```

[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]

 
 EXAMINING CLASS ACTION LAWSUITS AGAINST INTERMEDIATE CARE FACILITIES 
            FOR INDIVIDUALS WITH INTELLECTUAL DISABILITIES 
                               (ICF/IID)

=======================================================================

                                HEARING

                               before the

                    SUBCOMMITTEE ON THE CONSTITUTION
                           AND CIVIL JUSTICE

                                 of the

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED FIFTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             MARCH 6, 2018

                               __________

                           Serial No. 115-52

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
         
         
         
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]         

      Available via the World Wide Web: http://judiciary.house.gov
      
      
                            _________ 

                U.S. GOVERNMENT PUBLISHING OFFICE
                   
 32-963                  WASHINGTON : 2018            
 
 
 
      
      
                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JERROLD NADLER, New York
    Wisconsin                        ZOE LOFGREN, California
LAMAR SMITH, Texas                   SHEILA JACKSON LEE, Texas
STEVE CHABOT, Ohio                   STEVE COHEN, Tennessee
DARRELL E. ISSA, California          HENRY C. ``HANK'' JOHNSON, Jr., 
STEVE KING, Iowa                         Georgia
LOUIE GOHMERT, Texas                 THEODORE E. DEUTCH, Florida
JIM JORDAN, Ohio                     LUIS V. GUTIERREZ, Illinois
TED POE, Texas                       KAREN BASS, California
TOM MARINO, Pennsylvania             CEDRIC L. RICHMOND, Louisiana
TREY GOWDY, South Carolina           HAKEEM S. JEFFRIES, New York
 RAUL LABRADOR, Idaho                DAVID CICILLINE, Rhode Island
BLAKE FARENTHOLD, Texas              ERIC SWALWELL, California
DOUG COLLINS, Georgia                TED LIEU, California
RON DeSANTIS, Florida                JAMIE RASKIN, Maryland
KEN BUCK, Colorado                   PRAMILA JAYAPAL, Washington
JOHN RATCLIFFE, Texas                BRAD SCHNEIDER, Illinois
MARTHA ROBY, Alabama                 VALDEZ VENITA ``VAL'' DEMINGS, 
MATT GAETZ, Florida                      Florida
MIKE JOHNSON, Louisiana
ANDY BIGGS, Arizona
JOHN RUTHERFORD, Florida
KAREN HANDEL, Georgia
KEITH ROTHFUS, Pennsylvania

          Shelley Husband, Chief of Staff and General Counsel
       Perry Apelbaum, Minority Staff Director and Chief Counsel
                                 ------                                

           Subcommittee on the Constitution and Civil Justice

                       STEVE KING, Iowa, Chairman
                  RON DeSANTIS, Florida, Vice-Chairman
LOUIE GOHMERT, Texas                 STEVE COHEN, Tennessee
KAREN HANDEL, Georgia                JAMIE RASKIN, Maryland
                                     THEODORE E. DEUTCH, Florida
                                     
                                     
                            C O N T E N T S

                              ----------                              

                             MARCH 6, 2018
                           OPENING STATEMENTS

                                                                   Page
The Honorable Steve King, Iowa, Chairman, Subcommittee on the 
  Constitution and Civil Justice.................................     1
The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the 
  Judiciary......................................................     4
The Honorable Jerry Nadlar, New York, Ranking Member, Committee 
  on the Judiciary...............................................     2

                               WITNESSES

Martha Bryant, Mother and RN BSN, Amherst County, Virginia
    Oral Statement...............................................     6
Caroline Lahrmann, Mother and Former President of VOR, Columbus, 
  Ohio
    Oral Statement...............................................     7
Alison Barkoff, Sister and Co-Chair, Consortium of Citizens with 
  Disabilities
    Oral Statement...............................................     9
Peter Kinzler, Father and Attorney, Alexandria, VA
    Oral Statement...............................................    11

              Additional Material Submitted for the Record

Letters Submitted by the Honorable Steve Cohen, Tennessee, 
    Ranking Member, Subcommittee on the Constitution and Civil 
    Justice. This material is available at the Committee and can 
    be accessed on the committee repository at:

    https://docs.house.gov/meetings/JU/JU10/20180306/106917/HHRG-
        115-JU10-20180306-SD005.pdf

Letters Submitted by the Honorable Steve King, Iowa, Chairman, 
    Subcommittee on the Constitution and Civil Justice. This 
    material is available at the Committee and can be accessed on 
    the committee repository at:

    https://docs.house.gov/meetings/JU/JU10/20180306/106917/HHRG-
        115-JU10-20180306-SD004.pdf

 EXAMINING CLASS ACTION LAWSUITS AGAINST INTERMEDIATE CARE FACILITIES 
        FOR INDIVIDUALS WITH INTELLECTUAL DISABILITIES (ICF/IID)

                              ----------                              

                         TUESDAY, MARCH 6, 2018

                        House of Representatives

           Subcommittee on the Constitution and Civil Justice

                       Committee on the Judiciary

                            Washington, DC.

    The subcommittee met, pursuant to call, at 10:09 a.m., in 
Room 2141, Rayburn House Office Building, Hon. Steve King 
[chairman of the subcommittee] presiding.
    Present: Representatives King, Goodlatte, DeSantis, Cohen, 
and Nadlar.
    Staff Present: Jake Glancy, Clerk; John Coleman, Counsel; 
James Park, Minority Counsel; Danielle Brown, Minority Deputy 
Chief Counsel and Parliamentarian; David Greengrass, Minority 
Senior Counsel; and Veronica Eligan, Minority Professional 
Staff Member.
    Mr. King. The Subcommittee on The Constitution on Civil 
Justice will come to order. Without objection, the chair is 
authorized to declare a recess of the committee at any time. We 
welcome everyone to today's hearing on the examining class 
action lawsuits against intermediate care facilities for 
individuals with intellectual disabilities.
    I now recognize myself for an opening statement. Today's 
hearing will examine class action lawsuits against intermediate 
care facilities for individuals with intellectual disabilities 
known as ICF/IIDs. Defined by Federal statute, an intermediate 
care facility or ICF is an institutional form of care that 
provides health or rehabilitative services to individuals with 
intellectual disabilities and is eligible for optional medical 
benefits it meets both statutory and regulatory requirements.
    According to Centers for Medicare and Medicaid Services, 
CMS, quote, ``This program serves over 100,000 individuals with 
intellectual disabilities and other related conditions. Most 
have other disabilities, as well as intellectual disabilities. 
Many of the individuals are non-ambulatory, have seizure 
disorders, behavior problems, mental illness, visual or hearing 
impairments, or a combination of the above. All must qualify 
for Medicaid assistance financially.'' closed quote.
    While all 50 States have at least one ICF, there has been a 
major ideological shift in recent decades away from 
institutional care to community-based services. In 1999 for 
example, the Supreme Court held in Olmstead v. L.C. that 
individuals with intellectual disabilities have the right to 
live in the community rather than in institutions, if, quote, 
``The State's treatment professionals have determined that 
community placement is appropriate, the transfer from 
institutional care to a less restrictive setting is not opposed 
by the affected individual, and the placement can be reasonably 
accommodated, taking into account the resources available to 
the State and the needs of others with mental disabilities.'' 
closed quote.
