTION to Intervene (Permissive) and to Join in Pending Motion for Class Certification, 3 MOTION to Certify Class (Supplemental), filed by Intervenor Plaintiffs CODY COLE, COLTON COLE, TIMOTHY KEISTER, THOMAS MAERTZ, Plaintiff KARLA STEIMEL. (Attachments: # 1 Exhibit 21 (Supp. Aff. of Karla Steimel), # 2 Exhibit 22 (Aff. of Kristie Wright), # 3 Exhibit 23 (Supp. Aff. of Tamara Awald), # 4 Exhibit Mot. for Class Cert. in McGarry v. Becher, # 5 Exhibit Entry on Class Cert. in Bowman v. IBM)(Rose, Gavin) (Entered: 02/26/2014)
105 REPLY in Support of Motion re 3 MOTION to Certify Class , 88 MOTION to Intervene (Permissive) and to Join in Pending Motion for Class Certification (Redacted − Public Filing), filed by Intervenor Plaintiffs CODY COLE, COLTON COLE, TIMOTHY KEISTER, THOMAS MAERTZ, Plaintiff KARLA STEIMEL. (Rose, Gavin) (Entered: 02/26/2014)
106 SEALED REPLY in support of Motion re 3 MOTION to Certify Class , 88 MOTION to Intervene (Permissive) and to Join in Pending Motion for Class Certification (Unredacted − Under Seal), filed by Intervenor Plaintiffs CODY COLE, COLTON COLE, TIMOTHY KEISTER, THOMAS MAERTZ, Plaintiff KARLA STEIMEL. (Rose, Gavin) (Entered: 02/26/2014)
107 SCHEDULING ORDER: This cause is set for a Hearing on the plaintiff's pending motion for class certification [dkt. 3] on March 10, 2014 at 10:00 a.m. in Room 307, U.S. Courthouse, 46 E. Ohio Street, Indianapolis, Indiana. Counsel shall have 30 minutes per side for argument and to respond to the Court's questions. Signed by Judge Jane Magnus−Stinson on 3/3/2014.(MRI) (Entered: 03/03/2014)
108 MINUTE ORDER for proceedings held before Judge Jane Magnus−Stinson: Oral Argument held on March 10, 2014, the Court held a hearing on two pending motions: (1) Plaintiff Karla Steimel's Motion to Certify Class, [Filing No. 3], and (2) Intervenor Plaintiffs' Motion to Intervene and to Join in Pending Motion for Class Certification, [Filing No. 88]. Plaintiff Ms. Steimel and Intervenor Plaintiffs appeared by counsel Gavin Rose. Defendants appeared by counsel Harmony Mappes and Ryan Hurley, as well as in−house counsel Elizabeth Karlson. The Court Reporter was David Moxley. The parties presented argument and responded to the Court's questions, and the Court took both motions, [Filing No. 3; Filing No. 88], UNDER ADVISEMENT. Signed by Judge Jane Magnus−Stinson. (Court Reporter David Moxley.)(MRI) (Entered: 03/11/2014)
109 ORDER granting 99 Motion to Maintain Documents Under Seal − Filing No. 96−1, Filing No. 96−2, Filing No. 96−3, and Filing No. 98−1, having been accepted for filing under seal pending resolution of the Motion, shall remain under seal until further Order. Signed by Magistrate Judge Mark J. Dinsmore on 3/12/2014. (JD) (Entered: 03/12/2014)
110 MOTION to Seal Document 106 SEALED Reply in support of Motion [Maintain Documents Under Seal], filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Attachments: # 1 Text of Proposed Order)(Mappes, Harmony) (Entered: 03/12/2014)
111 ORDER − granting 110 Motion to Seal Document 106 SEALED Reply in support of Motion. Signed by Magistrate Judge Mark J. Dinsmore on 3/13/2014. (RSF) (Entered: 03/13/2014)

Case: 1:13-cv-957 As of: 03/17/2018 03:43 PM EDT 12 of 18

03/24/2014 03/24/2014
03/28/2014 04/02/2014 04/14/2014 05/05/2014
05/14/2014 05/14/2014 05/14/2014 05/21/2014 06/02/2014 06/03/2014 06/12/2014

