This is being provided in a rough-draft format. Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.
KATHRYN RUCKER: My name is Kathryn Rucker. I'm with the Center for Public Representation. I use she/her pronouns. I have brown hair and glasses.
JENNIFER MATTHIS: And I'm Jennifer Mathis at the Bazelon Center for Mental Health Law.
Also a white woman with glasses and short hair, brown hair.
And I will turn it back over to you.
KATHRYN RUCKER: Just putting it out there. We really appreciate you all being here today. It's nice that we are a smaller size group. We really like this to be more interactive discussion.
We really welcome your am discussion and insights.
This is an area of the law that we at the Center work in quite a bit. Jennifer has a tremendous amount of experience and is very dynamic. I think there is a lot of room for mutual strategizing, not just today's but going forwards.
So we really welcome that.
KATHRYN RUCKER: Well, thank you. We welcome you all. We are looking forward to your participation today and to talking through these interesting issues with you.
We have kind of an informal approach to today. We are willing to modify it based on issues of interest to you.
But we generally thought that we would talk a little bit about the evolution at-risk claims, how some of the shifting legal landscape is making those claims riskier now than they have been in the past. And how at least we are starting to weigh some of those potential risks and benefits in existing and new litigation.
And we'll try to share too some strategic advice or considerations that we've identified both to try to help mitigate those risks and defend against at least the challenges we can anticipate at this point.
JENNIFER MATTHIS: I think I will start out just giving a little bit of context and background for sort of how we got to this point where we are thinking about and worried about at-risk claims and what we should do and future and whether there is a future for at-risk claims.
It's helpful to kind of understand how we got here. So early on, including really just almost immediately after Olmstead, people were bringing Olmstead claims that included an at-risk group either as part of a class in some cases or as part of a target group of constituents of an associational plaintiff or in some cases, as part of just group of individual plaintiffs.
And I think this really mostly pioneered by Steve Gold. Many of you probably know or encountered Steve at different points in your career. Steve was really one of the fathers of Olmstead or parents or whatever. I don't know what the proper name is now.
Of Olmstead litigation. It was sort of a clever strategy in a way. Steve primarily represented folks with physical disabilities who were at risk of going into nursing homes. He did do some Olmstead litigation that was around folks who were actually institutionalized, but he did a lot of these cases that were focused on people who were at risk because there were some advantages to that.
And you didn't have to show in the same way that people were qualified to live in the community, which is one of the biggest challenges we always had with these Olmstead cases.
Because your people were in the community and they are living there for a long time. So Steve kind of used this as a way to challenge either budget cuts or in many cases, just changes to programs. So one of the early cases he brought was Fisher v. Oklahoma where Oklahoma had changed its nursing home waiver and they changed the number of prescriptions that they would cover in the nursing home waiver.
So that now all of a sudden, they only cover five.
And if you go into a nursing home, you get whatever meds you need.
But if you are in the nursing home community in the waiver, the Medicaid program is only going to cover some limited number of communications.
So Steve brings this case on behalf of a set of folks who say, well, we are going to end up going to a nursing home because we have more than five medications and we can't stay in the community and live safely. We are going to have to go to a nursing home to get what we need. He had brought a number of other cases like this, Fisher, because it went to the Tenth Circuit, they affirmed a preliminary ruling.
But that became one of the lead cases on this kind of at-risk claim.
And they recognized that was a thing that you could do under the ADA. Fisher said something like, it wouldn't make any sense. It would make the integration mandate meaningless if you had to wait to actually go into an institution before you could challenge the very discriminatory policy that forced into the institution.
So really, in so many of these early cases, nobody seriously challenged the concept of whether there was an at-risk claim or what the specific basis was for that kind of claim under Olmstead. Mostly, the litigation was around is there really a risk? Are these people at risk?
And so, there were a number of cases. Radaszewski, which went to the court in Illinois, kids Medicaid home care program where he got private duty nursing at home 24/7.
Then suddenly, he is aging out and he needs more services than what's variable in the adult nursing home waiver program.
And so, he sues and says, well, now, I'm at risk of going into a nursing home because I can't get enough service in the adult program. And, again, the court recognizes at risk. I don't think it was actually even challenged in Radaszewski. Other things were challenged, but not including, I think, the degree of risk, but not whether an at-risk claim was available under Olmstead.
There were a number of cases brought by people on DD waiting lists. For the most part, those did not do very well, because for the most part, the courts looked at those cases and said you are not at risk because people sat on those waiting lists for year after year after year and they weren't going into institutions. So it was difficult for the most part to show that people were actually at risk.
So that was where most of the action was, was really around is there actually a risk here and not sort of, can you bring such a claim?
Or if you can bring such a claim, what is the source of authority?
And then come 2011, DOJ does its Olmstead guidance. It's the anniversary of Olmstead and they put out this guidance that mostly hits the established principles of law under the case law.
And they have this question about at risk where they say the ADA and Olmstead extend to people at, quote-unquote, serious risk of institutionalization, and are not limited to people currently institutionalized.
And they say people need not wait until the harm of institutionalization or segregation occurs, or is imminent.
And they say, in fact, you could show sufficient risk of institutionalization to make out an Olmstead violation if a public entity's failure to provide community services or its cut to such services will likely cause a decline in health, safety, or welfare that would lead to the individual's eventual placement at institutions.
That's pretty broad. It doesn't have to be imminent.
It doesn't have to be -- it just has to be likely that it will happen eventually. How eventually is not really clear.