    In recent years, actions by the Department of Justice, as 
well as class action lawsuits brought by government funded 
protection and advocacy attornies have led to closures of many 
ICFs across the country. The original decision in Olmstead v. 
L.C. reads to me as use commonsense. I think we are going to 
examine some commonsense here today as we listen to the 
witnesses.
    And according to testimony submitted for today's hearing 
these closures have posed a significant risk for individuals 
with acute forms of disabilities who need special, around the 
clock care. Community-based services such as group homes, 
according to many parents, are insufficient to provide the 
amount of care their sons and daughters need and without the 
availability of effective forms of care like ICFs, these 
individuals are being denied the freedom to chose where they 
live and work and even with whom they associate.
    I would like to thank our witnesses for being here today. I 
look forward to your testimony.
    And I now recognize the ranking member of the full 
committee, Mr. Nadler, for his opening statement.
    Mr. Nadler. Thank you, Mr. Chairman.
    Mr. Chairman as we consider today's narrow topic of class 
action lawsuits against Intermediate Care Facilities that care 
for individuals with intellectual disabilities, we must be sure 
that our focus is always on this key question, how can we 
ensure that people with mental disabilities receive the best 
care possible appropriate to their individual circumstances?
    Since the 1960s aided by the advent of psychotropic drugs, 
there has been a national effort to move away from caring for 
people with mental disabilities in large institutions. Today 
there is a broad consensus that where possible people with 
intellectual disabilities should be integrated into their 
communities, in less restrictive settings. This has been aided 
by the Americans With Disabilities Act and the DOJ regulations 
implementing the ADA, which requires State and local 
governments to administer programs in the most integrated 
setting appropriate to the needs of individual.
    In 1999 the Supreme Court made clear in Olmstead v. L.C. 
that with respect to persons with intellectual developmental 
disabilities who have been institutionalized in intermediate 
care facilities, unjustified institutionalization of such 
persons constitutes unlawful segregation of persons with 
disabilities and therefore is a violation of the ADA.
    The court clarified in Olmstead, however that the 
obligation of States to integrate institutionalized persons 
into community-based programs attached only where one, the 
State's medical professionals conclude that such placement is 
medically appropriate; two, the resident of the institution 
does not oppose placement in a community based program, and 
three, such placement can be reasonably accommodated in light 
of the State's resources and need of others who have mental 
disabilities.
    The Olmstead court endeavored to promote the integration of 
persons with mental disabilities into the mainstream of 
American society, while being flexible enough to recognize that 
not all such persons are able to live in a community setting, 
that they may require a higher level of care than community 
programs may be able to provide.
    Some families of persons with intellectual disabilities are 
concerned however that the carefully balanced approach set 
forth by the court has in practice become a biased toward 
community integration even when an individual would be best 
served by remaining in an institution. These family members 
believe that the institutionalization efforts have placed their 
love ones at unnecessary risk, by denying or eroding their 
ability to remain in an institutional setting which may be 
necessary for their care.
    They are concerned that when States move individuals out of 
institutional settings and into community-based care, such 
placements have sometimes been used as an excuse for the State 
to save money and to reduce its commitment to care of 
individuals with disabilities with predictable and often tragic 
results.
    Furthermore, some have argued that when class action 
litigation is filed to enforce Olmstead, individuals with 
disabilities and families do not have an adequate ability to 
participate in the case or to opt out, even though the court's 
decision will inevitably impact the care available to the 
individual. For this reason back in the 111th and 112th 
Congresses, our former colleague, Representative Barney Frank, 
introduced legislation that would have effectively curtailed 
the use of class action to enforce Olmstead by quote, 
``Protection and advocacy'' Agencies, which are Federally 
funded entities charged with enforcing the rights of persons 
with disabilities.
    Among other things the bill would have imposed a presuit 
notification requirement and would have given residents at 
intermediate care facilities that are the target of a potential 
lawsuit or their legal representatives the right to opt out of 
a punitive class before a class action could be filed against 
their facility.
    Opponents of this legislation argue that the bill would 
make it too difficult to pursue class relief on behalf of 
institutionalized persons with intellectual disabilities by 
making it too hard to form a class in the first place by giving 
potential defendants facilities the opportunity to intimidate 
residents into opting out of a potential class action.
    Moreover, they noted the bill was unnecessary to the extent 
that it was intended to help class members who objected to a 
class action because rule 23 of the Federal Rules of Civil 
Procedure which governs class actions already includes a number 
of procedural protections for class members. These include the 
newest requirements for class certification and the ability of 
class members to challenge any proposed settlement agreement 
that might effect their interest. It is almost axiomatic that 
class actions are a key tool of civil rights enforcements, 
including the enforcement of rights to protect people with 
disabilities from unjustified segregation. Therefore, we must 
be wary of legislative efforts to curtail their use. As a 
society we have made much progress in breaking down physical 
and social barriers against persons with disabilities since the 
ADA's enactment.
    Efforts to undermine enforcement through litigation could 
threaten to turn the clock back. At the same time, the U.S. 
recognizes some litigation may have unintended consequences. 
For too long many people with intellectual disabilities were 
shunted to the outskirts of society with fundamental dignity 
and value ignored. You must be mindful that in protecting the 
rights of individuals to be cared for in community based 
settings, we have an equal duty to protect the rights of those 
for whom an institutional facility is more appropriate. 
Ensuring that each person with mental disabilities receives the 
level of care best suited to their individual needs requires a 
careful balance.
    I look forward to hearing from our witnesses today as to 
how we can best strike this balance. And I yield back the 
balance of my time.
    Mr. King. The chair thanks the gentleman from New York for 
his opening statement now. Recognizes the chairman of the full 
committee, Mr. Goodlatte for his opening statement.
    Chairman Goodlatte. Well thank you, Mr. Chairman. I 
appreciate you holding this very important hearing.
    Today's hearing examines the devastating effects of class 
actions on the availability of Intermediate Care Facilities for 
individuals with intellectual and development disabilities 
across the country. Underlying these lawsuits is a pervasive 
belief that institutionalized care has little or no place in 
our society today. Martha Bryant, a constituent of mine, has 
come here to testify about the tragic circumstances of her 
son's death last year after the Central Virginia Training 
Center in Lynchburg, Virginia, closed its doors to her family.
    While this scheduled closing, as well as the closings of 
three other institutional facilities in Virginia were 
ultimately the result of a settlement agreement negotiated by 
the Department of Justice under the Obama administration the 
policies underlying DOJ's claims are the same as those advanced 
by class actions.
    In recent years, several cases brought by the civil rights 
division specifically the special litigation section have 
blatantly disregarded the choice requirement set forth in 
Olmstead v. L.C. In Olmstead, the Supreme Court ruled that 
unjustified institutionalization is discrimination under the 
Americans with Disabilities Act, which according to law 
encourages States to administer services in the most integrated 
setting appropriate to the needs of qualified individuals with 
disabilities. The court in Olmstead specifically affirmed the 
right of choice by holding that an individual has a right to 
reject placement. The court also recognized that the community 
is not the most appropriate place for some individuals.
