Murphy et al v. Minnesota Department of Human Services et al

Filing 99

MEMORANDUM OPINION AND ORDER. 1. Plaintiffs' Motion for Class Certification (Doc. No. 35 ) is GRANTED. 2. The following class is certified pursuant to Rule 23 of the Federal Rules of Civil Procedure: All individuals age 18 and older who are el igible for and have received a Disability Waiver, live in a licensed Community Residential Setting, and have not been given the choice and opportunity to reside in the most integrated residential setting appropriate to their needs. 3. Having consider ed the requirements of Rule 23(a)(4), the Court appoints Tenner Murphy, by his guardians Kay and Richard Murphy; Marrie Bottelson; and Dionne Swanson as class representatives. 4. Having considered the requirements of Rule 23(g) of the Federal Rules of Civil Procedure, the Court appoints Sean B. Burke, Justin H. Perl, Joseph W. Anthony, Steven M. Pincus, and Peter J. McElligott as class counsel.(Written Opinion) Signed by Judge Donovan W. Frank on 9/29/2017. (BJS)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Tenner Murphy, by his guardians
Kay and Richard Murphy; Marrie
Bottelson; Dionne Swanson; and
on behalf of others similarly situated,
Plaintiffs,

Civil No. 16-2623 (DWF/BRT)

MEMORANDUM
OPINION AND ORDER

v.
Emily Johnson Piper in her capacity
as Commissioner of The Minnesota
Department of Human Services,
Defendant.

Joseph W. Anthony, Esq., Peter McElligott, Esq., and Steven M. Pincus, Esq., Anthony
Ostlund Baer & Louwagie PA; Justin H. Perl, Esq., Mid-Minnesota Legal Aid; and
Sean B. Burke, Esq., Mid-Minnesota Legal Aid, Minnesota Disability Law Center,
counsel for Plaintiffs.
Janine Wetzel Kimble, Scott H. Ikeda, Assistant Attorneys General, Minnesota Attorney
General’s Office, counsel for Defendant.

INTRODUCTION
This matter is before the Court upon Plaintiffs’ motion for class certification
pursuant to Federal Rule of Civil Procedure 23(b)(2). (Doc. No. 35.) Defendant opposes
the motion. (Doc. No. 45.) After considering the submissions of the parties, and for the
reasons stated, the Court finds that certification of the proposed class is appropriate.
Thus, Plaintiffs’ Motion for Class Certification is granted.

BACKGROUND
The Court previously detailed the background facts of this case in its May 18,
2017 Memorandum Opinion and Order, (Doc. No. 54), and the Court only briefly
summarizes the facts here. 1 In short, Plaintiffs are individuals with disabilities and
Medicaid recipients who receive Home and Community Based Disability Waivers
(“Disability Waivers”) from the State of Minnesota under the direction of Defendant
Emily Johnson Piper (“Defendant”), Commissioner of the Minnesota Department of
Human Services (“DHS”). Plaintiffs reside in Community Residential Setting (“CRS”)
facilities—otherwise known as corporate adult foster care—and wish to access various
individualized housing services available under the Disability Waivers to pursue more
integrated housing options. Plaintiffs assert that their current living situations isolate and
segregate them from their communities in violation of federal law. To access the services
they seek in a timely manner and with proper due process, Plaintiffs seek declaratory and
injunctive relief to reform Defendant’s administration of the Disability Waiver programs.
The Court supplements the relevant facts as needed, below.
Currently before the Court is Plaintiffs’ motion to certify a class of: “[I]ndividuals
age 18 and older who are eligible for and have received a Disability Waiver, live in a
licensed Community Residential Setting, and have not been given the choice and
opportunity to reside in the most integrated residential setting appropriate to their needs.”
1

The Court directs readers to its May 18, 2017 Memorandum Opinion and Order
and otherwise assumes familiarity with the facts and law elaborated therein. See Murphy
ex rel. Murphy v. Minn. Dep’t of Human Servs., Civ. No. 16-2623, 2017 WL 2198133
(D. Minn. May 18, 2017).
2

(Doc. No. 37 at 2.) Tenner Murphy (“Murphy”), Marrie Bottelson (“Bottelson”), and
Dionne Swanson (“Swanson”) (collectively, the “Named Plaintiffs”) assert their claims
on behalf of themselves and other similarly situated individuals (collectively, the
“Plaintiffs”) and seek to represent the proposed class.
DISCUSSION
I.

Standard for Class Certification Under Rule 23
“A class action serves to conserve the resources of the court and the parties by

permitting an issue that may affect every class member to be litigated in an economical
fashion.” Ebert v. Gen. Mills, Inc., 823 F.3d 472, 477 (8th Cir. 2016). To obtain class
certification, a party must first meet the requirements of Rule 23(a) by establishing that:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the
claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests
of the class.
Fed. R. Civ. P. 23(a). In addition, plaintiffs seeking certification “must satisfy one of the
three subsections of Rule 23(b).” Ebert, 823 F.3d at 477 (quoting In re St. Jude Med.,
Inc., 425 F.3d 1116, 1119 (8th Cir. 2005)). The burden is on the plaintiffs to “show[] that
the class should be certified and that the requirements of Rule 23 are met.” Id. (quoting
Luiken v. Domino’s Pizza, LLC, 705 F.3d 370, 372 (8th Cir. 2013)).
District courts retain “broad discretion” in determining whether to certify a class.
Id. (citation omitted). However, the court must conduct a “rigorous analysis” to ensure
“that the prerequisites of Rule 23(a) have been satisfied.” Comcast Corp. v. Behrend,
3

569 U.S. 27, 33 (2013) (citation omitted); see also In re Target Corp. Customer Data
Sec. Breach Litig., 847 F.3d 608, 612 (8th Cir. 2017), amended, 855 F.3d 913 (8th Cir.
2017). “The class determination generally involves considerations that are enmeshed in
the factual and legal issues comprising the plaintiff’s cause of action.” IBEW Local 98
Pension Fund v. Best Buy Co., 818 F.3d 775, 783 (8th Cir. 2016) (quoting Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011)). The Eighth Circuit has noted that “class
certification is not the time to address the merits of the parties’ claims and defenses.”
Elizabeth M. v. Montenez, 458 F.3d 779, 786 (8th Cir. 2006). However, “the ‘rigorous
analysis’ under Rule 23 must involve consideration of what the parties must prove.” Id.
Plaintiffs argue that this case is particularly suited to Classwide resolution because
it asserts an integration mandate claim under the Americans with Disabilities Act
(“ADA”) and the Supreme Court’s landmark decision in Olmstead v. L.C. ex rel.
Zimring, 527 U.S. 581 (1999). Plaintiffs explain that “Olmstead claims are well suited
for class treatment because, among other issues, a state’s fundamental alteration defense
necessarily involves inquiries into the needs of all persons served by the state’s
supportive services system.” (Doc. No. 37 at 12-13.) Emphasizing the systemic nature
of their claims, Plaintiffs assert that “[t]his case . . . attacks the Defendants’ 2 lack of

2

When this motion was briefed by the parties, this case included multiple
Defendants. Although the case has now been limited to a single Defendant, occasional
references to “Defendants” remain in quoted material within this Order. The Court
acknowledges that the only Defendant present in the case is Commissioner
Emily Johnson Piper, Commissioner of The Minnesota Department of Human Services.
4

standardized conduct in planning, administering, and operating their Waiver service
system.” (Doc. No. 51 at 2.)
Defendant identifies four key issues with Plaintiffs’ motion for class certification:
(1) the Court cannot evaluate numerosity based on Plaintiffs’ vague proposed class;
(2) individual determinations prevent commonality among the proposed class; (3) the
Named Plaintiffs do not have injuries typical of the class; and (4) Plaintiffs seek remedies
that would be improper under Rule 23(b).
The Court considers each of the requirements for class certification in light of the
parties’ arguments, below.
II.