And then after that, courts continued to recognize these at-risk claims. And at some point, it all blows up with the Ninth Circuit. They are deciding a case out of Washington where Washington cuts an average of 10% from personal care services in its Medicaid program. And class of people sues and says we are going to end up going into nursing homes because of these cuts.
And they lose in the district court, Ninth Circuit reverses. Then there is an appeal and -- I'm sorry. There is an en banc petition. And eventually, en banc review is denied, but there is this world will below up dissent from the denial of en banc from nine judges that, basically, says, you've got to be kidding. This has gotten out of control.
States can't budget anymore.
Appellate judges are substituting their -- essentially, for legislatures. This is not the law. This is not what Olmstead requires. The ADA doesn't say this.
Olmstead doesn't say this.
And the decision is pretty much on fire. Washington tries to take it to the Supreme Court. We, the disability community goes into and manages, along with folks in the federal government, avert that from happening because nobody thought it would be good if it went to the Supreme Court.
So we move on.
And then, everything sort of is okay for a while. Eventually, we have another disaster, which is a Fifth Circuit decisions in U.S. v. Mississippi, which -- was it late 2023, I think, or early '24. I think it was '23. This was DOJ's Olmstead case against Mississippi involving people with mental illnesses who are institutionalized in state psychiatric hospitals. Mississippi has a very, very institutionalized mental health system.
Highest per capita of mental health -- I think it was the highest. And not a great community service system.
So they have some group of people that is institutionalized and some group of people that is cycling in and out and in and out of state hospitals. And increasingly, that is the issue in mental health service systems more so than people being warehoused for really long periods of time in at least the state hospitals, and private psych hospitals.
There is more cycling than there used to be.
There is more people going in and out, in and out, closure of state hospitals, downsizing, more reliance on privates, and more short-term admissions and dumping people out and having people go back in because there aren't sufficient community services.
So that becomes more of the issue.
And so, how do you deal with that? It's an Olmstead issue in Mississippi and also in some other cases, we brought a similar case in Alameda County where DOJ was involved. There were private plaintiffs involved.
And similarly, there was a lot of cycling in and out.
People were not actually, for the most part, warehoused, but they were going in and out of the county psych hospital. And Alameda County says, like Mississippi says, that's not what Olmstead is about. Olmstead is about warehousing. Olmstead is about long-term institutionalization.
And we all said, where does it say that? You know, it's about unnecessary institutionalization. It's about administering services in the most integrated setting. It doesn't matter whether people are in the institution for an extended period of time or for short of a period of time.
Obviously, you have the funding works differently and all kinds of things end up calculating differently in the analysis of the case, but there is nothing, depending on how long people are staying, but there is nothing about Olmstead that limits it to long-term institutionalization. So people, basically, brought these claims that are cycling claims. So some of that was happening in this Mississippi case.
And they had experts look at the service system, opined large numbers of people were cycling in and out and were at serious risk of institutionalization in the state hospitals because of the insufficiency of the community services.
And the cycling was sort of described as really people being continually at risk.
So you are in the community for a lot of the time, but you are continuously at risk because you keep going in and out and in and out of the hospital because there is not sufficient community services. So they win at trial.
And they have Judge Reeves, who is great. They actually did this trial, DOJ did this trial, during the first Trump Administration. Won.
Judge Reeves decision was, I would say maybe not the most careful decision.
And there were some pieces of it that really didn't the record that was actually developed.
But one of the things that he said is, as a result of the lack of community services, all people with serious mental illness in the state of Mississippi are at serious risk of institutionalization. I think that was a bridge too far for the Fifth Circuit.
And there was this sense, and I think there is a sense in general in these at-risk claims, where does it end? Who is at risk? Are you sort of creating these limitless obligations on states? Is everybody at risk at some point?
Then when you have a district court judge saying, well, every single person with serious mental illness in the state of Mississippi is in serious risk of institutionalization and has an Olmstead violation, that's a lot.
So the Fifth Circuit was on fire again. Was an ugly argument, one of the ugliest arguments that I could remember listening to. And one of the issues was this at-risk issue. She says. Tell me where it says, "at risk"? This statute talks about discrimination.
Olmstead is about people in an institution who don't need to be there.
Where do you get at risk from? There is nothing in the statute. There is nothing in the Olmstead decision that talks about prospective risk.
The statute refers to actual not hypothetical administration of public programs.
And so, they, basically, say, there is no such thing as at risk.
The ADA doesn't reach that type of claim. It only reaches unnecessary institutionalization.
So there you have it. Then ever since Mississippi, now, states are kind of picking up on these arguments.
And I think in every case where you have an at-risk group, you will encounter these arguments. One of the cases where the defendant had been particularly aggressive is a case in L.A. It's just in district court at this point. That child welfare case, Ocean S. DOJ filed an interest in this case.
It's a nice brief addressing this issue.
It's a good articulation of the best arguments about why at-risk claims are covered by the ADA. And L.A. has pretty aggressively gone after the at-risk claims and they actually filed a separate brief responding just to DOJ's statement of interest on these issues.
And so you have that. Then you have Texas v. Becerra in the Fifth Circuit. It will be in the Fifth Circuit if it goes there. That's the state where Texas and 16 other states are challenging SSH's newly promulgated Section 504 rule.
One of the things that they are raising is that there are these at risk provisions in the 504 rule. They are saying that's not a proper interpretation of the ADA -- of 504 rather. Would say the same of the ADA. The reasoning is the same.