    It is stated and I quote, we emphasize that nothing in the 
ADA or its implementing regulations condones termination of 
institutional settings for persons unable to handle or benefit 
from community settings, nor is there any Federal requirement 
that community based treatment be imposed on patients who do 
not desire it.
    Nevertheless, we are seeing a national trend towards 
deinstitutionalization due in part to DOJ's efforts and through 
dozens of class actions that have been filed with the purpose 
of closing intermediate care facilities, as well as other 
Medicaid license facilities.
    Like DOJ's enforcement actions, class actions often sweep 
up individuals who do not wish to participate because they are 
filed under rule 23(b)(2) of the Federal Rules of Civil 
Procedure. Under rule 23(b)(2), plaintiff's attorneys are not 
required to notify potential members of the class and inform 
them of the right to opt out if they so wish.
    In 2012, I cosponsored a bill with former Representative 
Barney Frank to correct this issue and look forward to our 
witnesses' recommendations about whether this legislation 
should be introduced again.
    I would like to especially welcome Ms. Bryant and also our 
other witnesses. I thank you for being here and sharing your 
stories with us.
    Mr. Chairman, I yield back.
    Mr. King. I thank the chairman of the full committee. 
Without objection, other members' opening statements will be 
made part of the record.
    And now I will introduce the witnesses. Our first witness 
is Martha Bryant of Amherst County, Virginia, who joins us to 
tell her story. Our second witness is Caroline Lahrmann, Ohio 
State coordinator for VOR. Our third witness is Alison Barkoff, 
the co-chair of the Consortium of Citizens With Disabilities. 
And our final witness is Pete Kinzler, an attorney and a long 
time officer of VOR.
    The light switch will turn from green to yellow indicating 
that you have 1 minute to conclude your testimony. When the 
light turns red it indicates that it is time to wrap it up. 
Before I recognize the witnesses, it is the tradition to swear 
you in this morning so please stand to be sworn in, the 
witnesses.
    Do you swear that the testimony you are about to give 
before this committee is the truth, the whole truth and nothing 
but the truth so help you God?
    Thank you. You may be seated. And let the record reflect 
that all the witnesses responded in the affirmative. Now I 
recognize our first witness, Ms. Bryant, please turn on the 
microphone Ms. Bryant and we are glad to hear your testimony.

TESTIMONY OF MARTHA BRYANT, MOTHER AND RN, BSN, AMHERST COUNTY, 
  VIRGINIA; CAROLINE LAHRMANN, MOTHER AND FORMER PRESIDENT OF 
   VOR, COLUMBUS, OHIO; ALISON BARKOFF, SISTER AND CO-CHAIR, 
 CONSORTIUM OF CITIZENS WITH DISABILITIES; AND PETER KINZLER, 
           FATHER AND ATTORNEY, ALEXANDRIA, VIRGINIA

                   TESTIMONY OF MARTHA BRYANT

    Ms. Bryant. Mr. Chairman and members of the committee, I am 
the voice of twin sons, Taylor and Tyler Bryant. And 
unfortunately, I am the voice of a dead son. Tyler Bryant was 
forced out of Central Virginia Training Center on January 17, 
2017. I also want to recognize my mother who is my rock here, 
Ms. Esther Stinnett from Amherst who does the road trips with 
me, and has been there in the hospital and the ICUs, and has 
certainly been my support ever since a triplet pregnancy and we 
happen to be country neighbors so she is close by.
    I certainly support the opt-out legislation. I tried every 
branch of government to stop the force--being forced out of 
Central Virginia Training Center. And I refused to sign a 
document from Virginia, Department of DBHDS that said that 
Hiram Davis was a training center.
    So let's go back to what happened. My sons were--their 
reason for disability is prematurity, they were triplets, they 
were 29 weeks gestation. So they have had disability from the 
beginning and they have had profound intellectual disability 
around 9 to 15 months level. They are nonverbal, nonambulatory. 
They also have spastic quadriplegic cerebral palsy, epilepsy, 
asthma, reactive airways, they use wheelchairs, tube feedings, 
trachs, oxygen. So probably some of the most severely impacted 
by Central Virginia Training Center. And I was definitely 
surprised when I got the phone call at school in August of 2016 
saying that they wanted to close their building by December, 
because the projected closure of Central Virginia Training 
Center was going to be 2020 and I thought that more people with 
better ability to go to community would go before my sons. But 
my sons' building was selected to be closed and so 42 people 
were caught up in this executive decision in Virginia.
    So of the 42, 36 were changed the level of care to ICF, but 
six people were selected to be forced out and my sons were the 
first two to go without consent. So I did not consent. They 
were forced by a letter and an order by acting commissioner 
Jack Barber. And we left on a cold January morning, probably 
the worst time of the year to go out with fragile people. And 
they were transferred to Hiram Davis Medical Center, which is 
on the Central State campus in Petersburg, which is 139 miles 
away. And I have to say that Hiram Davis is not a training 
center, even though it serves people with intellectual 
disability.
    I think the most profound shock is it has mentally ill, 
forensics and sex offenders. They today--Taylor is on the third 
floor of a nonADA building, under a current fire marshal 
citation. It is his sixth move in a year. And just a few weeks 
ago he was moved to the third floor from the second floor 
because of bed bugs.
    So when we arrived, which takes hours to go from Amherst to 
Petersburg, we--if we arrive on a weekend or after 4 o'clock, 
we are locked out. They have one operational psychiatric 
elevator. We have to be escorted to the floor. He is in a 
nonADA, ward-style room with no sink, four beds. Often we see 
people left in bed all day long with hospital gowns.
    When I asked for Taylor and Tyler to get up on a Saturday, 
it was like changing the culture. They weren't used to people 
being up on weekends. And of course my sons were used to being 
up and dressed in street clothes and having a life on weekends.
    But back to Tyler, what happened with Tyler. Tyler didn't 
tolerate the trip. He was the more--he weighed 2 pounds and 7 
ounces when he was born. He was in the hospital for 2 months at 
UVA and Tyler has always had a rocky asthma life. So basically 
he was forced out, 49 days in the hospital, most of those ICU 
days, told he could not go back to Hiram Davis and dead less 
than 2 months after out of CVTC. And he died in a Richmond 
hospital when I couldn't be there. I got a phone call when I 
was in my kitchen that I had a dead son in Richmond.
    So I fully support this and I have listed care concerns, 
many care concerns, many ongoing care concerns.
    Mr. King. Thank you, Ms. Bryant, appreciate your testimony.
    Ms. Lahrmann.

                 TESTIMONY OF CAROLINE LAHRMANN

    Ms. Lahrmann. Thank you, Chairman.
    My name is Caroline Lahrmann, I am the mother of twins, 
Henry and Elizabeth with profound intellectual and 
developmental disabilities. With all the challenges that our 
children face I could never have imagined that one day we would 
also need to fight to save their home, the loving home that we 
carefully chose for them. The home is a private charitable 
organization that we created 60 years ago when Otto and Mildred 
Heinzerling walked into their local bank, mortgaged their home, 
and started a care center for infants with profound needs. Who 
would have thought that this act of charity would be attacked 
one day by a public entity, and that the careful and 
responsibile care decisions of families would be undermined?
