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Ball v. Kasich

United States District Court, S.D. Ohio, Eastern Division

March 30, 2018

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

          Elizabeth Preston Deavers Magistrate Judge



         This matter is before the Court on Plaintiffs' Motion for Class Certification, which is, for the reasons that follow, GRANTED IN PART AND DENIED IN PART. (ECF No. 42.)

         I. OVERVIEW

         This case was filed by Disability Rights Ohio and the Center for Public Representation on behalf of Plaintiffs Phyllis Ball, Antonio Butler, Caryl Mason, Richard Walters, Ross Hamilton, Nathan Narowitz, and the Ability Center of Greater Toledo ("Plaintiffs"). Plaintiffs contend that the State of Ohio unnecessarily institutionalizes people with intellectual and developmental disabilities in violation of federal law. Plaintiffs filed this action on behalf of themselves and other similarly situated individuals with intellectual and developmental disabilities (1) who currently reside in Intermediate Care Facilities ("ICFs") with eight or more beds ("Large ICFs") throughout Ohio, but who are willing and able to live in the community, and those (2) who are in community-based care, but who are at serious risk of placement in a Large ICF

         Plaintiffs seek declaratory and injunctive relief under Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12132 et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 794 etseq., and the Social Security Act, 42 U.S.C. §§ l396n(c)(2)(B) and (C), and are asking for "a single injunctive order requiring Defendants to remedy systemic deficiencies that deny class members their rights under federal law." (Pls.' Mot. for Class Cert. At 3, ECF No. 42.)

In particular, the individual Plaintiffs seek the opportunity to leave segregated ICFs, or to avoid unnecessary and unwanted admission to these facilities, through the provision of integrated residential, employment, and day services. A single injunction requiring the Defendants to develop and deliver these services in a manner sufficient to avoid class members' unnecessary institutionalization would resolve the alleged legal violations and create alternatives that benefit the class as a whole.


         Plaintiffs name as Defendants in this lawsuit Ohio Governor John Kasich, Director of Opportunities for Ohioans with Disabilities Kevin Miller, Director of the Ohio Department of Medicaid John McCarthy, and Director of the Ohio Department of Developmental Disabilities John Martin ("Ohio Defendants"), After full briefing by all interested groups or parties (ECF No. 68, 73, 79; 130, 131, 163), the Court permitted intervention by the Ohio Association of County Boards of Developmental Disabilities ("DD Boards") and by a group of guardians of individuals with developmental and intellectual disabilities who currently reside in Large ICFs in Ohio ("Guardians") (ECF No. 261).

         Early in the life of this action, Plaintiffs filed their Motion for Class Certification (ECF No. 42), which this Court granted as unopposed (ECF No. 91). The Ohio Defendants moved for expedited reconsideration of that decision (ECF No. 92), which this Court granted (ECF No. 98). The parties then engaged in mediation, which was ultimately unsuccessful in settling the entire case, but focused various issues. The parties also engaged in significant discovery.

         The Court set a briefing schedule on Plaintiffs' Motion for Class Certification, and Memoranda in Opposition were filed by the Ohio Defendants (ECF No. 273), the DD Boards (ECF No. 275), and the Guardians (ECF No. 278). Based on the mediation, the additional parties added to the case, and the discovery obtained, Plaintiffs modified their definition of the requested class in their Reply in Support of their Motion for Class Certification. (ECF No. 283.) With the Court's permission (ECF No. 288), the ARC of the United States, the ARC of Ohio, and the Judge David L. Bazelon Center for Mental Health Law ("ARC") filed a brief as amicus curiae in support of Plaintiffs' Motion for Class Certification (ECF No. 289).

         The Ohio Defendants, the DD Boards, and the Guardians all filed Supplemental Memoranda in Opposition to Plaintiffs' Motion for Class Certification to address the modified class definition proposed in Plaintiffs' Reply. (ECF Nos. 291, 293, 296, respectively.) With the Court's permission (ECF No. 261), the Voice of the Retarded ("VOR") filed a brief as amicus curiae in opposition to Plaintiffs' Motion for Class Certification (ECF No. 294).

         Plaintiffs then filed their Final Reply in Support or Their Motion for Class Certification. (ECF No. 300.)