So that's essentially where we are. Teeing it up potentially for, I mean, there have been circuit splits already.
You know, it's teed up for further efforts to maybe take it to the Supreme Court.
And we have issues about whether there is at risk -- an at-risk claim or not. If there is an at-risk, what is the authority for that at-risk claim? Is it that placing somebody at risk is in itself the violation? Or is it that when you place somebody at risk of institutionalization, they have standing to seek relief under the ADA for the violation of unnecessary institutionalization because they have standing to seek relief for an impending violation of the law? So it could be one, it could be both.
Most of these cases don't really talk about the reasoning.
For the most part, the earlier cases don't say much. The later cases all cite the DOJ guidance. There is one case, the Sixth Circuit, I think says some stuff about this.
They, basically, say, well, Olmstead said that it's discrimination to unnecessarily institutionalize people with disabilities because by doing that, you are forcing people to relinquish the opportunity to live in the community in order to get the services they need. Whereas, people without disabilities can get the services they need without going to an institution.
So the Sixth Circuit says, you know, by that same reasoning, you are discriminating not just when you institutionalize the person but when you present them with that choice.
And so, if you have people in the community who are at risk because you are giving them this choice and essentially putting them in this position of having to relinquish their opportunity to continue living in the community, that's the violation.
It's challenging to think about the best arguments to raise.
But in addition to sort of whether there are at-risk claims and what the best argument is, there are issues around what's enough to show if there are at-risk claims? What do you need to show to show that you are at serious risk, as DOJ says, of institutionalization? The DOJ guidance uses serious risk. We have tended to use that serious risk language because it seem tighter than just saying at risk.
Then there are class cert issues on top of that layered in, because when you frame these classes of at-risk people, how you define the at-risk group is also going to raise class cert issues.
So anyway, with all of that, I'm going to turn it back over to Kathryn.
(Laughter)
KATHRYN RUCKER: I was taking notes myself. Just a couple other things about the evolution of these cases really kind of following the decision in Fisher and embolden by the 2011 statement by the Department of Justice. We really did see people pushing the boundary of what unnecessary segregation could be beyond hospital settings, into sheltered workshops, ICS, nursing facilities.
And we also probably got a little bit greedy in the way in which we were trying to extend the likelihood or proximity of the risk.
But you know, in fairness, there evolved a pretty thoughtfully, carefully constructed set of circuit court of opinions that were all relatively aligned with one another.
It's interesting, the reflection, about the MR on bog dissent, because that should have been a warning across the battle. We dodged that bullet, but it came back in U.S. v. Mississippi. It's interesting to think about that problem in light of what the court in the Tenth Circuit in Oklahoma v. Fisher said about the rationale for at risk being the plain absence of language limiting Title II of the integration mandate to institutionalize persons. And what the court in Mississippi and Judge Jones and her panel found was, we are not going to read into the statute, the absence of something to mean an affirmative actionable claim for individuals at risk.
And that reframing is particularly dangerous, now, I think, in view of Loper Bright, and something we have to keep in mind.
And you did a great job actually of already setting out some of the shifting landscape that we are in.
But I just kind of re-echo what we are also seeing among people who are litigating these cases, and I would love to know if some of you are in the room to what you think.
It seems like these cases, as Jennifer said, weren't challenged particularly aggressively at the outset, but now really, all Olmstead community integration indications seem to be much more likely to experience really aggressive defense by public entities or states including much greater likelihood of protracted litigation and trial.
So the potential for the creation of negative precedence is there and for really putting so am of these claims to effectual tests that we haven't always had to in cases that were settled through other means.
And then the circuit split, that both U.S. v. Mississippi and the impending decision in 11th circuit makes any kind of case, win or lose, particularly dangerous, because you can guarantee it is going to be appealed.
Maybe less so if you are practicing in a circuit that already has existing precedent for at-risk, but I suspect even then something to be concerned about.
JENNIFER MATTHIS: Do people have any reactions or questions to that before we switch gears?
>> We are litigating an at-risk claim in Indiana.
And we are in the Seventh Circuit, and we cases both recognizing. Actually, the state has not challenged the existence of an at-risk claim. They are very aggressively challenging that our plaintiffs are at risk but it kind of is interesting with Indiana also participating as one of the states participating in Texas v. Becerra.
But the outside counsel that they have retained in our case has not raised that issue. And with actually have oral argument on the grand of the preliminary injunction early next month, but they haven't raised it. It will be interesting.
I don't foresee the Seventh Circuit raising that as a question if it is not been put to them.
But I think it probably depends on our panel too.
>> One thing about the Mississippi case that I have been wrestling with and I feel like I have read it, like, ten times and it doesn't improve on rereading.
(Laughter)
KATHRYN RUCKER: Sorry, you shouldn't do that to yourself.
>> I'm not suggesting it.
But I think there is questioning at risk as a general matter, which is bad, but then it is also suggesting that we need this kind of individualized evidence to make this type of claim at all. Which if you are representing potentially thousands of people and saying a class action, that could be incredibly difficult.
And so I'm curious, have either of you seen that in your cases? And how have you pushed back against that?
Because if we need some kind of individualized evidence for every single person to show that they are at risk, then I don't see how that case is feasible unless you are willing to devote all your time and energy to just gathering that individualized evidence.