    At one time I too thought that decisions about healthcare 
and where and with whom one lives were private decisions. That 
could not be subject to litigation, certainly not in Federal 
court through a class action. But since 2016, Ohio families 
have been fighting a class action that threatens the healthcare 
and homes of 5,900 of Ohio's most disabled citizens, 
individuals who need intensive supports in ICFs not only do 
they need these facilities, these individuals have chosen these 
facilities.
    The public entity I speak of is a protection and advocacy 
agency a P&A. Federal law stipulates that P&As protect and 
advocate the rights of individuals with development 
disabilities. But these agencies lack oversight. They have 
become politicized and ideologically driven. In many States 
P&As only protect the rights of individuals who can handle 
community settings, while they undermine rights of those 
individuals too disabled to live in the community. Individuals 
like Ms. Bryant's son.
    Our P&A in Ohio, Disability Rights Ohio, also called DRO, 
filed a class action against the State that alleges that 5,900 
ICF residents think as one, that they all have the same 
capacity and desires, regardless of their disabilities to leave 
their homes, their communities of friends and caregivers and 
their healthcare to live in small community settings.
    DRO seeks what it terms a quote, single stroke solution to 
resolve class claims. Think about what that means. The lives of 
5,900 citizens decided in a single stroke. Consider what is at 
stake, where to live, with whom to live, your healthcare. These 
are highly personal decisions. Can you imagine any other 
American who would put up with having these matters decided on 
a group basis in Federal court? I can't. If this treatment is 
not okay for you or for me, why is it okay for persons with 
intellectual and developmental disabilities? It is not okay and 
the DOJ tells us that.
    In its final rule on nondiscrimination on the basis of 
disability, the DOJ wrote, public entities are required to 
ensure that their actions are based on facts applicable to 
individuals and not on presumptions as to what a class of 
individuals with disabilities can or cannot do.
    Think about that, a class of individuals. But with class 
actions, P&As make presumptions about persons with disabilities 
and then sweep them all into a single class. In his concurring 
opinion in Olmstead, Justice Kennedy spoke of the harmful 
effects of litigation and we have seen those here today. It 
would be unreasonable--I am sorry, this is what Justice Kennedy 
said in Olmstead in his concurring opinion.
    It would be unreasonable, it would be tragic, were the 
Americans With Disabilities Ability to be interpreted so that 
States had some incentive for fear of litigation to drive those 
in need of medical care and treatment out of appropriate care 
and into settings with too little assistance and supervision. 
Justice Ginsburg in Olmstead said, the ADA is not reasonably 
read to compel States to phase out institutions, placing 
patients in need of close care at risk, but that is exactly 
what these class actions do. As such, and Chairman, I 
appreciate you referencing this in your statement, at such the 
Olmstead court set up a careful three-prong test for community 
placement that is to be applied on an individual basis, not a 
class basis.
    DRO's lawsuit has inflicted great personal and financial 
costs on the families of Ohio. Families have had to raise 
$100,000 and counting for legal defense against a Federally 
funded entity. But in fighting to protect our family member's 
rights, we do not deny the rights of the plaintiff to seek 
relief. We object to the class action nature of that relief and 
sweeping others into litigation counter to their own interests, 
counter to their own disabled children's interest. Plaintiffs 
should seek relief as individuals, as these are highly 
particularized claims.
    This committee can correct the civil rights violations that 
are occurring with these class actions. I know that some have 
talked about an opt out, but I am sorry, I have seen what has 
happened in Ohio, and if these class actions move forward, no 
matter if some opt out, they are still going to be affected 
some day if their facility closes. And if they opt out, they 
may not be able to appear at the fairness hearing at the end of 
the settlement.
    So I personally believe that these class actions should be 
prohibited. I believe that class actions by P&As that attack 
Medicaid accommodations that are needed and chosen by their own 
constituents should be prohibited. Think about what I just 
said. P&As bring class action against Medicaid accommodations 
that are needed and chosen by their own clients. What other 
attorney can act antagonistically toward their client? And that 
is one of the basic ethics of being an attorney.
    Legal ethics alone should prohibit these class actions. 
Your assistance in this matter will restore rights to tens of 
thousands of citizens with disabilities throughout the country 
who live in fear of their protector and advocate in class 
actions. Thank you, sir.
    Mr. King. Thank you Ms. Lahrmann.
    Now I recognize Ms. Barkoff for your testimony. Ms. 
Barkoff.

                  TESTIMONY OF ALISON BARKOFF

    Ms. Barkoff. Thank you for the opportunity to testify 
today. My name is Alison Barkoff and I am a disability lawyer 
and the sister of an adult with an intellectual disability. 
When my brother was born 40 years ago, our family was told the 
only place for him was an institution and was immediately 
offered a spot as is required by law. We weren't offered any 
services to keep Evan at home and spent the next 2 decades 
piecing together help from school, friends and our religious 
community. Finally, at age 23, Evan received community services 
allowing him to achieve things that he was told would be 
impossible.
    I have also gotten to know people who transitioned to the 
community from the very institution where Evan could have been. 
An institution that closed not because of a class action 
lawsuit, but it closed because the dwindling number of people 
in the State's institutions and the huge demand for community 
services. And seeing some of those individuals with good 
services and support thrive and do well in the community has 
showed me what is possible. But not everybody has those 
opportunities. People like Brenda Boose, a single mother who is 
number 1,025 on a community wait list, with an estimated 8 year 
wait for health. She quit her job to take care of her son, sold 
her car and feared having to place him in an institution 
against her will.
    A settlement agreement in Virginia that focuses on 
expanding community services has given them the services they 
need to stay together.
    People like Earl H., a young man with significant medical 
needs, a tracheotomy, a g-tube, 24/7 care needs, who had to 
leave his family's home and enter an institution when he turned 
21 and aged out of the children's system. Again because of a 
lawsuit in Illinois, he is able to live back at home.
    People like Pam Wright who faced almost a decade of 
barriers trying to get her two children out of an ICF in 
Virginia. Again, because of the expansion of services, her sons 
are now living together with 24/7 medical support near their 
family.
    These people's experiences are an important part of today's 
conversation too. These lawsuits are about helping them too. 
They are not about taking away an option for institutional 
care. Those decisions can only be made by State legislatures as 
court, after court, after court has made clear.
    While there are many differences in views across our 
community, including at this table, I think we have many shared 
concerns. People with IDD are at risk of abuse, neglect and 
exploitation in all types of settings. In institutions, in 
group homes and even in family homes. And there are tragic and 
absolutely unacceptable circumstances where people are hurt or 
even die because they do not get services that are adequate to 
meet their needs.
    Public funds for services, particularly Medicaid, are 
stretched thin, exacerbating these problems. To keep our loved 
one safe and healthy, we need to make sure people are watching 
and that we have every tool at our disposal to hold systems 
accountable.
    Ms. Barkoff. I understand the committee is considering 
changing Federal rules governing class actions, rules that 
apply to every other person's access to the judicial system. 
Only in cases involving people with IDD in institutions. I urge 
you not to make those changes. They will not help address these 
real problems and could even make them worse. They are also 
unnecessary.
