Rolland, et al v. Patrick, et al

Filing 920100119

Opinion

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var WPFootnote1 = '                   Pursuant to Fed. R. App. P. 43(c)(2), several defendants\
have been substituted for their predecessors in office.\
'

var WPFootnote2 = '                   To avoid confusion, we will call the appellants the\
"Groton parents" and reserve the term "plaintiffs" for the\
plaintiff class, the appellees in this case.\
'

var WPFootnote3 = '                   The parties agreed that a magistrate judge would handle\
all proceedings, Rolland v. Cellucci (Rolland I), No. 98-3028-KPN\
(D. Mass. Dec. 3, 1998) (order keeping case before magistrate\
judge), so we refer to the magistrate judge as the district court. \
The magistrate judge has issued a number of orders over the years\
and is very familiar with the case. See Rolland XI, 562 F. Supp.\
2d at 177 n.1 (listing decisions).\
'

var WPFootnote4 = '                   See, e.g., Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355 (codified as amended in scattered sections of 29\
U.S.C.); Education of All Handicapped Children Act of 1975, Pub. L.\
No. 94-142, 89 Stat. 773 (codified as amended at 20 U.S.C. §§ 1405-06, 1415-20); Developmental Disabilities Assistance and Bill of\
Rights Act, Pub. L. No. 95-602, tit. V, 92 Stat. 2955 (1978)\
(codified as amended in scattered sections of 42 U.S.C.); Fair\
Housing Amendments Act of 1988, Pub. L. No. 100-430, 102 Stat. 1619\
(codified as amended at 42 U.S.C. §§ 3601-19, 3631).\
'

var WPFootnote5 = '                   The integration movement argued that the practice in the\
mid-twentieth century of confining the disabled in institutions was\
unnecessary and often harmful. It believed the best and most\
dignified setting for the disabled was their communities. See,\
e.g., J. tenBroek & F.W. Matson, The Disabled and the Law of\
Welfare, 54 Cal. L. Rev. 809, 816 (1966); see also Ricci v. Okin,\
823 F. Supp. 984, 985 (D. Mass. 1993) (reporting the "deplorable\
conditions" the court found when visiting state institutions in the\
1970s).\
'

var WPFootnote6 = '                   Medicaid, created in 1965, uses state and federal funds\
to provide medical services to needy individuals. Rio Grande Cmty.\
Health Ctr., Inc. v. Rullan, 397 F.3d 56, 61 (1st Cir. 2005). \
States can choose whether to participate in Medicaid and some\
optional programs. See Bryson v. Shumway, 308 F.3d 79, 81-82 (1st\
Cir. 2002). Once states do, they must meet applicable federal\
requirements. Rio Grande Cmty. Health Ctr., 397 F.3d at 61.\
'

var WPFootnote7 = '                   See J. Karger, Note, "Don\'t Tread on the ADA": Olmstead\
v. L.C. ex rel. Zimring and the Future of Community Integration for\
Individuals with Mental Disabilities, 40 B. C. L. Rev. 1221, 1229\
(1999).\
'

var WPFootnote8 = '                   The NHRA uses the term "mentally retarded" to refer to\
individuals who have mental retardation or "a related condition" as\
defined in another provision. 42 U.S.C. § 1396r(e)(7)(G)(ii). The\
plaintiffs use the word "developmentally disabled" to reflect more\
precisely who the NHRA and similar provisions in this litigation\
cover. We generally use "developmentally disabled" except to\
accurately represent the text of the NHRA.\
'

var WPFootnote9 = '                   Originally the NHRA required annual reviews of residents. \
Omnibus Budget Reconciliation Act of 1987, Pub. L. No. 100-203,\
tit. IV, 101 Stat. at 1330-198. Congress amended the statute to\
only require PASARR review if a resident\'s condition changes. See\
42 U.S.C. § 1396r(e)(7)(B)(iii).\
'

var WPFootnote10 = '                   The court certified a single class of "all adults with\
mental retardation and other developmental disabilities in\
Massachusetts who resided in nursing facilities on or after October\
29, 1998, or who are or should be screened for admission to nursing\
facilities pursuant to 42 U.S.C. § 1396r(e)(7) and 42 C.F.R 483.112\
et seq." Rolland II, 1999 WL 34815562, at *1-2.\
'

var WPFootnote11 = '                   RISPs act as Rolland class members\' individual service\
plans (ISPs), which state officials generally must develop for\
developmentally disabled individuals. See 115 Mass. Code Regs.\
6.20. ISPs identify physical, developmental, and social goals for\
the person and what services the state will provide to help the\
individual meet those goals. Id. 6.23(4). An ISP team, which\
includes state service coordinators, individuals, their families,\
and their service providers, reviews these plans at least annually. \
Id. 6.21, 6.24.\
'

var WPFootnote12 = '                   Among the 35 class members she surveyed, she found 94\
percent did not receive active treatment as the court had defined\
it.\
'