112 ORDER: For these reasons, Plaintiffs' Motion for Permissive Intervention and to Join in Pending Motion for Class Certification is GRANTED, [Filing No. 88], and Plaintiffs' Motion to Certify is DENIED, [Filing No. 3] ***SEE ORDER FOR ADDITIONAL INFORMATION***. Signed by Judge Jane Magnus−Stinson on 3/24/2014. (DW) (Entered: 03/24/2014)
113 ORDER: The Court has this day issued its order denying class certification. The Court requests the magistrate to conduct a status conference for the purpose of determining the further development of the case, including specifically discussing with the parties whether the plaintiffs' claims should remain joined, or separated into individual actions and reporting back to the district judge. Signed by Judge Jane Magnus−Stinson on 3/24/2014.(DW) (Entered: 03/24/2014)
115 MOTION for Extension of Time to May 14, 2014 to Respond to Complaints, filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Attachments: # 1 Text of Proposed Order)(Mappes, Harmony) (Entered: 03/28/2014)
116 ORDER granting 115 Defendant's Motion for Extension of Time to respond to the Complaint and the Complaint in Intervention is hereby extended up to and including May 14, 2014. Signed by Magistrate Judge Mark J. Dinsmore on 4/2/2014. (MGG) (Entered: 04/03/2014)
117 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Status Conference held on 4/2/2014. The parties discussed issues relating to the case. Status Conference set for 5/2/2014 at 03:00 PM in Telephonic before Magistrate Judge Mark J. Dinsmore. ***See Order For Additional Information***. Signed by Magistrate Judge Mark J. Dinsmore. (NLR) (Entered: 04/14/2014)
119 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Status Conference held on 5/2/2014. The parties reported on the status of waivers requested by the intervening Plaintiffs. The parties further discussed issues relating to joinder or separation of the various Plaintiffs' claims. Status Conference set for 6/11/2014 at 08:40 AM in Telephonic before Magistrate Judge Mark J. Dinsmore. *See Order for Additonal Information*. Signed by Magistrate Judge Mark J. Dinsmore. (NLR) (Entered: 05/05/2014)
120 MOTION to Dismiss for Lack of Jurisdiction (Subject Matter) Plaintiff Steimel, filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Mappes, Harmony) (Entered: 05/14/2014)
121 BRIEF/MEMORANDUM in Support re 120 MOTION to Dismiss for Lack of Jurisdiction (Subject Matter) Plaintiff Steimel , filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Mappes, Harmony) (Entered: 05/14/2014)
122 ANSWER to Complaint and Affirmative Defenses to [88−1] Class Action Complaint in Intervention for Declaratory and Injunctive Relief, filed by All Defendants.(Mappes, Harmony) (Entered: 05/14/2014)
123 RESPONSE to Motion re 120 MOTION to Dismiss for Lack of Jurisdiction (Subject Matter) Plaintiff Steimel , filed by Plaintiff KARLA STEIMEL. (Rose, Gavin) (Entered: 05/21/2014)
124 MOTION for Extension of Time to July 2, 2014 in which to 29 Order: Case ManagementSet Deadlines (Re: Expert Disclosure Deadline), filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Attachments: # 1 Text of Proposed Order)(Mappes, Harmony) (Entered: 06/02/2014)
125 ORDER − granting 124 Motion for Extension of Time to File, disclosure deadline is extended up to and including July 2, 2014. Signed by Magistrate Judge Mark J. Dinsmore on 6/3/2014. (CKM) (Entered: 06/03/2014)
127 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Status Conference held on 6/11/2014./ The parties discussed the status of waivers and the related case 1:14−cv−0668−JMS−MJD. The parties' approved Case Management Plan [Dkt. 29] will be amended as follows: Discovery due by 11/7/2014. Dispositive Motions due by 12/5/2014. See Entry for other established deadlines and information. Status Conference set for 7/15/2014 at 03:20 PM in Telephonic before Magistrate Judge Mark J. Dinsmore.). Signed by Magistrate Judge Mark J. Dinsmore. (NLR)

Case: 1:13-cv-957 As of: 03/17/2018 03:43 PM EDT 13 of 18

06/26/2014 07/18/2014 08/04/2014 08/04/2014 09/03/2014 09/22/2014
10/06/2014 10/06/2014
10/06/2014 11/20/2014