JENNIFER MATTHIS: Yeah, I think that was a broader theme in U.S. v. Mississippi. Even apart from the issue of whether there is an at-risk claim or not, that just the argument that the Fifth Circuit brought that, the ADA's integration mandate is at heart kind of an individualized analysis.
KATHRYN RUCKER: And the Olmstead factor.
JENNIFER MATTHIS: Exactly.
And that these broad-brush Olmstead claims really don't have a place.
And that, obviously, has implications for all of the class action Olmstead cases that we are doing, all of the systemic Olmstead cases we are doing with an associational plaintiff, all of the DOJ systemic Olmstead cases.
So I think to some extent, it's the Fifth Circuit, you know, is that going to be the rule everywhere? That sort of cuts the heart out of Olmstead because, as you know, the defense in Olmstead, the fundamental alterations defense is structured in a way that you, for the most part, in most situations, almost have to bring a class or a systemic case because you have to look at the whole system for the defense. So it's very difficult to bring one person.
You will be accused of line jumping, essentially.
Well, you know, there is lots of people, then you are looking at the whole system. If you move this one person, then we are going to backfill the bed and it is going to cost ... so you almost have to look at it with larger groups of people transitions so that you can close hospital beds, close wings or units and save money, and shift the resources over.
On one hand, you have the Fifth Circuit saying, well, you can't really bring these sort of broad-brush systemic actions under Olmstead. Then on the other hand, you really essentially need to bring those types of actions to effectively enforce Olmstead. So I'm not so sure that that is going to carry today.
But I think that, together with the at-risk, I mean, it seemed like the Fifth Circuit panel was particularly set off by the combination of those two. You know, certainly, Judge Jones says, and with, basically, a couple of experts, looking at a survey of people and just opining that these people are at risk when they are not even real people and they are just looking at this survey, which was not actually a fair characterization of the evidence.
But that aside, I think she lumped the two together.
But I mean, certainly, all of these things, I think, are going to be -- they are coming up now in other cases. You know, defendants have caught on to some of that and they are raising it. You know. If everybody does what the Fifth Circuit does, I think we can hang up Olmstead.
But my hope is that that that's not where we are going.
KATHRYN RUCKER: Yeah, I think that framing coming outs of Mississippi has a lot of framing because of how high profile that case is because our partners are litigating and we are litigating. If it is any consolation, defendants for decades have been trying to unsettle actions to class wide relief for people with disabilities with a very similar to slightly differently frame set of arguments, which have to do with lack of cohesion or lack of common injury, the fact that people have different preferences or they need different discrete services in a continuum of community-based services. And, therefore it's not susceptible to single injunctive relief. We see all of those arguments.
And we have had a lot of success, including our partners, in defeating those arguments by keeping focused on the defendants and their systemic actions and inactions. And keeping the common questions at a level of generality that makes it easy for the court to resolve the legality of those question yes or no without having to delve into the individualized service needs of any given class member.
We would often argue that most state systems have an individual service planning process or another mechanism for determining that, that is more person-centered, that doesn't require the judge to make those determinations. That's the key message to be conveyed.
JENNIFER MATTHIS: We have often attached charts to our briefs, appendices showing all the cases of Olmstead cases.
KATHRYN RUCKER: Before and after Walmart.
JENNIFER MATTHIS: And cases where the courts have allowed systemic actions to proceed under Olmstead. So certainly, there is a lot of law that supports this.
I think one question to think about too though is, what are we getting from bringing at-risk claims? Do we need to do that? Could we get the same relief if we bring cases on behalf of a group of people that are currently -- that are institutionalized? And, you know, obviously, people have brought at-risk claims because it seemed important in part to try to shut the front door to some extent.
Because we all, I think, bring these cases with the hope that these institutions will claps of their own weight at some point or some of them will.
And that has happened to some extent when people are given the choice to transition to the community. It's hard under Olmstead to demand relief that involves closing the institution. The relief tends to be give people the choice to live in a more integrated setting.
But if enough people choose that then sometimes you do see institutions closing when they get below a certain census because it's not viable anymore. Sometimes people are transitioned to other institutions. Sometimes people do end up going to the community.
But you don't have this constant pipeline of people, new people, funneling into the institution. So if you leave the front door open, that happens and it makes it, obviously, much more challenging to achieve the goal of trying to actually reduce the size of the institutions, a number of institutions.
On the other hand I think we have brought cases. I think you've brought cases too where we've had a group of people who are institutionalized as the plaintiffs. I'm thinking we have a consent decree in Illinois, Williams v. Pritzker, which is a set of Olmstead dissent cases.
But this one is people with serious mental illness in these IMD nursing homes. And that class was defined as people who are institutionalized in these facilitates who could live in the community.
And we have gotten relief for people who are in the community, who are not institutionalized to prevent them from going in because we negotiated as part of the consent decree that they -- well, two things. One is we negotiated that by a certain time, there would be no more people in these institutions who could live in the community and wanted to live in the community, or wanted to live in a more integrated setting. So they couldn't have anybody left. So that meant that they had to do something about the front door if they were eventually going to meet that benchmark.
Separately from that, we negotiated front door provisions that said nobody can be admitted after a certain timeframe, that without first being offered community services if they are qualified for them.
So they have set up a front door program and they are not doing as much as they need to, but they have been steadily increasing the capacity of this front door program and diverting hundreds of people every year.
And that was a class that is just defined as people who are currently institutionalized.
So there are certainly, I think, ways that you can still get relief for people even with a claim on behalf of people who are currently institutionalized.