         A. Plaintiffs

         Plaintiffs contend that the Ohio Defendants discriminate against them and a group of similarly situated individuals in violation of the integration regulations of the ADA and the Rehabilitation Act. In Olmsteadv. L.C. ex rel. Zimring, 527 U.S. 581 (1999), the United States Supreme Court addressed what actions constitute discrimination in violation of the integration regulations. The Olmstead Court framed the issue as follows:

In die [ADA], Congress described the isolation and segregation of individuals with disabilities as a serious and pervasive form of discrimination. 42 U.S.C. §§ 12101(a)(2), (5)). Title II of the ADA, which proscribes discrimination in the provision of public services, specifies, inter alia, that no qualified individual with a disability shall, "by reason of such disability, " be excluded from participation in, or be denied the benefits of, a public entity's services, programs, or activities. § 12132. Congress instructed the Attorney General to issue regulations implementing Title II's discrimination proscription. See § 12134(a), One such regulation, known as the "integration regulation, " requires a "public entity [to] administer... programs ... in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 CFR § 35.130(d). A further prescription, here called the "reasonable-modifications regulation, " requires public entities to "make reasonable modifications" to avoid "discrimination on the basis of disability, " but does not require measures that would "fundamentally alter" the nature of the entity's programs. § 35.130(b)(7).

Id. at 581, syllabus.

         The Olmstead Court held that, under Title II of the ADA, States are required to provide community-based treatment services for persons with disabilities when

(1) the State's treatment professionals have determined that community placement is appropriate,
(2) the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and
(3) "the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities."

See Id. at 607.

         Several Plaintiffs allege that they reside in Large ICFs, are appropriately qualified to receive community-based treatment, and "seek the opportunity to leave segregated ICFs." (Pls.' Mot. for Class Cert, at 3, ECF No. 42.) One Plaintiff, whose aging parents care for him in their home, alleges that he is at serious risk of ICF placement when his parents can no longer care for him. Plaintiffs provide a large amount of evidence, which, they contend, shows that "Ohio's service system for people with intellectual and developmental disabilities leaves thousands of Ohioans who prefer to live in the community unnecessarily institutionalized in Large ICFs, or at serious risk of unnecessary institutionalization in these facilities, in violation of federal law." (Pls.' Reply at 1, ECF No. 283.)

Plaintiffs contend that, as a result of Defendants' administrative, planning, policy, and funding decisions, Ohio has failed to provide the home and community-based services necessary to avoid class members' unnecessary segregation. The State has not paid for or implemented a sufficient number of waivers[1] within its home and community-based service system to meet class members' demonstrated need. It has employed a funding and rate structure that incentivizes unnecessary institutionalization. It has adopted counseling processes that do not provide a real choice between institutionalization and home and community-based services. Defendants continue to license, maintain, and fund a system of large, segregated ICFs providing restrictive facility-based residential, employment, and day services. The size of Ohio's ICF system makes it a national outlier. These discrete actions and inactions by the State harm a large group of people with intellectual and developmental disabilities and subject them to unnecessary segregation.


         Plaintiffs conclude that "hundreds, if not thousands, of people with intellectual and developmental disabilities in Ohio remain segregated in Large ICFs, even though they qualify for community-based services and have chosen or expressed interest in learning more about such alternatives to institutional care." Id. at 5. Plaintiffs offer, inter alia, the following evidence to support their position:

Thousands of adults live in large ICFs across Ohio. In total, Defendants' own figures show that there are 6, 169 public and private ICF beds, and 5, 901 residents of these facilities, across Ohio. Doc. 273 at 14, 17; see also Doc. 42 at 11, Although Ohio has gradually reduced the size of its state-operated ICFs ("developmental centers"), Defendants continue to license, fund, and sustain a substantial network of private ICF beds. For at least twenty years, the number of individuals in private ICFs has remained relatively stagnant: The total number in SFY [State Fiscal Year] 1995 was 5, 788; by SFY 2015, the number had actually increased to 5, 877. Email from Clayton Weidner, Ohio Dep't of Developmental Disabilities, to Joshua Anderson, Ohio Dep't of Developmental Disabilities at 1-2 (July 23, 2014), attached as Exhibit 1.