    Existing rules are flexible and already provide 
opportunities for people to impact the goals, direction and 
remedies in class actions. For decades class actions have been 
a way to address harm to a group of people, a tool of last 
resort when other efforts do not work. The basic human and 
civil rights of people with IDD are too often and too easily 
violated. Limiting class actions would decrease oversight of 
services, increase risk of harms to people with IDD, putting at 
risk health and safety, access to needed medical services and 
protections from abuse, neglect and exploitation.
    We would never eliminate access to court and protections 
for a group of people without disabilities. Why would we do 
that for one of the most vulnerable populations and limit a 
tool designed to protect safety, liberty and happiness? We want 
our family members safe, and healthy and to have a good life. 
And to make that happen, we need more reliable services, 
quality care providers and in the worst cases we need a justice 
system that will hold accountable those who have done wrong to 
our loved ones.
    Please do not take away a tool that can help protect my 
brother and other people with IDD. Instead, make it possible to 
provide better and more reliable services so that there is less 
need for class actions and more opportunities for every person 
with IDD to live happy and healthy lives. Thank you.
    Mr. King. Thank you Ms. Barkoff. Now the chair recognizes 
Mr. Kinzler for your testimony. Mr. Kinzler.

                   TESTIMONY OF PETER KINZLER

    Mr. Kinzler. Thank you very much, Chairman King and 
Chairman Goodlatte. I am the father of Jason Kinzler who is 42 
years old chronologically, but functions at the intellectual 
level largely of a 6 month old. Where you would place Jason on 
an IQ scale he would register in the single digits. As a 
result, he needs help with everything from eating, to dressing, 
to toileting. He requires 24 hour, round-the-clock care for his 
very survival.
    I am also a long time member and official officer of VOR, a 
national organization of families that advocate for choice and 
quality care in all settings. For 37 years Jason received 
excellent care at an ICF in Northern Virginia. In a facility 
that essentially serves as the intensive care unit of the ID 
system. In 2016, Jason was forced to leave his home when the 
DOJ lawsuit led to a settlement that closed it. The suit was 
the result of an ideological policy that DOJ calls community 
integration for everyone, not for those who want it, for 
everyone.
    As has been already discussed, the rationale for bringing 
these cases, including the one in Virginia, lies in the ADA. 
The case in Virginia involved all 1,000 residents, more than 
1,000 residents of all five ICFs. And while indeed the ADA does 
require care in most integrated setting appropriate to the 
individual's needs, at the same time the Supreme Court pointed 
out that nothing in the ADA or its implementing regulations 
condones termination of institutional settings for persons 
unable to benefit--to handle or benefit from community 
settings. That is the piece of the ADA and homestead that we 
feel is not appropriately recognized, the right of choice, 
individual choice.
    As Caroline made clear in her testimony, DOJ is not the 
only Federal entity that files class actions involving the 
residents of ICFs. Protection advocacy, attorneys, government 
funded by the HHS in the first instance also use Federal 
dollars to file class actions having filed more than 30 over 
the past 25, 30 years. They bring these cases under rule 23 
(b)(2) of the Federal rules, which sweeps all individuals who 
reside in ICFs into the suit, with neither advanced notice nor 
the right to out. The effect is to vitiate the family's right 
to choice.
    Let me talk a little bit about Virginia because its 
experience is apropos to that and the other States as well. 
Before filing the case, DOJ issued a report in which they 
indicated they consulted with a whole laundry list of people in 
the system. The only people not mentioned in that list and not 
consulted were the family members of the residents of the ICF. 
DOJ then pursued its case on behalf of everyone despite the 
survey showing that a mere unanimous opposition to the family 
to moving from their care.
    DOJ than opposed our so-called right to intervene by posing 
this motion to intervene, forcing families to raise $125,000 
just to hire an attorney. While we won the intervention motion, 
the judge ignored our opposition and agreed to settlement 
negotiated between DOJ and Virginia. The agreement for those 
who wish to remain in ICFs forces us to choice in Northern 
Virginia between a local community placement, or an 
institution, or a facility that is 160 miles away, simply not 
reachable.
    The agreement itself called for the development of a 
closure timetable not tied to the creation of sufficient 
community resources to handle the individuals. As a result, 
people were placed in lower cost areas much farther away from 
families and with less oversight. Because the community was not 
ready, studies have shown that people leaving facilities have 
experienced a mortality rate that is 88 percent higher than 
those who remained in the facilities.
    Well, let's look at other outcome in a sense. If you look 
at since 1990--the early 1990s, VOR and others have cited 
academic studies in multiple investigative reports appearing in 
newspapers from the San Francisco chronicles, to the Georgia 
papers, to the New York City Times documenting higher rates of 
mortality and abuse of people forced to leave facilities.
    DOJ and the P&A attorneys ignored these reports. Now just 2 
months ago, HHS issued a report that found that there are 
quote, ``systemic problems'' end of quote, that place the 
health and safety of residents group homes at risk of serious 
harm.
    So Chairman Goodlatte asked earlier what we would recommend 
to the committee. Let me just recommend two things in closing. 
One, Chairman Goodlatte sent a letter to DOJ essentially asking 
them to hold further actions until they identify the causes of 
deaths and abuse and remedy them. And we fully support that and 
urge the committee to follow up with the Department of Justice.
    As far as legislation goes, the Goodlatte-Frank bill does 
not address Federal Rules of Civil Procedure. They would 
require notice and opt out before filing a class action. And I 
might point out in closing that there are in fact other 
situations where the Federal Government creating a right to 
bring class action limited the rights in that.
    So in both the Fair Labor Standards Act, the age 
discrimination and employment act, permit class actions only 
for those who opt in, and the Magnuson Moss act of the Federal 
Trade Commission requires a minimum of 100 plaintiffs. Thank 
you very much.
    Mr. King. Thank you, Mr. Kinzler, for your testimony as 
well. And the chair will now recognize himself for his 5 
minutes of questioning. I turn directly to you to, Mr. Kinzler, 
and ask you, do you have any data on the numbers of 
institutions that have been closed as a result of class action 
lawsuits across this country?
    Mr. Kinzler. Well, I don't have--I have data on the number 
of actions brought by P&A and the Department of Justice, but I 
don't have the actual numbers closed. There have been since 
2009 DOJ has filed more than 40 actions. They are not all class 
actions, they participate in other actions as well. For 
seeking--essentially seeking the closure of facilities.
    P&As have brought in excess of 32, 33 or more class actions 
again seeking--effectively seeking the closure. When one talks 
about, as we have heard earlier, the notion of class actions 
remedying abuse in facilities, since 1996 not one protection 
advocacy case has contained a claim alleging patterns of abuse. 
They have all been designed to close the facilities.
    Mr. King. Could you give us a picture of--you are familiar 
with, Virginia region, could you give us a picture of what it 
looks like in the State of Virginia as a result of all these 
class action lawsuits?
    Mr. Kinzler. Well, this DOJ action called for--let me just 
cite what they said in their investigation so you will 
understand what exactly it is for, they said that the reliance 
on unnecessary and expensive institutional care both violates 
the civil rights of people with disabilities and incurs 
unnecessary expenses.
    So the settlement agreement called for--required the State 
to come up with a plan to close four of five facilities. DOJ 
later pointed out said well, the plan doesn't have to be 
implemented, just have to come up with a plan within 1 year. 