Rule 23(a)
A.

Numerosity

First, the proponent of class certification must prove that “the class is so numerous
that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Regarding
numerosity, “[n]o arbitrary rules regarding the necessary size of classes have been
established.” Paxton v. Union Nat’l Bank of Little Rock, 688 F.2d 552, 559 (8th Cir.
1982). In general, however, “a class of 40 or more members raises a presumption of
impracticability of joinder based on numbers alone.” William B. Rubenstein, Newberg
on Class Actions § 3:12 (5th ed. 2017 Update). With respect to the practicability of
joinder, relevant factors include not only “the size of the class,” but “also . . . the nature
of the action, the size of the individual claims, the inconvenience of trying individual
suits, and any other factor relevant to the practicability of joining all the putative class
members.” Paxton, 688 F.2d at 559-60. A court may also take into account factors such
5

as “the asserted disabilities of proposed class members, and geographic diversity.” See
Kenneth R. ex rel. Tri-Cty. CAP, Inc./GS v. Hassan, 293 F.R.D. 254, 265 (D.N.H. 2013).
The Eighth Circuit does not impose a separate ascertainability requirement for
class certification but “adheres to a rigorous analysis of the Rule 23 requirements, which
includes that a class must be adequately defined and clearly ascertainable.” Sandusky
Wellness Ctr., LLC v. Medtox Sci., Inc., 821 F.3d 992, 996 (8th Cir. 2016) (quotation
marks omitted). “A class may be ascertainable when its members may be identified by
reference to objective criteria.” McKeage v. TMBC, LLC, 847 F.3d 992, 998 (8th Cir.
2017). Other Courts of Appeal have determined that ascertainability is not required in
the context of a Rule 23(b)(2) class seeking declaratory and injunctive relief. See, e.g.,
Shelton v. Bledsoe, 775 F.3d 554, 562-63 (3d Cir. 2015). Even in this Circuit, one court
recently noted in evaluating a Rule 23(b)(2) class that “Plaintiffs are not required to
specify an exact number or to prove the identity of each class member, rather, the
plaintiffs must only show a reasonable estimate of the number of class members.”
Postawko v. Mo. Dep’t of Corr., Civ. No. 2:16-cv-04219-NKL, 2017 WL 3185155, at *6,
12 (W.D. Mo. July 26, 2017), appeal filed, No. 17-3029 (8th Cir. Sept. 19, 2017)
(quotation marks and citation omitted).
Plaintiffs assert that approximately 13,800 individuals receiving Disability
Waivers live in corporate foster care facilities in Minnesota. Acknowledging that not all
of these individuals would fit within the proposed Class, Plaintiffs contend that
Defendant’s own actions “make[] it difficult to identify the precise number of potential
Class Members and the full scope of unnecessary segregation of persons in corporate
6

foster care facilities.” (Doc. No. 37 at 13-14.) However, Plaintiffs point to a 2016 DHS
Lead Agency Review of Hennepin County which Plaintiffs suggest illustrates that
approximately five percent of DD waiver recipients living in CRS facilities in the county
“may be better served in more individualized housing options.” (Id. at 14.) Thus,
Plaintiffs estimate that the proposed Class would be made up of approximately 690
individuals (5% of 13,800). 3 Plaintiffs emphasize that they need not identify an exact
number of Class Members and suggest that a class may be made up of as few as twenty
individuals. Plaintiffs also assert that “the class is characterized by size, geographic
diversity, and disabling limitations that make joinder of all member impracticable.” (Id.
at 15.)
Defendant argues that “the proposed class members are not ascertainable.” (Doc.
No. 45 at 10.) Specifically, Defendant identifies a number of questions that would be
necessary for Plaintiffs to answer to evaluate whether an individual is a member of the
class and suggests that Plaintiffs have offered no support to the Court to answer these
questions. For example, such questions include “Does the person live in a CRS?” and
“Does the person want to live in a place other than a CRS?” Defendant also suggests that
ascertaining the Class would require determining whether a CRS is the most integrated
setting for each person’s needs, whether he or she could afford another setting, and how
long each person has waited for services. Regarding Plaintiffs’ proposed class size,
3

Plaintiffs further suggest that the proposed class would likely be even larger
(approximately 800 individuals) taking into account individuals on other Disability
Waivers or individuals with high needs not accounted for in the DHS report on which
they rely.
7

Defendant argues that Plaintiffs mischaracterize the DHS report that they use to support
their class estimate. Defendant asserts that “Plaintiffs may not rely on mere speculation
about the size of the proposed class” and suggest that they “must at least provide a
reasonable estimate.” (Id. at 14-15.)
In response, Plaintiffs argue that ascertainability is merely an implied judicial
requirement that applies with much less force in a Rule 23(b)(2) class. Even if the Court
considers ascertainability, Plaintiffs suggest, the proposed Class would meet this
requirement. Specifically, Plaintiffs emphasize that their proposed Class can be
ascertained by objective criteria based on two components: (1) “persons who are 18 and
older and eligible for and receiving a Waiver and live in corporate foster care,” and
(2) “persons who want the choice and opportunity to live in the most integrated setting
appropriate to their needs.” (Doc. No. 51 at 7.) The answers to these questions, Plaintiffs
argue, could be determined based on objective data available in Waiver program records.
With regard to numerosity, Plaintiffs also contend that their proposed Class would meet
the numerosity requirement even if Plaintiffs relied on the figures in the DHS report that
Defendant claims is relevant.
First, the Court considers the size of the proposed class. Plaintiffs cite their
Amended Complaint for the proposition that 13,800 Disability Waiver recipients are
served in CRS facilities in the state. (See Doc. No. 37 at 13 (citing Doc. No. 33 (“Am.
Compl.”) ¶ 65).) In her Answer, Defendant provides updated figures “affirmatively
stat[ing] that as of May 22, 2017, there are approximately 3,598 corporate foster care
licenses,” and that “[t]hese facilities are licensed to serve up to a capacity of
8