KATHRYN RUCKER: And it's important, especially in this climate, to be thinking about those kinds of alternative strategies or at least weighing them when you are assessing the risks and benefits of having an at-risk claim in your case. Some of the obvious benefits are the ones we already named, the ability to really directly address issues of diversion in preventing unnecessary institutionalization, being able to represent a broader group of solids can potentially benefit that may also have drawbacks we could explore also.
And sometimes those claims are the way you can reach a particular anticipated harm. Like in a state where you may not have a similarly situated group of institutionalized people, but you have an impending cut to PCA services or something else that is going to put a large number of people who haven't yet experienced the injury of institutionalization at serious risk.
But there is also a lot of potential vulnerabilities or ways in which raising an at-risk claim could jeopardize your cases.
And it's really important to think about those. Or at least go in with your eyes open understanding what those vulnerabilities are.
And some of the ones that we've enumerated for ourselves when we have been doing this, the idea that first, you are never going to cover everyone, even if you have an at-risk class that is appropriately narrowed to people who are at serious risk or some other proxy for seriousness.
We talk about this at the center too, this greedy mind idea that you want to solve as many problems as you possibly can with litigation, help as many people as you can.
But sometimes that's just not possible within the bounds of the law or the reality of litigation. And we need to think about more incremental approaches. And sometimes those incremental approaches reform service systems in really significant ways, as Jennifer was describing.
At-risk classes, when you have them, make class certification more challenging, as we have said. Races difficult questions about how you define the class, whether you use the term at risk or some other term or some objective measure that the court can understand.
They are more vulnerable to overbreadth for the reasons that Jennifer said in the Mississippi case or other arguments about class members not being subject to the same common injury.
If you are in a jurisdiction like the 11th circuit or couple of others where ascertainability has been read into Rule 23 class certification requirements, having an at-risk class could be a vulnerability.
Then there are other strategic and pragmatic considerations like in any ADA Olmstead case, you are going to have to deal with potential affirmative defenses.
And the larger your class is and the broader the remedy is, the greater the threat of a successful, fundamental alterations defense would be.
The complexity and the costs of these cases, which is already astronomical, obviously goes up considerably if you add an at-risk class. That could mean thousands of additional class members. And separate set of evidentiary proofs that you would need to demonstrate.
And then just the issue we talked about the concern about how can we now at this time, where we would ideally like to be continuing to push the envelope in these areas of law where we all practice, what do we need to recognize about the current reality?
And how should we be rethinking our approach in a way that's more about protecting, defending, retrenching in the areas where we are more likely to prevail and avoiding some of the arguments that are potentially the most risky.
JENNIFER MATTHIS: Yeah. And sometimes you talked about the extra proof that you need to show and just the extra management of a case with this amorphous at-risk class. Sometimes the at-risk classes are much, much larger than the institutional class. In Florida, for example in DOJ's Florida kids case, there is less than 200 kids who are institutionalized in these nursing homes. The at-risk class is something like 1800 kids.
KATHRYN RUCKER: I think more.
JENNIFER MATTHIS: Yeah.
KATHRYN RUCKER: I think that's a very worthy case because it has to do with children and families who are at risk of going to nursing homes because they can't get enough private duty nursing and other waiver supports.
But I think you would have to think twice about the balance of class representation in a case like that today because so much of your success would depend on being able to demonstrate the at-risk claims.
JENNIFER MATTHIS: So thinking about just the issue of if you do choose to bring at-risk claims, how you frame them, we laid out two possible theories. One being the theory that the statute itself requires or encompasses these type of claims. Because Olmstead interpreted the statute.
Olmstead interpreted discrimination to mean this false choice or -- not false choice, but a choice of causing someone to relinquish their ability to live in the community to get needed services.
That is not a choice that is forced on people without disabilities. So one can make that argument. One can simply make the argument that the violation is the unnecessary institutionalization itself, not the giving people the choice, not the putting people at risk, but just the violation.
And that your class or plaintiffs are simply seeking relief for certainly impending or a harm that is at substantial risk of happening.
I don't know if people are making those arguments, if this is coming up in your cases. It sounds like it is not coming up in your case. I don't know if other people have made any of these arguments, have been faced with this argument at this point.
>> So AARP Foundation along with Disability Rights Center New Hampshire and legal assistance are bringing Fitzmorris v. New Hampshire Department of Health and Human Services, which is an at-risk class that is certified. You want a little glimmer of hope.
KATHRYN RUCKER: Through your shared persistence two times around.
(Laughter)
>> We have been having to do that a lot lately. Just to say, I think that decision is really great. Defendants made a lot of arguments about the class definition, basically, being a failsafe class. In all honesty, it is very, very close and could be seen as a failed safe definition.
But I do think it was certified on grounds -- that ended up not being an issue for defendants because we were just asking for equitable relief. That's a distinction that others want to try to build on.
I would say I think for us in particular, we have an MSJ coming up in the middle of May. So these are very fresh issues on our mind that defense counsel are raising these issues because it is at-risk class.
I think that we are very cautious in trying to understand given the posture that we are in, that's the district of New Hampshire, this is not an existing law. As we mentioned, the state as private counsel who is much more aggressive in this context than they otherwise would be. In other cases, in other moments, I would have thought certain things would be successful or fruitful where they are not in this particular case.
That's just to say the arguments that I have been seeing and the way that we have been framing the harms in particular have been that placing someone at serious risk of institutionalization is the harm itself.