(Entered: 06/12/2014)
128 ORDER granting 120 Defendants' Motion to Dismiss Ms. Steimel's claims. No partial final judgment shall issue at this time. ***SEE ORDER***. Signed by Judge Jane Magnus−Stinson on 6/26/2014. (JKS) (Entered: 06/26/2014)
130 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Status Conference held on 7/15/2014. Plaintiff reported on the status of Plaintiffs' waiver applications. A discussion was further held regarding discovery and consolidation issues. Status Conference set for 8/29/2014 at 03:00 PM in Telephonic before Magistrate Judge Mark J. Dinsmore. *See Order For Additional Information*. Signed by Magistrate Judge Mark J. Dinsmore. (NLR) (Entered: 07/18/2014)
131 SCHEDULING ORDER: Bench Trial set for 8/4/2015 09:00 AM in room #307, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Jane Magnus−Stinson. Final Pretrial Conference set for 7/10/2015 09:00 AM in room #307, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Jane Magnus−Stinson. Signed by Judge Jane Magnus−Stinson on 8/4/2014.(SWM) (Entered: 08/04/2014)
132 PRACTICES & PROCEDURES before Judge Jane Magnus−Stinson. (SWM) (Entered: 08/04/2014)
134 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Status Conference held on 8/29/2014. Plaintiff reported on the status of Mr. Keister's waiver application and discovery was discussed. Status Conference set for 10/6/2014 at 09:40 AM in Telephonic before Magistrate Judge Mark J. Dinsmore. *See Order For Additional Information*. Signed by Magistrate Judge Mark J. Dinsmore. (NLR) (Entered: 09/03/2014)
135 ORDER: On December 10, 2013, this Court revised its Uniform Case Management Plan for Civil Cases to include Section II.D, which provides as follows: Within 14 days after the non−expert discovery deadline, and consistent with the certification provisions of Fed. R. Civ. Proc. 11(b) the party with the burden of proof shall file a statement of the claims or defenses it intends to prove at trial, stating specifically the legal theories upon which the claims or defenses are based. See Southern District of Indiana website. If the Case Management Plan in the above−captioned case does not include Section II.D as quoted above, the Court AMENDS the parties' Case Management Plan to include Section II.D and the parties shall file the appropriate statement. If the Case Management Plan in the above−captioned case already includes Section II.D as quoted above, the Court REMINDS the parties of their obligation to file the appropriate statement. Signed by Judge Jane Magnus−Stinson on 9/22/2014. (MAC) (Entered: 09/22/2014)
137 Witness List (Final), filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL, Exhibit List (Final), filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Hurley, Ryan) (Entered: 10/06/2014)
138 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Status Conference held on 10/6/2014. Plaintiff reported that Mr. Keister will file a new waiver application through counsel. The parties further discussed teh status of discovery. Settlement Conference set for 11/19/2014 at 09:00 AM in room #257, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Magistrate Judge Mark J. Dinsmore. *See order for additional information and deadlines*. Signed by Magistrate Judge Mark J. Dinsmore. (NLR) (Entered: 10/06/2014)
139 Witness List (Final), filed by Intervenor Plaintiffs CODY COLE, COLTON COLE, TIMOTHY KEISTER, THOMAS MAERTZ, Exhibit List (Final), filed by Intervenor Plaintiffs CODY COLE, COLTON COLE, TIMOTHY KEISTER, THOMAS MAERTZ. (Rose, Gavin) (Entered: 10/06/2014)
140 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Settlement Conference held on 11/19/2014. A settlement was not achieved.Subsequent to the settlement conference, the Court conferred with counsel for the parties regarding the upcoming dispositive motions deadline and, with the agreement of the parties, hereby amends Section IV of the approved Case Management Plan as amended [Dkts. 29 & 127] as follows:On or before December 3, 2014, and consistent with the

Case: 1:13-cv-957 As of: 03/17/2018 03:43 PM EDT 14 of 18

12/02/2014 12/03/2014 12/17/2014
12/17/2014 01/17/2015
01/17/2015 02/20/2015 02/20/2015
02/25/2015 02/26/2015 03/27/2015
03/27/2015