approximately 13,500 Disability Waiver recipients.” (Doc. No. 55 (“Answer”) ¶ 65.)
The Court will rely on the updated figures to support that there are approximately 13,500
individuals residing in CRS facilities throughout the State.
To narrow this large group of individuals to those who would fall within the
proposed class of individuals who “have not been given the choice and opportunity to
reside in the most integrated residential setting appropriate to their needs,” Plaintiffs
direct the Court to a March 2016 DHS Lead Agency Review report for Hennepin County.
(Doc. No. 38 (“Burke Aff.”) ¶ 6, Ex. 5.) This report states that 93.7% of individuals on
the Developmental Disabilities (“DD”) Waiver in Hennepin County qualified as having
“high needs” in 2014. (Id. at 5-6.) The report also identifies a total of 3,175 DD Waiver
Recipients in Hennepin County in 2014. (Id. at 5.) Thus, approximately 6.3%, or
roughly 200 individuals, would be characterized as having low needs. (See id. at 5-6.)
Next, Plaintiffs’ data in the Lead Agency Review report indicates that 38.0% of
DD Waiver recipients in Hennepin County received services in their own homes in 2014.
(Id. at 16.) The remainder, the report suggests, would be served in “provider controlled
housing and residential settings.” (Id.) Specifically, the report notes that Hennepin
County “utilizes residential services for the DD program” for 61% of individuals. (Id.)
Plaintiffs appear to rely on these figures to support that roughly 1,969 DD Waiver
Recipients in Hennepin County (62% of 3,175) reside in provider-controlled housing.
(See id. at 5, 16; see also Doc. No. 37 at 14.)
The Lead Agency Review report also states that “forty-nine percent of low need
people in the DD program currently reside in local corporate foster care homes” and
9

notes that “[i]t is possible that many of these individuals could live independently with
supports.” (Burke Aff. ¶ 6, Ex. 5 at 22.) Accordingly, Plaintiffs argue that “nearly 100
of the approximately 1,969 people in Hennepin County receiving the DD waiver living in
provider controlled residential settings could be considered ‘low needs’ and may not need
or want to be in such a setting.” (Doc. No. 37 at 14.) Plaintiffs propose that the Court
can extrapolate this figure (approximately 5%) statewide to all individuals residing in
CRS facilities to estimate the class size.
The Court agrees with Plaintiffs that the March 2016 Hennepin County Lead
Agency Review provides a reasonable basis for identifying an estimated class size.
DHS’s own recommendation in this report indicates a possibility that “many of” the
approximately one hundred individuals with low needs residing in CRS facilities “could
live independently with supports.” (Burke Aff. ¶ 6, Ex. 5 at 22.) The report also explains
that “[w]hen people are served in their own homes, they have more choices and are able
to make more decisions in how they live their life.” (Id. at 16.) Thus, by DHS’s own
estimates, this report appears to suggest that nearly 100 individuals were not evaluated
regarding or offered an opportunity to reside in the most integrated setting appropriate to
their needs, consistent with Plaintiffs’ proposed class definition.
Further, the Court finds that this estimate supports certification of a statewide class
notwithstanding that the March 2016 report focused on Hennepin County alone. First,
even if the Court relied on only the approximately 100 individuals in Hennepin County as
the estimated class size, Defendant’s role in overseeing the Disability Waivers statewide
would support certification of a statewide class to remedy the alleged deficiencies in the
10

program for all Disability Waiver recipients. Second, the Court finds that the record
suggests Hennepin County is not alone in failing to assure choice and opportunity for
individuals seeking integrated housing alternatives to CRS facilities. The March 2016
Lead Agency Review for Hennepin County suggests that the county “has been
deliberate” in addressing independent housing alternatives “to ensure people have choice
and receive services in the least restrictive setting.” (Id. at 21.) The report also notes that
Hennepin County has “work[ed] regionally with [its] neighboring counties to share ideas
and resources.” (Id.) Regarding person-centered planning, one form of individualized
housing services which Plaintiffs seek in this case, the report describes Hennepin County
as “a leader in the state.” (Id.) If even this county is failing to assure that individuals
residing in CRS facilities have informed choice about integrated housing alternatives, it is
reasonable to conclude that other counties statewide face similar challenges. Finally, a
DHS Lead Agency Review Progress Report based on reviews of 37 lead agencies from
August 2015 to September 2016 made the recommendation that 23 out 37 agencies (or
62.2%) should “[d]evelop services that support people in their own homes,” including
“[d]evelop[ing] service options for people wanting alternatives to foster care.” (Burke
Aff. ¶ 5, Ex. 4 at 5, 39.) This evidence further supports Plaintiffs’ suggestion that
extrapolating the 5% estimate from Hennepin County statewide would provide a
conservative estimate of class size sufficient to establish numerosity.
The Court finds that Plaintiffs have adequately proposed a reasonable estimate for
their proposed class to support numerosity. Although Plaintiff’s numeric estimate based
on the circumstances in one county is not without its limitations, taking into account the
11

additional factors of the proposed class members’ disabilities and geographic dispersion
throughout the state, the Court is satisfied that the proposed class “is so numerous that
joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). 4
Second, the Court addresses Defendant’s arguments regarding ascertainability.
The Court disagrees that the class is not sufficiently ascertainable. First, the Court notes
that many of the questions Defendant identifies need not be answered at all to identify
class membership. For example, the Court will not need to determine the individual
living preferences or most integrated setting of individuals residing in CRS facilities to
determine the scope of the class. As the Court discusses in more detail, below, Plaintiffs
seek systemwide relief so that those determinations can be made in the context of
Defendant’s own administration of the Waiver Services programs statewide. As
Plaintiffs suggest, the Court can ascertain class membership based simply on the
objective criteria of (1) whether an individual is currently in a CRS facility and
(2) whether he or she has received an opportunity to reside in the most integrated setting
appropriate to his or her needs. 5 To be sure, the latter inquiry may be somewhat
subjective in nature as Plaintiffs appear to contest what constitutes adequate informed

4

The Court declines to address the parties’ dispute over the proper data on which to
rely in the DHS Lead Agency Review Progress Report, (see Doc. No. 38 (“Burke Aff.”)
¶ 5, Ex. 4), because the Court finds that numerosity is satisfied even in the absence of this
data.
5

As Plaintiffs point out, information relevant to the latter question can be
determined based on the results documented in the service plans of individual Waiver
Services recipients created by lead agencies pursuant to requirements established by
Defendant. (See Doc. No. 13 (“Welsh Aff.”) ¶ 6, Ex. 6.)
12

choice. However, the Court agrees with the courts that have rejected or applied a relaxed
approach to ascertainability in the context of a Rule 23(b)(2) class and finds that the
proposed class is sufficiently ascertainable to support certification. See Shelton, 775 F.3d
at 561 (“Because the focus in a[ ](b)(2) class is more heavily placed on the nature of the
remedy sought, and because a remedy obtained by one member will naturally affect the
others, the identities of individual class members are less critical in a[ ](b)(2) action than
in a[ ](b)(3) action.”); see also Postawko, 2017 WL 3185155, at *6.
Thus, the Court finds that Rule 23(a)(1)’s numerosity requirement is satisfied.
B.