         B. ARC

         ARC, which filed an amicus brief in support of Plaintiffs' Motion for Class Certification, explains that "[t]he need to maximize the availability of these community-based services for the benefit of people with [intellectual and developmental disabilities] strongly counsels in favor of granting Plaintiffs' Motion for Class Certification" (ARC Br. in Support of Class Cert, at 5, ECF No. 289.) ARC clarifies its position:

While the Court need not explore the merits in depth at this stage of the case, it is important in connection with the motion for class certification that the Court fully understand the relief Plaintiffs seek on behalf of Ohioans with disabilities who are currently unnecessarily institutionalized or at risk of such institutionalization. The research supporting community-based services and supports for people with disabilities as well as evidence from other states that have made this transition successfully clearly demonstrates that people with significant disabilities who require regular, intensive supports greatly benefit from living in community settings.
Experience shows that states can effectively shift their focus and funding priorities from institutional to community-based services without causing undue disruption to the residents who transition from institutions. Indeed, the lesson from those experiences is that residents and families are more satisfied with integrated community alternatives -even families that had initially opposed the changes. As a recent report from the American Association on Intellectual and Developmental Disabilities (AAIDD) and the Association of University Centers on Disability (AUCD) noted:
Over the past half-century we have learned that large institutions do not promote positive outcomes for people with [intellectual and developmental disabilities] and limit community interaction and involvement for some of our most vulnerable citizens. These settings have negative outcomes for their health, well-being, quality of life, independence, and overall happiness. As a society we have moved from providing residential supports for people with intellectual and other developmental disabilities in the large, segregated, isolated institutions of the first half of the 20th century ... to smaller group homes, shared apartments, and individually-owned or rented houses or apartments.
Community Living and Participation for People with Intellectual and Developmental Disabilities: What the Research Tells Us (My 24, 2015) (hereafter AAIDD/AUCD Report), at 2, available at g3.pdf.

Id. at 4-5.

         C. Defendants

         The Ohio Defendants and the DD Boards agree that "community-based services are a good thing, " referring to this as "common ground" with Plaintiffs and ARC. (Ohio Defs.' Supp. Mem. in Opp. at 6, ECF No. 291.) The Ohio Defendants, however, contend that the statistical evidence does not support Plaintiffs' position that Ohio has failed to provide an ever increasing number of community-based services to individuals with intellectual and developmental disabilities. Rather, the Ohio Defendants provide statistics they contend show the increase in community care and decrease in ICF services as follows:

Plaintiffs overstate the current role ICFs play in Ohio's system. Describing ICF numbers as "relatively stagnant, " Pls.' Supp. 5, is a half-truth at best. By looking solely at Ohio's raw ICF numbers, Plaintiffs ignore the expansion of Ohio's system since Olmstead. In 1999, when Olmstead was decided, Ohio had less than 14, 000 people with developmental disabilities receiving Medicaid funding. See Weidner Aff. Exs. A-B, Doc. 273-4. And 59% of those people were living in ICFs. Id. By 2016, the service population had more than tripled, with over 42, 000 Ohioans receiving Medicaid funding. See Id. But waiver participants made up the strong majority: 85%. Id. And this trend projects forward. Over the past three years, Ohio has averaged 205 new waiver participants to only 32 new ICF participants each month. McGonigle Aff. ¶¶ 3-4, Doc. 273-9. Thus, given the overall growth of Ohio's service population, any "stagnation" in raw ICF numbers, is, in reality, a dramatic proportional decrease.

Id. at 7 (noting that "even looking only at raw figures, the number of people in Ohio ICFs has gone down since Olmstead" because of the interplay between private and public ICFs). Further, the Ohio Defendants explain that "Ohio has encouraged ICF downsizing, " asserting that:

Ohio has provided rate incentives to ICFs that have committed to either (1) converting ICF beds to waivers or (2) transitioning people from ICFs with 16 or more beds to smaller ICFs. Ohio Resp. 13-14; Ohio Rev. Code ยง 5124.67(A)(1). These efforts have led to many ICF beds being voluntarily converted or downsized. So far, over 450 ICF beds have been converted to waivers and ...

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