The way you are placing that argument is going to be successful, we will see what happens.
We have several experts one of whom is opining that look for folks who definitively miss half of services.
They are unquestionably at a serious risk of institutionalization. So if we are trying to map on definitions from an expert in a way to make the class seem a little more contained, a little more tethered to Olmstead, it seems like at least in some of the preliminary decisions are on the downward motions, this is an argument that the judge is at least buying at this stage.
I'm also curious knowing anyone's thoughts, I think that going into this case, obviously U.S. v. Mississippi hadn't been decided. We are at where we are at and some of the relief we are seeking can try to be -- some of it we can't. We will see what happens.
But that's just to say I think that there is a lot to be written there. I think it is going to depend a lot on how that structure is perceived by the judge in that case.
>> Before we continue, I'm in here to be a mic runner, if needed. Can everybody hear?
CAPTIONER: No. Can we use the mics? Sorry.
>> I can absolutely run the mic up to people so that everybody can hear.
KATHRYN RUCKER: Thank you. I didn't realize that. Or at least, I didn't appreciate but now, I'm realizing you made a comment of that at the beginning.
But I didn't realize.
>> Yeah, no problem. I probably didn't make myself clear.
KATHRYN RUCKER: It's fine. We are grateful here.
Anybody else have a question? Yes. Behind you.
>> It's me, Grace.
>> I need to grab a mic.
JENNIFER MATTHIS: I can pass you one from here.
>> I think there is only three.
KATHRYN RUCKER: While we are getting the mic over there, for anyone who doesn't know, in the Fitzmorris case, it's about waiver services in the community. So that 50% figure is services that people were already determined to need and found qualified to receive under the waiver but weren't being delivered to them in the community.
JENNIFER MATTHIS: And in the Florida kids case, they focused generally on this 90% of the services for those particular kids. If they get less than 90%, they really are likely to die or go into the nursing home.
>> One quick clarification question. With the Florida children's case, are those children already institutionalized or are they just at risk?
JENNIFER MATTHIS: Well, they were at both.
>> They did place children in institutions?
JENNIFER MATTHIS: They had somewhere between 100 to 200 kids shifting over time in nursing homes in Florida plus other kids who were on the brink, essentially.
>> Okay. Thank you.
My other question, I imagine federal oversight is a bit more stringent than it was in the '60s when institutions like Willowbrook were a thing. Do we know, is the quality at least improved from that for the people that are in there right now?
KATHRYN RUCKER: Probably depends on the facility. But just sticking with the U.S. v. Florida example, it's a great opinion if you have never read it. And one of the things that made a particular difference to that judge, at least in my opinion looking at the papers, is going to visit kids in these facilities and getting a real personal experience of what their lives were like, how limited their lives were, how much their parents wanted them to be home with them, what those barriers were.
JENNIFER MATTHIS: He has this great line about how I observed the brightly painted murals on the wall but no amount of color paintings can defeat the isolation and damage that's done to these kids.
>> Absolutely.
>> So the quality fluctuates, I guess. I guess it is individualized from place to place, it sounds like?
KATHRYN RUCKER: I guess it's fair to say there are more requirements and standards in place. And one of the big -- there is a lot of protection and advocacy organizations in the room I think part of their mission is going into those facilities to try to determine if those standards are actually being met.
JENNIFER MATTHIS: And that whole system came out of things like Pennhurst and Willowbrook.
>> Thank you.
JENNIFER MATTHIS: You are welcome.
>> In the center, the first row.
>> Okay. There you go.
>> Hello. This is Caroline. I'm wearing a fetching ear warmer for those that can't see me.
My question is, basically, do you think this might be a case? So I am somewhat familiar with Olmstead, not familiar with its progeny except that it can be used in many respects that go beyond the fact pattern of the original Supreme Court case.
And so the particular case that I'm thinking about is an existing case, class action, where there is a group of people in this class action who have serious mental illnesses or they have dementia and they are incarcerated. And currently, their primary way out of prison is to appear before a live parole board and prove their suitability for release.
And what we see that the parole board frequently denies parole on the basis of, A, they lack awareness into their mental illness or into their dementia, which itself is a symptom of mental illness or dementia, or they've had disciplinary writeups.
And the system in California, when somebody has a diagnosed serious mental illness and they get a disciplinary writeup, there is a clinician evaluation to see whether their mental illness played a role.
So there would be an explicit finding by a clinician that their mental illness played a role in their reason why this person was disruptive in some manner.
And then a third reason is that there are these psych evaluations and the psychologist, to determine this person's level of risk if they are released into society.
And it's common that the clinician in the evaluation will say, well, in prison, they are low risk but it's a controlled environment. Who knows what things will be like on the outside? So I'm going to say that they are at moderate risk or at high-risk.
And then they get denied parole based on that heightened level of risk. So that seems pretty discriminatory to me, but I don't know if there is an Olmstead case there their incarceration is being prolonged.
But I don't know anything about the progeny to see whether there is a foothold there, an argument to be made.
KATHRYN RUCKER: I'm generally aware that there are a few similar parole cases in our network right now.
But I have to confess that I don't know enough about the details of those cases or how they are progressing.
But I think, you know, you are posing a good question and you are identifying a set of factors that I would agree are potentially discriminatory. I know often cases around release have to do with making release contingent to access to community services that don't exist around available promptly. Then people are held over beyond their criminal sentences.
That's clearly as violation of Olmstead.
That's not what I heard you were describing.