Commonality

Second, a party seeking class certification must establish “that ‘there are questions
of law or fact common to the class.’” Wal-Mart Stores, Inc., 564 U.S. at 349 (quoting
Fed. R. Civ. P. 23(a)(2)). In Wal-Mart, the Supreme Court clarified the commonality
requirement, explaining that “[c]ommonality requires the plaintiff to demonstrate that the
class members ‘have suffered the same injury.’” Id. at 349-50 (citation omitted). More
specifically, “[t]heir claims must depend upon a common contention—for example, the
assertion of discriminatory bias on the part of the same supervisor.” Id. at 350. Further,
“[t]hat common contention . . . must be of such a nature that it is capable of classwide
resolution—which means that determination of its truth or falsity will resolve an issue
that is central to the validity of each one of the claims in one stroke.” Id. Elaborating on
this requirement, the Supreme Court explained that “[w]hat matters to class certification
. . . is not the raising of common ‘questions’—even in droves—but, rather the capacity of

13

a classwide proceeding to generate common answers apt to drive the resolution of the
litigation.” Id. (citation omitted).
Plaintiffs argue that the commonality requirement is met because Defendant’s
policies and practices in operating the state’s Waiver services program apply to the class
as a whole and have contributed to the same harm of “unnecessary segregation” resulting
from an overreliance on CRS facilities and the denial of individualized housing services.
(Doc. No. 37 at 18.) The Plaintiffs identify the following “questions of law or fact
common to the class,” Fed. R. Civ. P. 23(a)(2), to establish commonality:
i.

Whether the Defendants have failed to provide person-centered
planning and other individualized Waiver services in a system-wide
uniform manner and whether such failure is a violation of Medicaid’s
reasonable promptness requirement;

ii.

Whether Plaintiffs are receiving written notice of adverse action and
opportunity to challenge the failure to provide individualized housing
services and whether such failure is a violation of the Due Process
Clause of the United States Constitution and Plaintiffs’ Medicaid rights;

iii.

Whether the Defendants are violating the integration mandates of the
ADA and Rehabilitation Act by planning, administering, and operating
a residential services system that: unnecessarily segregates Plaintiffs in
corporate foster care facilities and fails to provide informed choice of
more integrated alternatives; discriminates against the Plaintiffs by
providing residential services to them in settings that are not the most
integrated settings appropriate to their needs; and fails to provide the
Plaintiffs with individualized housing Waiver services to allow them to
transition to and remain in the most integrated settings appropriate to
their needs; and

iv.

Whether the Defendants have a comprehensive and effectively working
plan for providing integrated residential services to the Plaintiffs.

(Doc. No. 37 at 18-19.) Plaintiffs argue that “commonality is not defeated by the
presence of individual differences among class members” because the “putative class
14

members share a common legal theory and challenge a common pattern and practice of
discrimination.” (Id. at 19.) According to Plaintiffs, their rights to be free from needless
segregation and to receive Waiver services in a reasonably prompt manner “can only be
properly and fully vindicated in the context of a class action for declaratory and
injunctive relief.” (Id. at 21.)
Defendant asserts that numerous differences among the proposed Class Members
defeat commonality. Such differences include “their individual circumstances, whether
they have been injured, and the alleged cause of their injuries.” (Doc. No. 45 at 15.)
Defendant argues that Plaintiffs have failed to provide evidence of common questions of
law or fact and emphasize that commonality is particularly important in classes certified
under Rule 23(b)(2). With respect to all four common questions raised by the Plaintiffs,
Defendant argues that each fails to satisfy commonality. First, Defendant argues that “a
violation of Medicaid’s reasonable promptness requirement is not an injury capable of
classwide determination” because resolution of such a claim depends on the length of
time an individual has waited for services. (Id. at 17.) Second, Defendant argues that
Plaintiffs have failed to provide evidence to show that all counties are failing to provide
written notice as required by Defendant or that Defendant’s own policy or practice has
resulted in the alleged denials of notice. Third, with regard to Plaintiffs’ integration
mandate claim, Defendant asserts that “Plaintiffs have no evidence that alleged
overreliance on corporate foster care facilities has actually injured each putative class
member, as for some putative class members such a setting may be ‘the most integrated
setting appropriate to their needs.’” (Id. at 18.) Defendant also notes that even if some
15

proposed Class Members are not in the most integrated setting, there is no evidence to
suggest that this is a result of Defendant’s actions as opposed to other factors. Fourth,
Defendant asserts that Minnesota’s Olmstead Plan has been deemed sufficient by this
Court and reiterates that Plaintiffs have not tied the alleged injuries of the proposed Class
Members to any alleged deficiency in the Olmstead Plan. In short, Defendant argues that
“Plaintiffs have not met their burden to show that each putative class member was
harmed, that those allegedly harmed suffered the same injury, or that any such injury was
caused by the same generally applicable policy or action of Defendant such that the Court
can provide a remedy.” (Id. at 19.) Defendant emphasizes that individualized remedies
consistently defeat class-certification post-Wal-Mart. Defendant also points out the
individual county-level determinations underlying Plaintiffs’ claims and assert that
“Plaintiffs have not shown that some universally-applicable action of Defendant caused
putative class members to suffer ‘the same injury’ such that determination of that actions’
legality ‘will resolve an issue that is central to the validity of each one of the claims in
one stroke.’” (Id. at 21 (quoting Wal-Mart Stores, Inc., 564 U.S. at 348-50).)
Plaintiffs argue that Wal-Mart is distinguishable because in this case, “the
challenge is directed to the public entity’s failure to plan, administer, and operate a
residential service system that allows persons with disabilities the choice and opportunity
to live in integrated settings.” (Doc. No. 51 at 8-9.) Plaintiffs argue that a single
injunction could remedy this alleged failure for the Class as a whole. Plaintiffs suggest
that their allegations focus not on individual county-level determinations but on
Defendant’s overall management and direction of the Waiver programs. Regarding
16

reasonable promptness, Plaintiffs assert that the “lack of system-wide assurance to
provide the needed service that Plaintiffs allege is a central issue of Defendants’
liability.” (Id. at 10.) With respect to due process, Plaintiffs similarly contend that
Defendant fails to ensure Wavier services recipients receive adequate notice relating to
the denial of individualized housing services available under the Waivers. Finally,
concerning Plaintiffs’ integration mandate claims, Plaintiffs point to an alleged “systemic
failure to provide proper direction and control over lead agencies” and emphasize
Defendant’s responsibility for the State’s administration of the Waiver services program.
Plaintiffs also dispute Defendant’s reliance on Minnesota’s Olmstead Plan and argue that
the parties’ disagreement over the adequacy of the Olmstead Plan in fact supports that
there are common questions capable of Classwide resolution.
In Wal-Mart, the plaintiffs asserted Title VII employment discrimination claims
based on gender against Wal-Mart. Wal-Mart Stores, Inc., 564 U.S. at 342-45. The
Supreme Court emphasized that “[t]he[] plaintiffs . . . [did] not allege that Wal-Mart has
any express corporate policy against the advancement of women.” Id. at 344. Instead,
the plaintiffs alleged “that Wal-Mart engages in a pattern or practice of discrimination”
based on the company’s delegation of discretionary authority to local supervisors and an
alleged “corporate culture” that resulted in biased employment decisions against women
at Wal-Mart stores throughout the country. Id. at 344-45, 352. In evaluating
commonality, the Supreme Court explained that, “[i]n this case, proof of commonality
necessarily overlaps with respondents’ merits contention that Wal-Mart engages in a
pattern or practice of discrimination. That is so because, in resolving an individual’s
17