Well, that plan was supposed to be done in consultation with 
the finance--the chairs of the finance--the Senate Finance 
Committee and the House Appropriations Committee.
    That plan was submitted either the same day or the day 
after the settlement agreement was agreed to between DOJ and--
so what they proceeded with now is to close facilities. And as 
I said you now have Northern Virginia and the south side that 
are already closed, one is going to remain open. But our choice 
if we wanted institutional care was to go to the facility where 
Martha's sons originally were, which is approximately 160 miles 
away it is just not feasible to get to.
    Mr. King. Were there any precedents established or any 
indication in any of these class action lawsuits that you are 
aware of that actually turned this thing in other direction 
that maybe fell down in favor of the institutionalized?
    Mr. Kinzler. Yes. There are a couple of interesting cases, 
there was a recent district court case in Florida which held 
that the Department of Justice under Title II of the ADA has no 
jurisdiction even to bring the cases and dismissed the case. 
That is the only court that has done that, but it does it using 
considering the language where one section of the Title II 
says--identifies the Department of Justice, the second one 
doesn't. But there are cases where there have been no 
certification, the judge has--after hearing from families has--
refused to certify them, certify a case.
    And there have been cases, there was a case in Florida--
another--case in Arkansas which was dismissed because the judge 
found the case was being brought on behalf of a group of people 
who didn't want the case to be brought.
    Mr. King. Thank you, Mr. Kinzler. I appreciate it.
    I would now like to turn to Ms. Lahrmann, you made the case 
that these are highly particularized claims, that these are 
individuals. And I want to know if you would like an 
opportunity to respond, unless there is a bit of a disagreement 
between you and Ms. Barkoff on this, do you care to respond to 
her testimony or anything you would like to add with regard to 
the individual situation?
    Ms. Lahrmann. Yes. Ranking Member Nadler spoke about the 
balance here. And really the balance is by bringing these 
claims as individuals. You know, you cannot bring a lawsuit and 
then draw--I mean you can obviously, because they are doing it, 
but when you are drawing in people who have completely 
different needs. You know, Ms. Barkhof I saw her speak at a 
disability seminar in Washington last year. Her brother is 
extremely high functioning compared to my children.
    My children are profoundly quadriplegic, they operate at 
the level of an infant, they have seizures. At any moment I 
might have to rush them to the emergency room at times. I mean, 
I'm afraid sometimes to take them certain places because of 
that. So I can't say that my children can live in a community 
to the degree that her brother can. That is why I think these 
type of cases should be brought on on an individual basis. I 
mean it wouldn't be right for me to bring a class action saying 
that everyone should live in an immediate care facility if 
someone is very high functioning, I don't think that is right. 
So I just think there needs to be some give and take here and 
it needs to be done individually.
    Mr. King. Thank you, Ms. Lahrmann, I have run out of time. 
And the chair would now recognize the ranking member of this 
subcommittee, Mr. Cohen.
    Mr. Cohen. Thank you, Mr. Chairman. I apologize for my 
tardiness. Firstly I would like to introduce my statement, I 
would have read it at the proper time but just introduce it for 
the record. This is a very difficult subject.
    Mr. King. Without objection so ordered.
    Statement Submitted by Mr. Cohen of Tennessee. This 
material is available at the Committee and can be accessed on 
the committee repository at: https://docs.house.gov/meetings/
JU/JU10/20180306/106917/HHRG-115-JU10-20180306-SD005.pdf
    Mr. Cohen. In that statement I do address the difficulty, 
it is not a clear-cut issue on what to do. We want to deal 
properly with people with disabilities. We want to hold our 
courts open to different actions.
    My father was a psychiatrist and the superintendent of a 
hospital many years ago and had an action filed against him by 
some civil rights attorneys under the idea that people in the 
institution should be dismissed. And taking psychotropics, et 
cetera. That was kind of en vogue in the 70s. The idea was that 
they would be cared for in the community, but the community 
didn't care for them and the money didn't flow with them. It 
didn't work. They couldn't get their monies, they didn't get 
medical attention and they become on the streets, homeless and 
wounded. There was a story I know my father liked and told me 
about called People Dying With Their Rights on. So tough 
situation.
    The opening statement also questions why this is a very 
important issue why when we just recently learned 13 Russians 
were indited for interfering with our elections. And it is 
clear and all of our security people know and have said that 
that is what the Russians want to do is disrupt democracy and 
our government. Why this committee has not held hearings on 
preserving our electoral system and making it safe from attack 
from the Russians, I would just raise that here and I see the 
chair my friend the chair is here of the committee, no more 
serious attack has been made than Pearl Harbor, the serious, no 
question every--but attacking our electoral system and trying 
to destroy democracy and no response from this committee at 
all. It is shocking.
    Ms. Barkoff, let me ask you this, Mr. Kinzler asserted that 
the Department of Justice and the P&A system have undermined 
the second prong of Olmstead about filing lawsuits that deny 
individual choice as to whether an ICF resident should be 
placed in the community based program. Do you have a response 
to that?
    Ms. Barkoff. Yes, I do. Thank you.
    First of all, in each of the lawsuits, and I would really 
encourage you to look at the settlement agreements and the 
decisions in this case, people's right to choose an ICF is not 
taken away. The point that you just raised, Congressman Cohen, 
about why these lawsuits are important. We can't--we need to 
address the lack of community services. And so when we were 
talking about early lawsuits under the constitution, what it 
didn't do was give a tool to expand communities. These 
lawsuits, I would encourage you to look at Virginia where there 
are 40 pages of detailed provisions about expanding community 
services in there. The provisions that relate to people inside 
of institutional settings, inside of ICFs is all about a 
process for individual choice. Again, I completely agree with 
Ms. Lahrmann that we need to look at people's different needs 
and people have different needs and choices. There is an 
individualized process where people are given information about 
what the options are, the ability to meet with other family 
members, both who are inside institutions and who have made the 
choice to move to the community, address what that process is 
like, what those kinds of concerns are like for people with 
disabilities themselves who are interested in speaking with 
other people with disabilities, there are those peer-to-peer 
and family-to-family supports. Opportunities to actually go and 
visit and look at a placement. So very much the individual 
choices is an essential and critical piece.
    There is not required closures in any agreement that I am 
aware of and that is absolutely the case in Virginia. Far 
predating the Department of Justice getting involved, the 
legislature had developed a plan, they had rebuilt the 
Southeastern Virginia Training Center. The institutions had 
been built for 6,000 people, five institutions built for 6,000 
people, and in 2012 there were 1,000 people left.
    States across the country have been consolidating those 
services, not based on class action lawsuits, but based on the 
fact that the census has been dwindling there as there are more 
opportunities for people with the most complex needs, people 
with an ICF level of care, people who have 24/7 needs to live 
in the community. That is what has been driving closures and 
the over 200,000 people who are sitting on wait lists. Every 
person who has a right to be in an ICF immediately who meets 
that ICF level of care and States are figuring out how do we 
best use our resources to meet those needs.
    Mr. Cohen. Thank you. Let me ask you this. Are you familiar 
with the protections that are in place to ensure that a 
resolution of a class actions suit is implemented?