JENNIFER MATTHIS: We brought a case around likers that was just like what you described. Yeah, I think there may be an ADA case, maybe not an Olmstead case.
But more just discriminatory criteria case or something. I think it is challenging to bring Olmstead cases in the context of jails or prisons for one thing. Or any forensic institution where people need to be brought before some other's accord or other tribunal or something where the institution doesn't have just the power to release them like a hospital, director, generally would with somebody who is civilly committed.
So there are fundamental alterations issues that come up.
I think typically what we have done to try to people who are -- for people who are incarcerated, we tried to get that more through looking at people who are at risk, which is this is another application of at risk where we have tried to say, well, they are at risk of hospitalization, unnecessarily institutionalization.
The same services they need to avert that risk are also the services that stop them from getting into the criminal justice system piece of paper line. So we have kind of wrapped into jails into some of our Olmstead cases in that way.
But we've stayed away from forensic institutions and the kind of review boards that you were talking about generally because it's hard to, I think it presents other fundamental alterations problems.
And Debbie Dorfman brought a case.
KATHRYN RUCKER: Yeah.
JENNIFER MATTHIS: I don't know what happened with that.. I don't think it's still active, but I'm not sure.
KATHRYN RUCKER: If you want to leave your contact information with us, we will be happy to stay in touch with you because maybe there are some more examples that we can pride.
>> I think Steven was consulting on that.
KATHRYN RUCKER: He was for a time, yeah.
JENNIFER MATTHIS: Yeah, but I think everyone thought it was pretty challenging.
KATHRYN RUCKER: We have about 15 minutes left in the session. Yeah.
Another question?
>> I have a question. I'm up here. Can you pass the microphone? Probably pass it to the center.
I'm as far from you ...
>> It's all right. Got to get my steps in.
(Laughter)
>> Knowing what we know now about where we are, do you have in mind the earmarks of the kind of at-risk case you think should be brought now? Or is the bottom line, no at-risk cases should be brought now.
JENNIFER MATTHIS: It's a really good question. I think the answer is probably it depends on the second question. I think -- at Bazelon, I can see we have been leaning towards avoiding including at risk and just focusing on classes or associational plaintiff target groups that are institutionalized with the idea that we can still get the same relief essentially. It just sometimes I think it depends on the type of institution. It depends on the disability. Sometimes, how the service system works.
I think, for example, like those DD waivers, I think in the DD context, it's a little bit harder when people have been sitting on waiting lists for a very long time to show that people are at a substantial risk of institutionalization anytime in the near future.
So it just seems like there are a lot of issues that are just fact-based.
But I think in general, our inclination is don't do it now for the most part. There may be exceptions to that. I think if you are trying to get, again, this jail pipeline, I think maybe the only way to really do that is to look at people who are at risk of hospitalization.
But I think there are strong reasons not to do it and to try to get the relief, you know, around the front door without having a specific at-risk class.
I think if you do do it, we are inclined to have the at-risk group be defined as tightly as possible.
I don't know if you want to go through some of -- the different presentations.
KATHRYN RUCKER: You can keep going, but we do have a list of advice, parting advice.
JENNIFER MATTHIS: But something like people who are really, like, at the front door, people who have been referred for admission or something like that, again, it depends. Some things work better for some populations and not others. In nursing homes, you have to have this prescreening, so, you know, you can say people who are being screened or something.
But that doesn't work in another kind of institution. So but either don't do it or do it really tightly is our current leaning.
In terms of how you justify it, if you were challenged on it, I think really that Article 3 standing to seek relief for impending violations is important. It's probably the strongest argument, stronger than the argument that the statute itself creates a cause of action for placing somebody at risk.
KATHRYN RUCKER: Yeah, in other words that would be not incorporating the at-risk claim into your affirmative case, but arguing that the judge in his or her equitable authority could prevent potential harm by providing remedial strategies for people who have not yet been institutionalized. Which is definitely a more conservative alternative, you could think about. And, hopefully, you would get to that stage in your case.
JENNIFER MATTHIS: Put that in the HHS rule too just in case it came up, and it has.
KATHRYN RUCKER: One of the things we did when we were having a national conversation about this a few months ago was look at six or seven different examples of cases that have been brought. ADA, Olmstead, community integration cases, that had either were designed to benefit or had an at-risk class.
Looking across that continuum, you can really see illustrated what are some of the most conservative approaches like cases that say people who experience institutionalization -- who are institutionalized now or will be during dependency of a lawsuit, you know, all the way up to cases where there is no modifier to risk, not even serious risk. If you look at those cases, it helps to illustrate the continuum.
And we think we definitely don't want to be on this end of the continuum. It's way, way too risky right now.
Even the cases that have been previously successful, we were saying to ourselves, there is no guarantee this case would be successful today.
So we shouldn't -- or at least our advice would be, don't blindly go in and try to replicate some of those models. Obviously you wouldn't because there are different facts, et cetera.
But don't assume that those same arguments or approaches or class definitions will necessarily prevail today either. That's just an important cautionary note.
But if you are thinking about using -- trying to include at-risk claims in your case, some of the things that we encourage people to think about at the fact investigation stage, to make sure you are really critically, not just assuming because you know antidotally, but really critically evaluating the evidence of risk of segregation, and what are the specific systemic factors that are placing individuals at risk. That's important for a lot of different reasons.