Title VII claim, the crux of the inquiry is the reason for a particular employment
decision.” Id. at 352 (footnote, internal quotation marks, and citation omitted). The
Supreme Court noted that the plaintiffs in Wal-Mart sought “to sue about literally
millions of employment decisions at once.” Id. It concluded that, “[w]ithout some glue
holding the alleged reasons for all those decisions together, it will be impossible to say
that examination of all the class members’ claims for relief will produce a common
answer to the crucial question why was I disfavored.” Id. The Supreme Court gave two
examples of how commonality might be established in this context in an employment
discrimination case—a discriminatory test administered by the employer or “[s]ignificant
proof that an employer operated under a general policy of discrimination.” Id. at 353
(citation omitted).
Unlike the plaintiffs in Wal-Mart, Plaintiffs here do not focus their claims on
localized decisionmakers, so the Court does not need to identify evidence of specific
policies or practices to support the commonality of the classwide claims. 6

6

To the extent evidence of such policies is needed to support certification, the Court
notes that the record includes examples of Defendant’s statewide policies affecting the
provision of individualized housing services under the Disability Waivers. For example,
Defendant issued the Person-Centered, Informed Choice and Transition Protocol in
February 2016, and this protocol is designed “to communicate expectations regarding
person-centered practices with its lead agency partners.” (Doc. No. 47 (“Bartolic Aff.”)
¶ 9, Ex. 2 at 1.) The protocol includes, for example, an “Overarching Characteristic” that
“Process results in the person living in the place of his or her own choice that matches his
or her preferences, in the most integrated setting possible.” (Id. at 8-9.) These protocols
and Defendant’s actions in enforcing them constitute a common policy or practice
applicable to the statewide Waiver Services system that unites the classwide allegations
against Defendant.
(Footnote Continued on Next Page)
18

Notwithstanding possible differences in the county-level decisions made with respect to
the individual class members, those decisions are necessarily held together by the “glue”
of the Defendant’s oversight authority and responsibility for administering the state’s
Disability Waiver services system. Defendant is the state agency responsible for
ensuring Minnesota’s compliance with the Medicaid Act in its provision of services. See
42 C.F.R. §§ 431.10(b), 431.10(e); Minn. Stat. §§ 256B.04, subd. 1; 256B.02, subd. 5. In
addition, as a public entity that receives federal funds, Defendant is obligated to comply
with the integration mandates of the ADA and Section 504 of the Rehabilitation Act
(“RA”) in administering the Disability Waivers. See generally Murphy ex rel. Murphy v.
Minn. Dep’t of Human Servs., Civ. No. 16-2623, 2017 WL 2198133, at *21 (D. Minn.
May 18, 2017). Plaintiffs’ classwide claims directed at Defendant are thus dissimilar to
the classwide claims asserted against Wal-Mart. Because Defendant has ultimate
authority and responsibility for the State’s Disability Waivers, Defendant cannot simply
abdicate that responsibility by pointing to the actions of county-level decisionmakers.
See Gray v. Golden Gate Nat’l Recreational Area, 279 F.R.D. 501, 519 (N.D. Cal. 2011),

(Footnote Continued From Previous Page)
In addition, Defendant’s Lead Agency Review process also illustrates Defendant’s
role in overseeing the provision of Waiver Services statewide. (Burke Aff. ¶ 5, Ex. 4 at
8-9.) Through this process, Defendant issues corrective actions and recommendations to
lead agencies. (See id. at 37-40.) For example, during the Lead Agency Review
covering August 2015 to September 2016, Defendant recommended that 23 counties
(62.2%) “[d]evelop service options for people wanting alternatives to foster care.” (Id. at
39.) Whether Defendant’s practices in reviewing lead agencies effectively ensure the
provision of reasonably prompt individualized housing services and opportunities to
reside in the most integrated setting are critical common questions underlying Plaintiffs’
classwide claims.
19

reconsideration granted in part, 866 F. Supp. 2d 1129 (“There is no dispute that overall
governance of the GGNRA, including decisions affecting accessibility, is centrally
controlled by the Park Superintendent. This is a very different situation than the
nationwide, store-by-store, localized discretionary decision-making at issue in
Wal-Mart.”). Thus, Wal-Mart is persuasive, but not dispositive regarding the Court’s
commonality analysis, below, evaluating whether each of Plaintiffs’ claims “depend upon
a common contention . . . that . . . is capable of classwide resolution.” Wal-Mart, 564
U.S. at 350.
First, Plaintiffs assert that Defendant has violated the Medicaid Act’s “reasonable
promptness” requirement, 42 U.S.C. § 1396a(a)(8), by failing to ensure the timely
provision of individualized housing services available under the Disability Waivers. The
Court previously concluded that Plaintiffs stated a claim under this provision because
they “adequately alleged that they are not being offered services in a reasonably prompt
manner based on arbitrary or nonexistent assessment criteria.” Murphy ex rel. Murphy,
2017 WL 2198133, at *16. In reaching this conclusion, the Court relied on guidance
from the U.S. Department of Health and Human Services suggesting that “whether an
individual has a right to receive a certain service ‘is dependent on a finding that the
individual needs the service, based on appropriate assessment criteria that the State
develops and applies fairly to all waiver enrollees.’” Id. at *14-15 (citation omitted).
Medicaid regulations also require that states “[f]urnish Medicaid promptly to
beneficiaries without any delay caused by the agency’s administrative procedures.”
42 C.F.R. § 435.930(a).
20

Plaintiffs’ reasonable promptness claim challenges Defendant’s statewide failure
to appropriately oversee the provision of individualized housing services in all counties to
ensure that these services are “furnished with reasonable promptness to all eligible
individuals.” See 42 U.S.C. § 1396a(a)(8). This challenge is common among all
proposed class members and capable of resolution on a classwide basis because the
Court’s determination whether Defendant’s oversight of the program violates this
provision would resolve all of the individual class members’ claims “in one stroke.”
Wal-Mart Stores, Inc., 564 U.S. at 350; see also Steward ex rel. Minor v. Janek, 315
F.R.D. 472, 481 (W.D. Tex. 2016) (identifying a question of law that would promote
classwide resolution of a claim under 42 U.S.C. § 1396a(a)(8)’s reasonable promptness
provision). If the Court determines that Defendant’s management of the Disability
Waivers statewide fails to ensure the reasonably prompt provision of individualized
housing services to individuals living in CRS facilities, the Court could remedy that
systemic challenge by requiring Defendant to establish appropriate criteria and
procedures for fairly providing available services to eligible individuals. The individual
differences of time that individuals may have been denied services do not defeat
commonality. In fact, the fact that one Named Plaintiff has received some
person-centered planning while the others have not supports Plaintiffs’ overarching
contention that these services are being offered in an ad-hoc manner that is not
reasonably prompt. The Court concludes that this claim may properly be resolved on a
classwide basis.