certification provisions of Fed. R. Civ. P. 11(b), the party with the burden of proof shall file a statement of the claims or defenses it intends to prove at trial, stating specifically the legal theories upon which the claims or defenses are based.All discovery shall be completed by November 7, 2014. Defendants shall file any dispositive motion on or before December 17, 2014. Plaintiffs shall file any response thereto, along with any cross−dispositive motion, on or before January 20, 2015. Defendants shall file any response to Plaintiffs' cross−dispositive motion and any reply in support of their dispositive motion on or before February 20, 2015. Plaintiffs shall file any reply in support of their cross−dispositive motion on or before March 9, 2015. Signed by Magistrate Judge Mark J. Dinsmore. (NLR) (Entered: 11/20/2014)
141 Statement of Claims by CODY COLE, COLTON COLE, TIMOTHY KEISTER, THOMAS MAERTZ. (Rose, Gavin) (Entered: 12/02/2014)
142 Statement of Defenses by All Defendants. (Mappes, Harmony) (Entered: 12/03/2014)
143 MOTION for Summary Judgment , filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Attachments: # 1 Exhibit 1 − FS Waiver, # 2 Exhibit 2 − CIH Waiver, # 3 Exhibit 3 − A&D Waiver, # 4 Exhibit 4 − 2006 Policy, # 5 Exhibit 5 − 2011 Policy, # 6 Pierson Declaration, # 7 Reynolds Declaration, # 8 Interrogatory Responses, # 9 Responses to Requests for Admission)(Mappes, Harmony) (Entered: 12/17/2014)
144 BRIEF/MEMORANDUM in Support re 143 MOTION for Summary Judgment , filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Mappes, Harmony) (Entered: 12/17/2014)
145 Cross MOTION for Summary Judgment , filed by Intervenor Plaintiffs CODY COLE, COLTON COLE, THOMAS MAERTZ. (Attachments: # 1 Exhibit 1 (Dep. of J. Reynolds), # 2 Exhibit 2 (Aff. of T. Awald), # 3 Exhibit 3 (Aff. of F. Kemp), # 4 Exhibit 4 (Case File Documents of Cody Cole), # 5 Exhibit 5 (Case File Documents of Colton Cole), # 6 Exhibit 6 (Case File Documents of T. Maertz), # 7 Exhibit 7 (DOJ Guidance))(Rose, Gavin) (Entered: 01/17/2015)
146 BRIEF/MEMORANDUM in Support re 145 Cross MOTION for Summary Judgment and Response in Opposition to 143 Defendants' Motion for Summary Judgment, filed by Intervenor Plaintiffs CODY COLE, COLTON COLE, THOMAS MAERTZ. (Rose, Gavin) (Entered: 01/17/2015)
147 APPENDIX of Exhibits in Support of Defendants' Response to Plaintiffs' Cross Motion for Summary Judgment by All Defendants. (Attachments: # 1 Exhibit Second Reynolds Declaration, # 2 Exhibit Second Pierson Declaration) (Mappes, Harmony) (Entered: 02/20/2015)
148 REPLY in Support of Motion re Defendants' 143 MOTION for Summary Judgment and RESPONSE in Opposition of Motion re Plaintiff's 145 Cross MOTION for Summary Judgment, filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Mappes, Harmony) Modified on 2/23/2015 (BGT). (Entered: 02/20/2015)
149 Unopposed MOTION for Extension of Time to File Reply to 03/27/2015 re 145 Cross MOTION for Summary Judgment , filed by Intervenor Plaintiffs CODY COLE, COLTON COLE, TIMOTHY KEISTER, THOMAS MAERTZ. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 02/25/2015)
150 ORDER granting Plaintiffs' 149 Motion for Extension of Time to File Reply to 3/27/2015 re 145 Cross MOTION for Summary Judgment . Signed by Judge Jane Magnus−Stinson on 2/26/2015. (SWM) (Entered: 02/26/2015)
151 NOTICE of Filing (Supplemental Designation of Evidence in Supp. of Cross−Mot. for Summ. Judgment) by CODY COLE, COLTON COLE, THOMAS MAERTZ (Attachments: # 1 Exhibit 1 (Current Reimbursement Rates for Waiver Services), # 2 Exhibit 2 (Side−by−side Comparison of Prior Authorization and Waiver Services)) (Rose, Gavin) (Entered: 03/27/2015)
152 REPLY in Support of Motion re 145 Cross MOTION for Summary Judgment , filed by Intervenor Plaintiffs CODY COLE, COLTON COLE, THOMAS MAERTZ. (Rose, Gavin) (Entered: 03/27/2015)

Case: 1:13-cv-957 As of: 03/17/2018 03:43 PM EDT 15 of 18

03/27/2015 03/27/2015 03/27/2015 04/03/2015 04/06/2015
04/13/2015 04/13/2015 04/14/2015 05/12/2015 05/12/2015 05/13/2015 05/13/2015
05/25/2015