    Ms. Barkhoff. Yes, I am. And there are opportunities both 
informally in advance of any kind of lawsuit being filed, as 
well as formal protections in the Federal rules. There are 
opportunities to participate before any kind of settlement 
agreement can be reached. A court has to hold a hearing to give 
all kinds of stakeholders opportunities to give input.
    In Virginia there were several thousand people who showed 
up, thousands of letters and that impacted the agreement. There 
is opportunity for intervention and a judge must make findings 
in writing about the fairness of the agreement of different 
people's interests and how those are being balanced.
    And for the Department of Justice there are already 
statutory requirements to have letter of findings publicly 
issued to engage the stakeholders and by statute they are 
required before filing any litigation to attempt to resolve 
those, and again then hold a public hearing. Intervention is 
common and it already exists in the rules if someone's rights 
are not already being represented by the existing parties.
    Mr. Cohen. Thank you very much.
    Ms. Barkhoff. Thank you.
    Mr. King. Thank you. The chair will now recognize the 
Chairman of the Committee, Mr. Goodlatte, of Virginia.
    Chairman Goodlatte. Thank you, Mr. Chairman.
    Ms. Bryant, I can remember when I learned that Tyler had 
died and was so moved by everything that had gone before that 
to try to create a situation where that circumstance didn't 
arise.
    Couple of things. First, there have been other patients in 
this short period of time since these move have begun who have 
also I would say not survived the moves. Is that true?
    Ms. Bryant. Yes, sir. We had a 93-year old woman who lived 
next door to Taylor and Tyler at the training center and she 
was also forced to move at age 93 and she died within weeks. I 
think Tyler was the tenth death of training center out when 
they were trying to close that building.
    Chairman Goodlatte. Just from the Lynchburg training 
center.
    Ms. Bryant. Yes, from the Lynchburg training center. Tyler 
was the tenth death.
    Chairman Goodlatte. And how many were in the building 
before they closed?
    Ms. Bryant. Forty-two, when we got the letters.
    Chairman Goodlatte. Ten out of forty--two?
    Ms. Bryant. I am not sure if they were all central, but we 
have to think that Hiram Davis received people from south side 
as well and possibly from northern.
    Chairman Goodlatte. Can you explain the difference in the 
care between the two facilities where your son resided?
    Ms. Bryant. Oh, it is night and day difference. Central 
Virginia Training Center it was a skilled nursing facility, it 
was ADA compliant, it had been renovated in 2011, they lived in 
a first floor fire egress, 5-star facility with only one 
deficiency in 2016, beautiful rooms, bathroom, physical 
therapy, beautiful paint, open windows, light.
    Chairman Goodlatte. Did you consider that you and your sons 
were part of a community there?
    Ms. Bryant. Oh, definitely. In fact, he was 20 minutes away 
from me at work, 35 minutes away from us at home. We visited 
regularly. My mother visited often. My grandchildren went to 
see the boys there. I mean, it is like being on a college 
campus. You are not locked down, it is very different.
    Chairman Goodlatte. And the change was very sudden, it came 
far sooner than you had originally had been advised?
    Ms. Bryant. Yes. I rode in the ambulance with Taylor. The 
physician rode in the ambulance with Tyler. They were so 
worried about Tyler dying en route that I was asked to rent a 
helicopter for $10,000 so Tyler could fly to Hiram Davis 
because they were concerned about Tyler dying just to go down 
the road.
    Chairman Goodlatte. Thank you.
    Ms. Lahrmann, why do P&As push for the elimination of ICFs 
of it is known that some individuals with profound intellectual 
and developmental disability needs institutional care to live?
    Ms. Lahrmann. I have received that question so much by 
families that I am trying to make aware of their rights. I am 
just a volunteer parent here and I am serving as somebody who's 
going around and explaining to them what is happening with 
these P&As. I don't know. I think it is ideological. I think 
that there are people that truly believe that everybody can 
live in the community regardless of their needs. I have heard 
those type of statements.
    I would like to say that P&As do force closings by these 
actions, even before the actions are brought. States are so 
afraid they don't want to get bogged down in this litigation. 
In Ohio two centers closed before the litigation was even 
brought to try to keep this litigation from happening and DRO 
still went ahead and brought the lawsuit.
    DRO was the P&A of the individuals whose centers closed, 
but DRO did not reach out to the people who were coming to the 
State legislature and saying, we don't want our center to 
close. They do not represent those individuals to retain their 
Medicaid accommodations. So no, DRO was more than happy to have 
those centers close. And you know, in this case what they are 
looking for is a single stroke solution to move people out.
    Chairman Goodlatte. So why are motions to intervene an 
important tool for families facing a class action lawsuit that 
they don't want to participate in?
    Ms. Lahrmann. If you--in my testimony in my larger 
testimony, the judge in our case, Judge Edmund Sargus ruled 
that without our intervention, our rights would not have been 
protected in this lawsuit. And in the Ligas case in Illinois, 
the judge basically said the same thing, without the 
intervention of their families, their rights would have been 
overlooked entirely.
    Chairman Goodlatte. Mr. Kinzler, per your statement, the 
Department of Justice offered a cost argument in the settlement 
negotiations with the State of Virginia, did they not? Claiming 
that the State could serve nearly 3 people in the community 
from each person in a training center?
    Mr. Kinzler. Right, that as an argument----
    Chairman Goodlatte. Let me ask my question. Do statements 
like this essentially ignore the extensive care and services 
that persons with substantial disability like your son need.
    Mr. Kinzler. Yeah. They tend to be apples to oranges 
comparison as assumed in your question. First of all, if you 
look at the community, people with this level of disability are 
5 percent or less of the disability community. In the 
facilities, they are--I will give you an example of the 
demographics at Northern Virginia Training Center when it 
existed, 87 percent of the people had a diagnosis of severe 
profound intellectual disability.
    In addition to that, 155 had two or more conditions, 
ranging from epilepsy, cerebral palsy, behavior disorders. One 
hundred thirty-nine couldn't dress themselves, 139 couldn't 
feed themselves or go to the toilet by themselves. So you're 
dealing one with a different population but also with a 
different constellation of services.
    Chairman Goodlatte. Thank you.
    Mr. Chairman, my time has expired. I wonder if I might ask 
a question or two of Ms. Barkoff?
    Mr. King. The chairman is recognized for so much time as he 
may consume.
    Mr. Cohen. I second that.
    Chairman Goodlatte. Thank you Mr. Chairman. The gentleman I 
hope will also be given that accommodation if he so desires.
    Ms. Barkoff, in your written testimony you state, that ``we 
have seen abuse and neglect in both institutions and community 
settings.'' Are you aware of any P&As bringing class actions to 
halt these systemic problems at group homes or other community 
based settings?
    Ms. Barkhoff. So I am aware of a lot of advocacy that 
happens, you know. P&As spends maybe about 5 percent of their 
resources and time doing class actions. Now most of their----
    Chairman Goodlatte. But any with regard to----
    Ms. Barkhoff [continuing]. To abuse in group homes? I don't 
know of any class actions. I know of a lot of advocacy that 
happens there, in terms of what tools we have to bring 
litigation that the ADA certainly is not something that we 
could use to address that, the constitution that we have used 
in challenging State confinement. So again, as I described in 
my testimony, those don't apply in group homes. People with 
disabilities and the P&As would welcome the opportunity to have 
legal tools.