21

Second, Plaintiffs raise due process challenges under the Due Process Clause of
the Fourteenth Amendment and the Medicaid Act. As the Court noted in its previous
order on Defendant’s Motion to Dismiss, “[t]o state a procedural due process claim, a
plaintiff must demonstrate: (1) the existence of a constitutionally protected liberty or
property interest; and (2) that the defendant deprived the plaintiff of that interest without
constitutionally adequate process.” Murphy ex rel. Murphy, 2017 WL 2198133, at *17.
The Court previously concluded that Plaintiffs, Disability Waiver recipients, had a
constitutionally protected interest in accessing individualized housing services. Id. at
*18. This contention would plainly be applicable to the entire proposed class. The Court
also determined “that Plaintiffs have plausibly alleged inadequate procedural protections”
based on the three-factor test outlined in Mathews v. Eldridge, 424 U.S. 319 (1976). See
id. at *18-19. Plaintiffs have also asserted a challenge to Defendant’s provision of notice
under the Medicaid Act’s fair hearing requirements. See 42 U.S.C. § 1396a(a)(3). Under
these requirements, Defendant is responsible for the statewide provision of adequate due
process in connection with the provision of Medicaid services.
Plaintiffs’ due process claims are capable of Classwide resolution because the
Court can determine with respect to the class as a whole whether Defendant is fulfilling
her statutory obligation to ensure that adequate notice and opportunity for a hearing is
being afforded to Disability Waiver recipients throughout the state. See Susan J. v. Riley,
254 F.R.D. 439, 460 (M.D. Ala. 2008) (rejecting the argument that individualized
analysis precluded certification and noting that the relevant plaintiffs “seek to force the
State to provide the notice and opportunity for a hearing to all applicants who are denied
22

eligibility, including all class members”). It is not necessary for class certification to
establish that Defendant has caused any current failure on behalf of the counties to
deliver adequate notice. Rather, if there is such a failure, the responsibility rests with
Defendant as the administrator of the state’s Disability Waiver services program. 7
Third, Plaintiffs allege violations of the integration mandates of the ADA and
Section 504 of the RA. Regulations implementing both the ADA and the RA include an
“integration mandate” that requires states to “administer services, programs, and
activities in the most integrated setting appropriate to the needs of qualified individuals
with disabilities.” See 28 C.F.R § 35.130(d); see also 28 C.F.R. § 41.51(d). In Olmstead
v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), the Supreme Court considered the ADA’s
integration mandate and held that “[u]njustified isolation . . . is properly regarded as
discrimination based on disability.” Id. at 597. Under the ADA, “public entities must
‘make reasonable modifications in policies, practices, or procedures when the
modifications are necessary to avoid discrimination on the basis of disability,’ but can
avoid this obligation by ‘demonstrat[ing] that making the modifications would
fundamentally alter the nature of the service, program, or activity.’” Guggenberger v.

7

The Court notes that questions regarding the adequacy of particular individual
notices that may have been received are not the types of questions capable of classwide
resolution given the fact-specific inquiry needed to evaluate such questions and claims.
However, the Court finds that it can properly resolve Plaintiffs’ claims on a classwide
basis by answering the common question for all class members whether Defendant’s
policies and practices have failed to ensure the provision of adequate notice to individuals
being denied individualized housing services available under the Waivers.
23

Minnesota, 198 F. Supp. 3d 973, 1023-24 (D. Minn. 2016) (quoting 28 C.F.R.
§ 35.130(b)(7)).
The Court previously determined that “Plaintiffs have adequately pled integration
mandate claims under the ADA and the RA based on their allegations of being unduly
segregated in CRS facilities and not receiving Disability Waiver services ‘in the most
integrated setting appropriate to [their] needs.’” Murphy ex rel. Murphy, 2017 WL
2198133, at *23 (quoting 28 C.F.R. § 35.130(d) and citing 28 C.F.R. § 41.51(d)). Similar
to their reasonable promptness claim, Plaintiffs’ integration mandate claims focus on
Defendant’s lack of oversight and failure to ensure the provision of available Disability
Waiver services throughout the state. As the Court previously noted in considering the
plausibility of Plaintiffs’ claims, Plaintiffs assert that “[r]ather than require statewide
access to individualized housing services, Defendants provide impermissible discretion to
each lead agency to choose whether to offer individualized housing services.” (Am.
Compl. ¶ 27.) According to Plaintiffs, “[t]his abdication of DHS’s responsibility to
provide and ensure choice prevents individuals receiving Disability Waiver services from
receiving an informed choice and opportunity to live in the most integrated setting.” (Id.)
Determining the validity of these contentions lodged against Defendant would resolve for
all class members whether their right to receive services in the most integrated setting
appropriate to their needs has been protected. See Kenneth R. ex rel. Tri-Cty. CAP,
Inc./GS, 293 F.R.D. at 267 (identifying as common questions capable of classwide
resolution “whether there is a systemic deficiency in the availability of community-based
services, and whether that deficiency follows from the State’s policies and practices”).
24

The possibility that not all class members would ultimately move out of a CRS facility—
and even the possibility that a CRS facility is in fact the most integrated setting for some
individuals—does not defeat commonality. Plaintiffs seek to avoid the common injury of
unjustified or unnecessary segregation through a system that offers a choice and
opportunity to transition to the most integrated setting appropriate to their needs. These
alleged injuries are thus capable of classwide resolution.
As one court has noted in discussing post-Olmstead integration mandate cases,
“[w]here a private action raises systemic issues, courts have uniformly granted class
certification to allow plaintiffs to pursue those claims, even after . . . Wal-Mart . . ., which
arguably tightened the standard for class certification.” Thorpe v. District of Columbia,
303 F.R.D. 120, 126 (D.D.C. 2014) (citation omitted); see also id. at 126 n.11 (collecting
cases). Specifically, in Lane v. Kitzhaber, 283 F.R.D. 587 (D. Or. 2012), an integration
mandate case alleging systemic deficiencies in the state’s provision of integrated
employment opportunities, the court explained that “a class of disabled individuals
seeking reasonable accommodation may be certified without the need for an
individualized assessment of each class member’s disability or the type of
accommodation needed.” Id. at 589-90, 594-95. The Lane court explained:
[A]ll plaintiffs are qualified for, but not receiving the full benefit of,
supported employment services; all lack regular contact with non-disabled
peers (other than paid staff); and all want to work, but are not working, in
an integrated setting. As a result, they and all similarly situated persons
suffer the same injury of unnecessary segregation in the employment
setting. It is not necessary, as defendants contend, for plaintiffs to prove at
this stage that they and all putative class members are unnecessarily
segregated and would benefit from employment services. That is, in effect,
the answer to the common question and not the common question of
25

whether they are being denied supported employment services for which
they are qualified.
Id. at 598. Plaintiffs assert similar claims here and have adequately established that these
claims are capable of classwide resolution.
In short, Plaintiffs have identified multiple “questions of law or fact common to
the class” that are capable of classwide resolution. See Fed. R. Civ. P. 23(a)(2).
Therefore, Plaintiffs have satisfied Rule 23(a)(2).
C.