153 NOTICE of Appearance by Victoria Louise Thomas on behalf of Interested Party UNITED STATES OF AMERICA. (Thomas, Victoria) (Entered: 03/27/2015)
154 NOTICE of Appearance by Debra G. Richards on behalf of Interested Party UNITED STATES OF AMERICA. (Richards, Debra) (Entered: 03/27/2015)
155 Statement of Interest by UNITED STATES OF AMERICA. (Richards, Debra) (Entered: 03/27/2015)
156 Unopposed MOTION for Leave to File a Response to 155 Statement of Interest of the United States of America, filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Attachments: # 1 Text of Proposed Order)(Mappes, Harmony) (Entered: 04/03/2015)
157 ENTRY. The Defendants filed an unopposed motion for leave to file a response to the Statement of Interest filed by the United States of America [dkt.156] in the 1:13−cv−00957 case. The motion is granted and the response shall be filed on or before April 13, 2015, limited to no more than 10 pages. Both cases are set for oral argument on the pending cross motions for summary judgment on April 28, 2015 at 9:00 a.m. in Room 307, U.S. Courthouse, 46 E. Ohio Street, Indianapolis, Indiana. Each side shall have a total of 60 minutes. The individual parties may divide their allotted time as they see fit. The United States shall have 20 minutes to argue in support of its statement of interest. Signed by Judge Jane Magnus−Stinson on 4/6/2015. (BGT) (Entered: 04/06/2015)
158 Unopposed MOTION for Continuance of Oral Argument Scheduled for April 28, 2015, filed by Intervenor Plaintiffs CODY COLE, COLTON COLE, THOMAS MAERTZ. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 04/13/2015)
159 RESPONSE to Statement of Interest of the United States of America, re 155 Statement, filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Mappes, Harmony) (Entered: 04/13/2015)
160 ORDER granting Plaintiffs−Intervenors' 158 Motion to Continue the Oral Argument. The Oral Argument is reset for 5/13/2015 at 2:00 PM in room #307, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Jane Magnus−Stinson. Signed by Judge Jane Magnus−Stinson on 4/14/2015. (BGT) (Entered: 04/14/2015)
161 MOTION to Dismiss for Lack of Jurisdiction (Subject Matter) as to Plaintiff Keister, filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Mappes, Harmony) (Entered: 05/12/2015)
162 BRIEF/MEMORANDUM in Support re 161 MOTION to Dismiss for Lack of Jurisdiction (Subject Matter) as to Plaintiff Keister , filed by Defendants FAITH LAIRD, DEBRA MINOTT, NICOLE NORVELL. (Mappes, Harmony) (Entered: 05/12/2015)
163 ENTRY. The May 13, 2015 Oral Argument hearing, TIME ONLY, is reset to 1:30 p.m. in Room 307, U.S. Courthouse, 46 E. Ohio Street, Indianapolis, Indiana. Signed by Judge Jane Magnus−Stinson on 5/13/2015. (BGT) (Entered: 05/13/2015)
164 MINUTE ENTRY for proceedings held before Judge Jane Magnus−Stinson. On May 13, 2015, the Court held an oral argument on the pending motions for summary judgment. Plaintiffs were represented by counsel, Gavin Rose. Defendants were represented by counsel Harmony Mappes, Ryan Hurley, and Stephanie Boxell. Interested Party, United States of America were represented by Debra Richards and Victoria Thomas. The Court heard argument from counsel for all parties. The Court took the pending motions under advisement and ruling will be by separate order. Signed by Judge Jane Magnus−Stinson on 5/13/2015. (Court Reporter Jean Knepley.) (BGT) Modified on 5/13/2015 (BGT). (Entered: 05/13/2015)
165 RESPONSE to Motion re 161 MOTION to Dismiss for Lack of Jurisdiction (Subject Matter) as to Plaintiff Keister , filed by Intervenor Plaintiff TIMOTHY KEISTER. (Rose, Gavin) (Entered: 05/25/2015)

Case: 1:13-cv-957 As of: 03/17/2018 03:43 PM EDT 16 of 18

05/28/2015
06/09/2015 06/09/2015 06/29/2015 06/29/2015 07/01/2015 07/01/2015 07/01/2015 07/03/2015 07/11/2015 07/13/2015