    Chairman Goodlatte. Class action lawsuits can be brought 
against public or private institutions, can they not?
    Ms. Barkhoff. Class action lawsuits can be brought public 
entities for funding, so when----
    Chairman Goodlatte. You are not answering my questions.
    Ms. Barkoff. I am sorry.
    Chairman Goodlatte. I want you to answer the question about 
whether or not private facilities can have class actions 
brought against them by an P&A?
    Ms. Barkhoff. Yes. For example----
    Chairman Goodlatte. I have a follow-up question.
    Ms. Barkhoff. For example the group homes in New York State 
that's an example of thousands of people with psychiatric 
disabilities who are in large private group homes called adult 
care homes where people's right were being violated, people are 
unnecessarily there.
    Chairman Goodlatte. Any in Virginia that you are aware of.
    Ms. Barkhoff. I am not aware in Virginia. I know in private 
nursing homes where people with intellectual disabilities are 
not getting active treatment so my organization is involved in 
a lawsuit in Texas where thousands of people with intellectual 
disabilities and development disabilities are inappropriately 
placed in nursing homes. The care they are getting in nursing 
homes are inadequate.
    Chairman Goodlatte. Okay. Let me just--but not the small 
group homes or the community-based programs. So here is my 
question: Doesn't the lack of such cases, despite numerous 
reports of such abuse, some of which you have just cited, 
throughout the years, including a recent HHS report issued 
earlier this year, suggests that the P&As have an anti-
institution agenda rather than an agenda to protect all people 
with IDD from abuse and to promote choice?
    Ms. Barkoff. No, I don't think that is the case. Again, the 
P&As have been working very hard around ensuring protections in 
the community. This report came out, and already, the P&As and 
other advocates around community services have approached the 
Centers for Medicare and Medicaid Services and the 
Administration For Community Living and absolutely asked to 
work with them on additional regulations for the communities.
    Chairman Goodlatte. Should families like Ms. Lahrmann and 
Ms. Bryant and Mr. Kinzler have the opportunity to have advance 
notice of a class action lawsuit?
    Ms. Barkoff. I think that there are already opportunities 
for notice. I know that Congress has included in appropriations 
opportunities for notice, and I do think that----
    Chairman Goodlatte. You don't object to that?
    Ms. Barkoff. I don't know exactly what the proposal would 
be, but I do think engaging stakeholders and making that public 
is important.
    Chairman Goodlatte. And what about the right of families to 
opt out and deal separately, individually with the State, in 
the courts or through private negotiations? Should they have 
that right?
    Ms. Barkoff. The reason that Rule 23(b)(2) classes don't 
allow opt out is because it create changes across the board in 
policies that defendants put in place. It is----
    Chairman Goodlatte. But----
    Ms. Barkoff [continuing]. Unworkable to create an opt-out. 
And in addition, many cases now, as courts look at how to 
define cohesive classes, don't include people who oppose moving 
to the community. And the case that Ms. Lahrmann referred to, 
the class definition does not include people who would oppose.
    So already, the existing class action rules create 
opportunities to narrow classes to people who are cohesive when 
people are not included as part of the class, they----
    Chairman Goodlatte. So you don't object----
    Ms. Barkoff [continuing]. Have the opportunities----
    Chairman Goodlatte. You don't object to----
    Ms. Barkoff. I think the existing rules already.
    Chairman Goodlatte. They are just perfect.
    Ms. Barkoff. And the rules that apply to class actions 
across-the-board provides the type of protections that have 
been interpreted by the courts to make sure people have----
    Chairman Goodlatte. Mr. Kinzler, do you want to respond to 
that?
    Mr. Kinzler. Yeah. There is no requirement for advance 
notice, so advance notice is not afforded.
    As I mentioned, the DOJ situation, they list people they 
talk to in the administration, in the community, staffs, 
administrators. Everybody, except parents. So DOJ and P&A 
typically do not provide any notice. And both the special 
litigation section and P&As have issued things that all read 
like this community for everyone, for everything.
    Chairman Goodlatte. Ms. Lahrmann, are you satisfied with 
the rules regarding the ability to opt out?
    Ms. Lahrmann. No, I am not. I mean, I have had to raise 
$100,000 to try to get into this lawsuit with other families. I 
mean, that has been an incredibly stressful situation for me 
for the past two years.
    I will tell you, that the lawsuit--I mean, the judge said 
our rights were not protected until we intervened. The class 
definition that Ms. Barkoff--and actually her organization is 
suing the State, along with Disability Rights Ohio--it does say 
the class does not include people who don't oppose it. But how 
are you going to know if they oppose the community or not if 
you don't ask them? And none of these families even know that 
the class action is taking place. I mean, these are 6,000 
people all over the State of Ohio.
    When DRO announced their lawsuit, they actually did it in a 
private press event. I found out about it, and I went to the 
event. And the executive director said, You know, Ms. Lahrmann, 
this is really supposed to be a private press event, but I will 
let you stay. I mean, my children are affected by this class 
action.
    Chairman Goodlatte. Ms. Barkoff, I am very glad that your 
brother is no longer in an institution where I think, based on 
what you have told me, was very inappropriate for him to be 
there. And I think there are a lot of other people who are in 
those circumstances as well. But I also believe that the 
process by which this has been undertaken is very inflexible, 
doesn't recognize the fact that there are many people, probably 
a minority of all the people who are in facilities like this, 
but many, many people represented by the three people with you 
today, that it is inflexible.
    It does not recognize their extraordinary circumstances and 
the needs of their children. And I think that we have to work 
together to find more flexibility for them so they are not 
swept up and treated the same way as other people who may well 
deserve to be in a class action.
    I support legislation separate and apart from this issue 
that says that people in a class action have to have similar 
harm, similar circumstances to be included in a class, 
otherwise, they should be treated separately, individually, as 
most of us would want to be if we were sued by somebody.
    So thank you. Thank you, Mr. Chairman.
    Mr. King. Thank you, Mr. Chairman. The chair will now 
recognize the ranking member, Mr. Cohen, for unanimous consent 
requests.
    Mr. Cohen. Thank you. I have a series of statements from 
different groups of concern, including the American Association 
of People with Disabilities and Autism Society, et cetera, 
Epilepsy Foundation, I would like to enter into the record.
    Mr. King. Without objection, all of these documents will be 
included into the record. And this----
    Mr. Cohen. Thank you.
    Letters Submitted by Mr. Cohen of Tennessee. This material 
is available at the Committee and can be accessed on the 
committee repository at: https://docs.house.gov/meetings/JU/
JU10/20180306/106917/HHRG-115-JU10-20180306-SD005.pdf
    Mr. King. Thank you, Mr. Cohen.
    And this concludes today's hearing. And thank you to all of 
our witnesses for your testimony and your responses to our 
questions.
    Without objection, all members will have 5 legislative days 
to submit additional written questions for the witnesses or 
additional materials for the record.
    This concludes today's hearing. Adjourned.
    [Whereupon, at 11:17 a.m., the subcommittee was adjourned.]
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