Typicality

The third preliminary requirement for class certification is that “the claims or
defenses of the representative parties are typical of the claims or defenses of the class.”
Fed. R. Civ. P. 23(a)(3). “This requirement is generally considered to be satisfied if the
claims or defenses of the representatives and the members of the class stem from a single
event or are based on the same legal or remedial theory.” Paxton, 688 F.2d at 561-62
(quotation marks and citation omitted). However, “[t]he presence of a common legal
theory does not establish typicality when proof of a violation requires individualized
inquiry.” Elizabeth M., 458 F.3d at 787. Typicality and commonality “tend to merge”
because “[b]oth serve as guideposts for determining whether under the particular
circumstances maintenance of a class action is economical and whether the named
plaintiff’s claim and the class claims are so interrelated that the interests of the class
members will be fairly and adequately protected in their absence.” Wal-Mart Stores,
Inc., 564 U.S. at 349, n.5 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157-58,
n.13 (1982)).
26

Plaintiffs argue that the typicality requirement is met because the Named
Plaintiffs’ claims are based on the same conduct by Defendant and can be remedied in the
same manner as the claims of the entire proposed Class. Plaintiffs emphasize that all
proposed class members share the same “typical problem” of being “stuck in corporate
foster care.” (Doc. No. 51 at 17.) Plaintiffs also argue that the fact that some individuals
may be prevented from implementing individualized housing options does not bar class
certification. Finally, they contend that individual differences in Waiver type or
geographic location do not defeat typicality or adequacy.
Defendant contends that Plaintiffs fail to establish typicality because the Named
Plaintiffs’ interests differ from those of the proposed Class. For example, Defendant
argues that Plaintiffs have not established that the proposed class members all wish to
move from their CRS facilities like the Named Plaintiffs. Defendant also points out that
the three Named Plaintiffs reside in Hennepin County and that they do not represent all
types of available waiver recipients.
The Court finds that the Named Plaintiffs’ claims “are typical of the claims . . . of
the class.” Fed. R. Civ. P. 23(a)(3). Specifically, Bottelson, Swanson, and Murphy all
assert that they presently reside in CRS facilities and experience various levels of
isolation and segregation from their communities in these settings. (See Doc. No. 44
(“Bottelson Decl.”) ¶¶ 6, 10; Doc. No. 42 (“Swanson Decl.”) ¶¶ 4, 5-6; Doc. No. 43
(“Murphy Decl.”) ¶¶ 7-8, 10.) In addition, like the proposed class, the Named Plaintiffs
assert that they have been denied the choice and opportunity to access the most integrated
setting appropriate to their needs by utilizing individualized housing services. (Bottelson
27

Decl. ¶¶ 8, 12-13; Swanson Decl. ¶¶ 5, 8-9; Murphy Decl. ¶¶ 14-16.) Bottelson explains
that despite asking to move to her own apartment multiple times since 2013, “I have not
been given more individualized or independent alternative options to consider.”
(Bottelson Decl. ¶ 8.) Swanson has made similar requests but asserts that “[m]y case
managers . . . have told me I am not ‘independent enough’ for such individualized
housing.” (Swanson Decl. ¶ 5.) Murphy’s co-guardian states that “[a]lthough I have
asked several people at Hennepin County about accessing more individualized housing
options, [Murphy] remains stuck in a segregated setting.” (Murphy Decl. ¶¶ 1, 14.) The
Named Plaintiffs’ interests in this case are identical to those of the proposed class
members as each seeks to require Defendant to implement the state’s Disability Waiver
programs in a manner that ensures access to available Disability Waiver services in a
reasonably prompt manner, with adequate notice, and in the most integrated setting
appropriate to their needs.
As the Court concluded with respect to commonality, individualized inquiries are
not necessary to determine Defendant’s liability for the alleged violations of federal law
because Plaintiffs’ challenges focus on Defendant’s actions and inactions applied to the
system as a whole. Furthermore, the Named Plaintiffs’ claims are typical even though
proposed class members may be eligible for individualized housing services under
different Disability Waivers administered in different counties. Cf. Susan J., 254 F.R.D.
at 460 (rejecting the argument “that certification of a statewide class may be
inappropriate because the [local county agency] may be doing a particularly bad job of
serving people” and noting that “[t]his argument overlooks the fact that it is the State’s
28

Medicaid plan that is required to comply with Federal Law”). It is also no bar to
certification that some individuals in the proposed class may not want to move out of a
CRS facility because the requested relief is aimed at providing opportunities to access
more integrated alternatives, and it is immaterial whether all proposed class members will
ultimately take advantage of those opportunities.
Because Plaintiffs’ claims stem from the same legal theory and seek the same
legal remedy as the proposed class, Plaintiffs satisfy Rule 23(a)(3).
D.

Adequacy

Rule 23(a)(4) requires plaintiffs to establish that “the representative parties will
fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). 8 In
evaluating this requirement, courts must “clearly inquire into whether the named
representatives (1) ‘have common interests with the members of the class [;]’ and
(2) ‘will vigorously prosecute the interests of the class through qualified counsel.’” In re
Target Corp., 847 F.3d at 613 (quoting Paxton, 688 F.2d at 562-63). Furthermore, “the
court must diligently aim to ‘uncover conflicts of interest between named parties and the
class they seek to represent.’” Id. (quoting Amchem Prods., Inc. v. Windsor, 521 U.S.
591, 625 (1997)).
Plaintiffs assert that they are represented by competent counsel and “will fairly
and adequately protect the interests of the class in this action.” (Doc. No. 37 at 24.)
Plaintiffs ask the Court to appoint as class counsel attorneys from the Minnesota
8

Rule 23(g)(4) also provides that “[c]lass counsel must fairly and adequately
represent the interests of the class.” Fed. R. Civ. P. 23(g)(4).
29

Disability Law Center, a division of Mid-Minnesota Legal Aid and the law firm of
Anthony Ostlund Baer & Louwagie, P.A. The Named Plaintiffs also declare that their
interests are “common and coextensive” with the proposed class. (Id.) They contend that
“[b]ecause all Class Members seek to receive individualized transition plans and an
opportunity to implement those plans by moving to the most integrated setting
appropriate to their needs, they will all benefit from the prospective injunctive relief in
this case.” (Id. at 24-25.) The Named Plaintiffs also attest that they will responsibly
serve as class representatives in this matter. (See Bottelson Decl. ¶ 14; Swanson Decl.
¶ 10; Murphy Decl. ¶ 17.) Defendant does not assert a particular challenge to the
competency of proposed class counsel and makes the same arguments against adequacy
as those made with respect to typicality.
The Court finds that the Named Plaintiffs have met the requirements of
Rule 23(a)(4). Consistent with the Court’s analysis of both the commonality and
typicality requirements, above, the Court finds that the Named Plaintiffs assert injuries
that are common to and typical of those alleged on behalf of the proposed class—
unjustified isolation and segregation in CRS facilities and denial of available Disability
Waiver services. Thus, both the Named Plaintiffs and the proposed class members share
the common goals of obtaining Disability Waiver services in a reasonably prompt manner
and pursuing appropriate integration into their communities. The Court acknowledges
that the individualized housing services Plaintiffs seek may be drawn from a limited pool
of available resources, suggesting a potential conflict of interest among those seeking to
access these services. However, the Named Plaintiffs and the proposed class would all
30

benefit from the remedies they seek in the form of a more consistent and equitable
distribution of resources statewide. Thus, to the extent there is any conflict of interest,
the Court determines that it is insufficient to preclude certification of this proposed class
seeking systemic injunctive relief to improve Defendant’s oversight of the state’s
Disability Waiver services system. The Court also finds that counsel for the Named
Plaintiffs are qualified to assist the Named Plaintiffs in serving as class representatives
and vigorously advancing the goals of the class. Along with detailing their qualifications
to represent the class in declarations to the Court, (see Doc. Nos. 40, 41), counsel for the
Named Plaintiffs have also vigorously represented the interests of the Named Plaintiffs
and the proposed class in the months since this litigation began. See Första AP-Fonden
v. St. Jude Med., Inc., 312 F.R.D. 511, 516 (D. Minn. 2015).
The Court finds that Plaintiffs have established adequacy under Rule 23(a)(4).
III.