As Jennifer said, much more commonly now are we coming up against standing and ripeness arguments at the motion to dismiss, and later at class certification. It's really important to be able to plead in your complaint that any alleged serious risk of segregation is causally he connected to the state's actions or inactions.
And you want to be able to, as Jennifer said, describe the probability of that unnecessary segregation as -- even though we always resisted and would say, when we were in argument, you don't have to be on the front door, front step of the institution.
I think nowadays, it's much safer to be able to say it's certainly impending in the clapper style language, or that there is a very significant likelihood. And to bring that proximity of time much closer than we might have otherwise chosen to do in a different climate.
We sometimes refer to that dichotomy around proximity and timeframe as being the whether and the when of unnecessary institutionalization.
And that is something we think you should keep very narrow at this point and going forward.
Because that helps both to make the class more manageable for the court, but it also allows you to articulate the risker of segregation in a much more predictable way than you might otherwise, and avoid the dynamic that they were in Mississippi when the judge was saying, everybody is going to be at risk some time. That's clearly not workable scenario to be in.
And then, I just be prepared in the context of supporting your arguments.
Oh, one other thing. Think about alternatives to having at risk language in the class definition. Jennifer and I were on a case together where we had this elaborate class desks. We had what we thought was the gold standard at the time.
All these different objective factors. And this is still a valid approach. I don't mean to be dismissive of it.
We had four or five different factors that were demonstrated to put people at increased risk of institutionalization and included things you might expect like, interactions with the crisis system or short-term hospitalizations, certain number in a given time period, and interaction or encounter with the justice system that was related to a mental health disability.
JENNIFER MATTHIS: In the past two years.
KATHRYN RUCKER: There were many of them, some even more general than that. When we were reflecting on that definition, I thought it was kind of a miracle.
But at the same time that we got that class certified -- but at the time, what is true and I think is still true today. If you are going to be using terminology around at risk, you need to define what means being at serious risk means. You better have some particular criteria that you can talk to the court about so it is not this amorphous thing. It's not something that is arguably overbroad or really hard to define, or the judge is asking you ten yes about how she would know who is in the class.
You want to try to avoid being in that situation by being really as clear as possible.
And I think what we would have done was draw those criteria more narrowly and make the time periods shorter.
JENNIFER MATTHIS: Yeah, I think didn't we get to those criteria because the judge pushed at the first class cert hearing for tighter criteria, so we ended up -- I think we had --
KATHRYN RUCKER: Yeah, maybe. Our colleague Steve Schwartz stood up at that oral argument. Before he could introduce himself. The judge said, well, counsel, you are not telling me that everyone who is institutionalized in New Hampshire hospital is there unnecessarily, are you?
That started a long discourse, which at the end, we changed the class definition in the context of the oral argument to say, to include the word unnecessary.
So there are all these different permutations that we are used to navigating. You can see how some of the issues of the at-risk claim can really complicate that in ways where now we are looking to avoid unnecessary complication and really get back to the basic, most solid claims that we have.
JENNIFER MATTHIS: And we have a pending class cert motion in Bazelon in a case that has been pending for a very, very, very long time.
And it looks like that definition.
And now we are thinking of going back and changing it because even though it's awkward to do so at this point, but it doesn't seem like it is going to fly.
KATHRYN RUCKER: That's tricky. Yeah.
Just two other things and a nod to the earlier Loper Bright conversation. I think in addition to having experts, firstly, who are prepared to talk about why people are at risk, how their risk could be avoided with access to whatever the appropriate remedial services are that you are seeking, think about what precedents you are going to rely on.
And we would urge you to think about other court decisions that have an independent analysis of at-risk claims, or at least are couched in respect for the Department of Justice's interpretation of its regulations and the statute.
And then to be prepared to talk about the things we talked about this morning, including the agency's expertise, their delegated express authority, the consistency of the regulations over time floor that was established by regulations in Section 504, for example.
And then to avoid overreliance on the DOJ guidance as the basis for at-risk claims.
If you look across all of the Circuit Court decisions, not only is it remarkable of how many rely on and cite to that, really what we think is, yes, I get it. This impassioned dicta about what you make the integration mandate meaningless.
But a lot of courts cite to the DOJ guidance too. And not all with the same language and some of them with the Chevron-like language that now I think we need to be a little more skeptical about. So taking a moment to really read those cases carefully and choose the ones that you are going to lift up, if you can.
JENNIFER MATTHIS: Yes. DOJ's last statement of interest said, in fact don't rely just on our guidance. In fact, these courts have done their own independent analysis. We were look at, I think at MR actually, because we were --
KATHRYN RUCKER: Yes.
JENNIFER MATTHIS: To say, no, they didn't just rely on guidance. They did their own independent analysis. So it passes muster under Kaiser.
KATHRYN RUCKER: Yes. In fact, DOJ did a lot of really great statements of interests last year. This one which came out at the beginning of this year, I think, is among the best. It really represents an evolution of their thinking on this, their treatment of the U.S. v. Mississippi decision, some of the issues that we are thinking about in anticipation of Loper Bright challenges, and a pretty nuanced description of what's the source of the at-risk claim from a legal perspective.
If you read anything after this workshop, I suggest go read that statement of interest, or download it quickly while you still can.
(Laughter)
If you can't find it, contact one of us.
>> What was the DOJ review on that brief?
(Laughter)
>> Secret.
KATHRYN RUCKER: We are at time, but we can hang around if anyone has any other questions. I assume you have a short break to navigate to the last workshop.
(Applause)
Thank you.