166 ORDER granting Defendants' 161 Motion to Dismiss for Lack of Jurisdiction. Presently pending before the Court is Defendants' Motion to Dismiss Plaintiff Timothy Keister's claims for lack of subject−matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). [Filing No. 161.] Defendants contend that Mr. Keister's claims are moot because he is now enrolled in a waiver program that provides him with the services he seeks by way of this suit. [Filing No. 162 at 1−2.] Mr. Keister agrees that, in light of the Court's earlier denial of the Motion to Certify a Class, [see Filing No. 112], "his individual claims are moot and that he may be dismissed as a plaintiff." [Filing No. 165 at 2.] In so conceding, however, "Mr. Keister reserves his right to appeal the denial of his [Motion to Certify a Class] following final judgment in this cause." [Filing No. 165 at 2 (citing U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 404 (1980)).] The Court agrees with the parties that Mr. Keister's claims are moot, and therefore that this Court lacks subject−matter jurisdiction over his claims. See Pakovich v. Verizon LTD Plan, 653 F.3d 488, 492 (7th Cir. 2011) ("Federal courts lack subject matter jurisdiction when a case becomes moot."). Accordingly, Defendants' Motion to Dismiss Mr. Keister's claims is GRANTED. [Filing No. 161.] No partial final judgment shall issue at this time. Signed by Judge Jane Magnus−Stinson on 5/28/2015. (BGT) (Entered: 05/28/2015)
167 ORDER. Defendants' Motion for Summary Judgment is GRANTED, [Filing No. 143], and Plaintiffs' Cross Motion for Summary Judgment is DENIED, [Filing No. 145]. Plaintiffs' integration−mandate claim is unripe and is therefore dismissed without prejudice. Final Judgment shall issue accordingly. SEE ORDER. Signed by Judge Jane Magnus−Stinson on 6/9/2015. (BGT) (Entered: 06/09/2015)
168 FINAL JUDGMENT PURSUANT TO FED. R. CIV. PRO. 58. Consistent with the Court's Order entered this date, the Court now enters FINAL JUDGMENT in this matter in favor of Defendants such that Plaintiffs shall take nothing by way of their Complaint. This action is dismissed without prejudice. Signed by Judge Jane Magnus−Stinson on 6/9/2015. (BGT) (Entered: 06/09/2015)
169 NOTICE OF APPEAL as to 112 Order on Motion to Certify ClassOrder on Motion to Intervene, 168 Closed Judgment, 167 Order on Motion for Summary Judgment, 128 Order on Motion to Dismiss/Lack of Jurisdiction, 166 Order on Motion to Dismiss/Lack of Jurisdiction, filed by Intervenor Plaintiffs CODY COLE, COLTON COLE, TIMOTHY KEISTER, THOMAS MAERTZ, Plaintiff KARLA STEIMEL. (Filing fee $505, receipt number 0756−3511503) (Rose, Gavin) (Entered: 06/29/2015)
170 DOCKETING STATEMENT by CODY COLE, COLTON COLE, TIMOTHY KEISTER, THOMAS MAERTZ, KARLA STEIMEL re 169 Notice of Appeal (Rose, Gavin) (Entered: 06/29/2015)
171 PARTIES' SHORT RECORD re 169 Notice of Appeal − Instructions for Attorneys and Designation of Record information attached. Docket Report containing sealed entries emailed to counsel of record. (MAG) Modified on 7/1/2015 to show sealed docket sheet emailed to counsel (MAG). (Entered: 07/01/2015)
172 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 169 Notice of Appeal. − for Court of Appeals Use Only. Docket Report containing sealed entries emailed to USCA.(MAG) Modified on 7/1/2015 include additional orders (MAG). (Main Document 172 replaced on 7/1/2015) (MAG). (Entered: 07/01/2015)
173 USCA Case Number 15−2377 for 169 Notice of Appeal filed by CODY COLE, COLTON COLE, TIMOTHY KEISTER, KARLA STEIMEL, THOMAS MAERTZ. (MAG) (Entered: 07/01/2015)
174 SEVENTH CIRCUIT TRANSCRIPT INFORMATION SHEET by CODY COLE, COLTON COLE, TIMOTHY KEISTER, THOMAS MAERTZ, KARLA STEIMEL re 169 Notice of Appeal (Rose, Gavin) (Entered: 07/03/2015)
175 DESIGNATION of Record on Appeal by CODY COLE, COLTON COLE, TIMOTHY KEISTER, THOMAS MAERTZ, KARLA STEIMEL re 169 Notice of Appeal (Attachments: # 1 Exhibit (Docket with Designated Entries))(Rose, Gavin) (Entered: 07/11/2015)
176 SEVENTH CIRCUIT TRANSCRIPT INFORMATION SHEET by All Defendants re 169 Notice of Appeal (Mappes, Harmony) (Entered: 07/13/2015)