var WPFootnote13 = '                   After the settlement, DMR\'s name was changed to the\
Department of Developmental Services.\
'

var WPFootnote14 = '                   A service coordinator is a DMR staff member who\
supervises state-provided services for mentally retarded\
individuals. A case manager is the staff member of a University of\
Massachusetts program who coordinates services for individuals with\
other developmental disabilities. See Rolland V, 198 F. Supp. 2d\
at 43, 46. We use "coordinator" to refer to both positions.\
'

var WPFootnote15 = '                   The planning sheet required coordinators to plot every\
aspect of a proposed transition into the community. For example,\
it asked what services and supports the individual would need,\
where the person would live, and where the person would receive\
services. It also asked how the person\'s financial, health-and-safety, equipment, and medical needs would be met in the new\
setting.\
'

var WPFootnote16 = '                   Most of the 92 class members not currently on the List\
lived in three pediatric facilities; the state believed it could\
afford to provide and coordinate active treatment for this group.\
'

var WPFootnote17 = '                   Rule 23(f) now gives parties fourteen days to appeal. \
See Fed. R. Civ. P. 23(f).\
'

var WPFootnote18 = '                   It is true that, "[e]ven after a certification order is\
entered, the judge remains free to modify it in light of subsequent\
developments in the litigation." Gen. Tel. Co. of Sw. v. Falcon,\
457 U.S. 147, 160 (1982); see also Fed. R. Civ. P. 23(c)(1)(C). \
That rule does not modify Rule 23(f)\'s filing deadline for\
interlocutory review of a certification or decertification order.\
              The Groton parents try to rely, first, on Amchem Products,\
Inc. v. Windsor, 521 U.S. 591 (1997). That case discussed courts\'\
obligations when reviewing class certification for settlement only\
and not for litigation. Id. at 620. It does not apply.\
              They also cannot rely on Stephenson v. Dow Chem. Co., 273 F.3d\
249 (2d Cir. 2001), vacated in part on other grounds, 539 U.S. 111\
(2003). In Stephenson the class members suffered exposure to Agent\
Orange; the individuals collaterally attacking the settlement had\
not become ill from exposure until after the settlement was\
approved and its funds disbursed. Id. at 260-61. The court held\
that because they did not know they suffered injury from exposure\
when the case concluded, they lacked notice and adequate\
representation. Id. Binding them to the settlement through res\
judicata would violate due process. Id. The Groton parents are\
not challenging this settlement after it terminated; indeed the\
district court let them object to class certification.\
'

var WPFootnote19 = '                   On appeal the Groton parents advance an entirely\
frivolous standing argument, purportedly based on Article III, not\
raised in the trial court and not within the scope of our\
interlocutory jurisdiction. There is simply no question that the\
certified class met all Article III requirements.\
'

var WPFootnote20 = '                   We review the evidence presented during fairness hearings\
when determining whether a district court abused its discretion by\
approving a settlement. See, e.g., Dikeman v. Progressive Exp.\
Ins. Co., 312 F. App\'x 168, 171 (11th Cir. 2008) (affirming the\
district court in part on "the testimony and evidence presented at\
the fairness hearing"); United Auto., Aerospace, and Agric. Workers\
of Am. v. General Motors Corp., 497 F.3d 615, 636 (7th Cir. 2007)\
(reviewing "live testimony" from a fairness hearing); Walker v.\
City of Mesquite, 858 F.3d 1071, 1072-73 (5th Cir. 1988) (noting\
the district court considered "oral testimony and documentary\
exhibits").\
'

var WPFootnote21 = '                   During transition planning the state will also consider\
what enhanced specialized services List members should receive and\
incorporate that plan into their RISPs. Though focused on services\
and not placement, the RISP process is another time the state will\
review class members\' needs with them and their families.\
'

var WPFootnote22 = '                   The settlement also expressly creates some appellate\
rights not relevant to the Groton parents\' concerns.\
'

var WPFootnote23 = '                   The parties disagree whether the grandfather provision\
applies only to residents who lived in nursing homes and received\
their first PASARR before April 1, 1990, or to residents who lived\
in a nursing home for thirty months before a PASARR finding that\
they no longer need nursing home care. Nothing in the district\
court\'s decision or this decision prejudices class members\' right\
to argue they are "long-term residents" under either interpretation\
to the state and on appeal. The district court\'s conclusion that\
class members had no legal right to remain in nursing homes, see\
Rolland XI, 562 F. Supp. 2d at 185, is not precedent on this issue.\
'

var WPFootnote24 = '                   The Groton parents do not contend Olmstead or Title II\
modified the NHRA. As the district court noted, the NHRA actually\
requires the state to move most individuals from nursing homes if\
they do not need that level of care. Rolland XI, 562 F. Supp. 2d\
at 185. The NHRA prohibits federal Medicaid payments to cover\
unnecessary nursing home care for individuals other than long-term\
residents. See 42 U.S.C. § 1396r(e)(7)(D)(ii). \
'

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