Rule 23(b)
Along with meeting the prerequisites of Rule 23(a), a party seeking class

certification must also satisfy one or more of the conditions set forth under Rule 23(b).
Fed. R. Civ. P. 23(b). In this case, Plaintiffs seek certification of a Rule 23(b)(2) class.
Under this provision, certification is proper “if Rule 23(a) is satisfied and if . . . the party
opposing the class has acted or refused to act on grounds that apply generally to the class,
so that final injunctive relief or corresponding declaratory relief is appropriate respecting
the class as a whole.” Fed. R. Civ. P. 23(b)(2).
“[C]ohesiveness is the touchstone of a (b)(2) class, as a (b)(2) class ‘share[s] the
most traditional justification[ ] for class treatment,’ in that ‘the relief sought must
31

perforce affect the entire class at once.’” Ebert, 823 F.3d at 480 (quoting Wal-Mart
Stores, Inc., 564 U.S. at 361-62). Since class members cannot opt out of a(b)(2) class and
there is no requirement for the court to provide notice, “the cohesiveness requirement of
Rule 23(b)(2) is more stringent than the predominance and superiority requirements for
maintaining a class action under Rule 23(b)(3).” Id. “Injuries remedied through (b)(2)
actions are really group, as opposed to individual injuries. The members of a (b)(2) class
are generally bound together through ‘preexisting or continuing legal relationships’ or by
some significant common trait such as race or gender.” In re St. Jude Med., Inc., 425
F.3d at 1122 (quoting Holmes v. Cont’l Can Co., 706 F.2d 1144, 1155 n.8 (11th Cir.
1983)).
Plaintiffs argue that class certification is proper under Rule 23(b)(2) because
“class-wide relief will address the two broad areas of Defendants’ illegal conduct,”
including the failure to provide reasonably prompt waiver services with adequate due
process and subjecting Plaintiffs to needless segregation. (Doc. No. 37 at 26.) By
accessing individualized housing services, developing individualized transition plans, and
having opportunities to implement these plans, Plaintiffs argue, “individuals would
finally be able to plan for, look for, move into, and live in the most integrated setting
appropriate to their needs.” (Doc. No. 37 at 26-27.) Plaintiffs argue that all class
members would benefit from the requested injunctive and declaratory relief.
Defendant argues that certification under Rule 23(b)(2) is improper where the
plaintiffs seek individualized relief. According to Defendant, Plaintiffs seek “highly
individualized relief” in the form of individualized person-centered planning,
32

individualized housing services, and opportunities to implement those individualized
services. (Doc. No. 45 at 25.) Defendant points out that “some class members have
received person-centered planning—including Ms. Bottelson—and some may not have,”
and “[s]ome are already in their most integrated setting, and Plaintiffs allege some are
not.” (Id. at 26.) Defendant argues that the Court could not issue an order in this case
that affects the proposed Class at the same time, rendering certification improper under
Rule 23(b)(2). Finally, Defendant asserts that the relief Plaintiffs seek violates principles
of federalism and the separation of powers.
Plaintiffs contend that they do not ask the Court to impose individualized relief
such as “deciding the support plan for each class member” or “issuing individualized
injunctions detailing the treatment needs of each class member, displacing Minnesota’s
assessment and planning process, or mandating that Plaintiffs receiving housing of their
choice.” (Doc. No. 51 at 18.) Plaintiffs also dispute Defendant’s argument that their
requested relief violates federalism or the separation of powers.
The Court finds that the proposed class may be properly certified under
Rule 23(b)(2) because this case centers on Defendant’s conduct in administering the
Disability Waivers statewide. In particular, Plaintiffs allege that Defendant fails to
ensure the reasonably prompt provision of individualized housing services, fails to ensure
that services are provided in the most integrated setting appropriate to individuals’ needs,
and fails to ensure that Disability Waiver recipients receive adequate procedural due
process protections. As the Court has previously explained in a separate case, “the
Commissioner has ultimate responsibility for the State’s provision of Waiver Services
33

under both federal Medicaid law and Minnesota statutes.” Guggenberger, 198 F. Supp.
3d at 1034 (citing 42 C.F.R. §§ 431.10(b), 431.10(e), 435.903; Minn. Stat. §§ 256.01,
subd. 2(a); 256B.04, subd. 1; 256B.05, subd. 1). Thus, the class comprises a cohesive
group of similarly situated individuals receiving Disability Waivers and residing in CRS
facilities whose circumstances are impacted by Defendant’s actions and inactions with
respect to the class as a whole.
Further, if Plaintiffs’ claims are ultimately successful, the Court finds “that final
injunctive relief or corresponding declaratory relief is appropriate respecting the class as
a whole.” Fed. R. Civ. P. 23(b)(2). The Court acknowledges that Plaintiffs seek
individualized services in order to obtain individualized housing options. However,
Plaintiffs do not seek individualized injunctive relief for each class member. Rather,
Plaintiffs seek final relief that would enable them to access individualized housing
services and integrated residential settings through improvements to Defendant’s
administration of the Disability Waivers.
Finally, the Court addresses Defendant’s arguments regarding federalism and the
separation of powers. The Eighth Circuit has acknowledged the importance of carefully
evaluating class certification and jurisdiction “before certifying a class seeking broad
injunctive relief against a state agency.” Elizabeth M., 458 F.3d at 784. The Court
incorporates its previous analysis regarding the important federalism and separation of
powers considerations at issue in this matter, see Murphy ex rel. Murphy, 2017 WL
2198133, at *25-27, and determines that these considerations do not justify denying
certification of the proposed class.
34

As a result of the foregoing considerations, the Court finds that this class is
properly certified under Rule 23(b)(2).
CONCLUSION
Resolving Plaintiffs’ claims in the context of a class action will fairly promote the
interests of the class and will ensure judicial economy. In addition, because this matter
seeks to reform Defendant’s statewide administration of Disability Waiver services to all
individuals over age 18 residing in CRS facilities, a class action will permit the parties to
litigate issues common to the class in an economical manner while avoiding duplicative
litigation. The Court finds that Plaintiff has satisfied the requirements of Rules 23(a) and
23(b)(2), and the Court certifies the proposed class.
ORDER
Accordingly, IT IS HEREBY ORDERED that:
1.

Plaintiffs’ Motion for Class Certification (Doc. No. [35]) is GRANTED.

2.

The following class is certified pursuant to Rule 23 of the Federal Rules of

Civil Procedure: All individuals age 18 and older who are eligible for and have received
a Disability Waiver, live in a licensed Community Residential Setting, and have not been
given the choice and opportunity to reside in the most integrated residential setting
appropriate to their needs.
3.

Having considered the requirements of Rule 23(a)(4), the Court appoints

Tenner Murphy, by his guardians Kay and Richard Murphy; Marrie Bottelson; and
Dionne Swanson as class representatives.

35

4.

Having considered the requirements of Rule 23(g) of the Federal Rules of

Civil Procedure, the Court appoints Sean B. Burke, Justin H. Perl, Joseph W. Anthony,
Steven M. Pincus, and Peter J. McElligott as class counsel.
Dated: September 29, 2017

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge

36