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07/29/2015 07/29/2015 08/14/2015 08/14/2015 11/25/2015 12/09/2015 06/01/2016
06/07/2016
06/10/2016
08/18/2016 08/23/2016

177 NOTICE of FILING of OFFICIAL TRANSCRIPT of Motion Hearing held before Judge Jane Magnus−Stinson on 03/10/2014 (Moxley, David) (Entered: 07/29/2015)
178 TRANSCRIPT of Motion Hearing held on 03/10/2014 before Judge Jane Magnus−Stinson. (60 pages.) Court Reporter/Transcriber: David Moxley (Telephone: (317) 916−8209). Please review Local Rule 80−2 for more information on redaction procedures. Redaction Statement due 8/19/2015. Release of Transcript Restriction set for 10/27/2015. (Moxley, David) Released on 10/28/2015 (SWM). (Entered: 07/29/2015)
179 TRANSCRIPT of Oral Argument on Cross−Motions for Summary Judgment held on 5−13−15 before Judge Jane Magnus−Stinson. (78 pages.) Court Reporter/Transcriber: Jean Knepley (Telephone: (317) 686−0197). Please review Local Rule 80−2 for more information on redaction procedures. Redaction Statement due 9/4/2015. Release of Transcript Restriction set for 11/12/2015. (Knepley, Jean) Released on 11/12/2015 (SWM). (Entered: 08/14/2015)
180 NOTICE of FILING of OFFICIAL TRANSCRIPT of Oral Argument on Cross−Motions for Summary Judgment held before Judge Jane Magnus−Stinson on 5−13−15 (Knepley, Jean) (Entered: 08/14/2015)
181 Certified and Transmitted Record on Appeal on a CD to US Court of Appeals, via UPS re 169 Notice of Appeal (USCA #15−2377). Contents of CD: 4 vol. pleadings, 2 vol. oversized documents, 2 vol. transcripts, and 26 vol. sealed documents. (Attachments: # 1 Notice to Transmit Record)(MAG) (Entered: 11/25/2015)
182 Appeal Remark re 169 Notice of Appeal (USCA #15−2377) : Original record on appeal filed electronically. Contents of record : 4 vol. of pleadings; 2 vol. of exhibits; 26 sealed documents; and 2 transcripts. (MAG) (Entered: 12/09/2015)
183 MANDATE of USCA as to 169 Notice of Appeal filed by CODY COLE, COLTON COLE, TIMOTHY KEISTER, KARLA STEIMEL, THOMAS MAERTZ (USCA #15−2377) − We REVERSE the judgment of the district court and REMAND for further proceedings consistent with the opinion. We AFFIRM the district court's decision not tocertify the proposed class. Costs will be taxed against the state. The above is in accordance with the decision of this court entered on this date. (LBT) (Entered: 06/01/2016)
184 SCHEDULING ORDER: Pretrial Conference set for 6/10/2016 01:30 PM (Eastern Time) in Telephonic before Magistrate Judge Mark J. Dinsmore. The purpose of the conference is to put in place a schedule to move forward in light of the Seventh Circuit's Mandate [Dkt. 183]; counsel for the parties should confer regarding a proposed schedule in advance of the conference. Counsel shall attend the conference by calling the designated telephone number, to be provided by the court via email. Signed by Magistrate Judge Mark J. Dinsmore on 6/7/2016.(SWM) Modified on 6/7/2016 (SWM). (Entered: 06/07/2016)
185 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephonic Pretrial Conference held on 6/10/2016. All Discovery in this matter shall be completed by no later than 10/14/2016. All other requirements of the approved Case Management Plan as amended (Dkts. 29 , 127 , & 140 ) remain in effect. Settlement Conference set for 8/26/2016 at 9:00 AM (Eastern Time) in room #257, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Magistrate Judge Mark J. Dinsmore. *See order for deadlines and additional information.* Signed by Magistrate Judge Mark J. Dinsmore. (GD) (Entered: 06/10/2016)
186 Joint MOTION to Vacate Settlement Conference and Remaining Deadlines, filed by Intervenor Plaintiffs CODY COLE, COLTON COLE, THOMAS MAERTZ. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 08/18/2016)
187 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephonic Status Conference held on 8/23/2016. The parties discussed the status of settlement discussions and the upcoming settlement conference. The parties advised that the damage claims of the individual Plaintiffs have been resolved and that the only unresolved issue relates to Plaintiffs' attorneys' fees, which have been assigned for resolution to counsel for Plaintiffs; accordingly, the individual Plaintiffs in this matter only are hereby excused from attending the upcoming settlement conference. Otherwise, the parties were advised that the August 26, 2016 settlement conference

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08/23/2016
10/20/2016 10/21/2016
11/22/2016 11/22/2016 11/30/2016 12/19/2016 12/20/2016

remains on the schedule unless and until the parties advise the Court that they have reached agreement as to all open issues, pending approval of such settlement by the Indiana Governor and Attorney General. Signed by Magistrate Judge Mark J. Dinsmore. (GD) (Entered: 08/23/2016)
188 ORDER DIRECTING FILING OF DOCUMENTS AUTHORIZING DISMISSAL: The Court has been advised by counsel that a settlement has been reached in this action. Therefore, all pending motions, if any, are now DENIED AS MOOT and all previously ordered dates relating to discovery, filings, schedules, conferences, and trial, if any, are VACATED. Within sixty (60) days of the date of this entry, counsel for the Plaintiff shall file a motion to dismiss this cause and submit an order for the Court's signature ordering the dismissal of this action or a stipulation of dismissal. Signed by Magistrate Judge Mark J. Dinsmore on 8/23/2016. (SWM) (Entered: 08/23/2016)
189 Joint MOTION for Extension of Time to 12/23/2016 to File Dismissal Documents, filed by Intervenor Plaintiffs CODY COLE, COLTON COLE, THOMAS MAERTZ. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 10/20/2016)
190 ORDER granting in part and denying in part Parties' 189 Joint Motion for Extension of Time to File dismissal documents. The parties are granted an enlargement of time, to and including 12/2/2016, within which to file documents dismissing this action. Status Conference set for 11/22/2016 10:30 AM (Eastern Time) in Telephonic before Magistrate Judge Mark J. Dinsmore. Counsel shall attend the status conference by calling the designated telephone number, to be provided by the Court via email generated by the Court's ECF system. Signed by Magistrate Judge Mark J. Dinsmore on 10/21/2016.(SWM) (Entered: 10/21/2016)
192 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephonic Status Conference held on 11/22/2016. Counsel for Defendants failed to appear. Counsel for Plaintiffs/Intervenors reported on the status of the resolution of the matter. Telephonic Status Conference set for 11/30/2016 at 10:00 AM (Eastern Time) before Magistrate Judge Mark J. Dinsmore. *See order for additional information.* Signed by Magistrate Judge Mark J. Dinsmore. (GD) (Entered: 11/22/2016)
193 ***PLEASE DISREGARD. DOCKETED IN ERROR.*** MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephonic Status Conference held on 11/22/2016. Counsel for Defendants failed to appear. Counsel for Plaintiffs reported on the status of the resolution of the matter. Telephonic Status Conference set for 11/30/2016 10:00 AM (Eastern Time) before Magistrate Judge Mark J. Dinsmore. *See order for additional information.* Signed by Magistrate Judge Mark J. Dinsmore. (GD) Modified on 11/22/2016 (GD). (Entered: 11/22/2016)
195 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephonic Status Conference held on 11/30/2016. Parties reported on the status of the resolution of the matter. Parties granted an enlargement of time, to and including December 30, 2016, within which to file documents dismissing this action. Signed by Magistrate Judge Mark J. Dinsmore. (GD) (Entered: 12/01/2016)
196 STIPULATION of Dismissal , filed by Intervenor Plaintiffs CODY COLE, COLTON COLE, THOMAS MAERTZ. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 12/19/2016)
197 CLOSED DISMISSED − The parties having filed their Stipulation of Dismissal ("Stipulation"), and the Court having read and reviewed the same and being duly advised, the Court hereby ACKNOWLEDGES the Stipulation and ORDERS that this cause is hereby dismissed, with prejudice and with each party to bear their own costs except as separately agreed. Signed by Judge Jane Magnus−Stinson on 12/20/2016. (GSO) (Entered: 12/20/2016)

Case #: 1:13−cv−00957−JMS−MJD