Kenneth R. v. State of N H , et al.

2013 DNH 123P

• Court: District Court, D. New Hampshire
• Decided: September 17, 2013
• Docket: 12-CV-053-SM
• Status: Published

Opinion

Kenneth R. v . State of N H , et a l . 12-CV-053-SM 9/17/13 P UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Kenneth R., by his Guardian Tri-County CAP, Inc./GS; Sharon B . and Amanda E . , by Their Guardian the Office of Public Guardian, Inc.; Jeffrey D., by his Guardian Monique Doukas; and Amanda D., Plaintiffs Case N o . 12-cv-53-SM v. Opinion N o . 2013 DNH 123P

Margaret W . Hassan, Governor of the State of New Hampshire; Nicholas A . Toumpas, Commissioner of the NH Department of Health and Human Services; Nancy L . Rollins, Associate Commissioner of the NH Department of Health and Human Services, Community Based Care Services; Mary A . Cooney, Deputy Commissioner, NH Department of Health and Human Services, Direct Programs/Operations; Erik G. Riera, Administrator, NH Bureau of Behavioral Health, Defendants

The United States of America, Plaintiff-Intervenor

v. The State of New Hampshire, Defendant

O R D E R

The plaintiffs and intervenor claim that the State of New

Hampshire unnecessarily institutionalizes people with serious mental illnesses, in violation of the integration mandates of the

Americans With Disabilities Act, 42 U.S.C. § 12131(2), and the

Rehabilitation Act, 29 U.S.C. § 794. The named plaintiffs seek

certification of an appropriate class, doc. n o . 7 3 , and class-

based relief. The United States, as intervenor, supports the

motion for class certification. Defendants object, however,

arguing that the requirements for certification under Fed. R.

Civ. P. 23(a) and 23(b)(2) are not met.

Background

Title II of the Americans with Disabilities Act of 1990

(“ADA”), 42 U.S.C. § 12132, provides that “no qualified

individual with a disability shall, by reason of such disability,

be excluded from participation in or be denied the benefits of

the services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.” Id. at

§ 12131(2). A “public entity” includes State and local

governments, and “any department, agency, special purpose

district or other instrumentality of a State . . . or local

government.” Id. at § 12131(1)(A) & ( B ) .

The needless segregation of persons with disabilities — in

institutions — is a form of “discrimination” prohibited by the

ADA. Olmstead v . L.C. ex rel. Zimring, 527 U.S. 5 8 1 , 5 8 7 , 588

2 (1999) (relying, in part, on Congress’s finding “[i]n the opening

provisions of the ADA,” that “discrimination against individuals

with disabilities persists in . . . institutionalization”). To

comply with the ADA’s “integration mandate” (i.e., the

requirement that persons with disabilities be “integrated” in

general society to the extent reasonably feasible), states must

“provide community-based treatment for persons with mental

disabilities” when

(1) the State’s treatment professionals have determined that community placement is appropriate,

(2) the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and

(3) “the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.”

Id. at 607.

The Attorney General’s implementing regulations also contain

an integration mandate, which requires public entities to

administer programs “in the most integrated setting appropriate

to the needs of qualified individuals with disabilities.”

28 C.F.R. § 35.130(d). 1 The regulations, likewise, prohibit

public entities from “utiliz[ing] criteria or methods of

1 An “integrated setting” is one that “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible . . . .” 28 C.F.R. P t . 3 5 , App. B .

3 administration . . . that have the effect of subjecting qualified

individuals with disabilities to discrimination,” 28 C.F.R.

§ 35.130(b)(3), including needless segregation. See Day v .

District of Columbia, 894 F. Supp. 2d 1 , 22 (D.D.C. 2012) (To

state a claim under the ADA, it is “sufficient to allege . . .

that the [government] has utilized criteria or methods of

administration that have caused plaintiffs to be confined

unnecessarily in nursing facilities.”) (internal punctuation and

quotation marks omitted).

Although a public entity must make “reasonable modifications

in policies, practices, or procedures” to avoid unnecessarily

segregating persons with disabilities, 28 C.F.R. § 35.130(b)(7),

that obligation is not absolute. The regulations “allow[] States

to resist modifications” to their policies, practices, and

procedures that “entail a fundamental alteration” of their

services and programs. Olmstead, 527 U.S. at 603 (internal

punctuation omitted) (citing 28 C.F.R. § 35.130(b)(7)).

The Rehabilitation Act (“RA”) and its regulations similarly

prohibit discrimination on the basis of disability, 29 U.S.C.

§ 794(a) and 28 C.F.R. § 41.51(a); require that services be

provided in the most integrated setting, 28 C.F.R. §§ 41.51(d);

and make it a violation of the Act to use methods of

4 administration that subject individuals to discrimination, 28

C.F.R. § 41.51(b)(3), 45 C.F.R. § 84.4(b)(4). See Bryson v .

Stephen, 2006 WL 2805238, at *3 (D.N.H. Sept. 2 9 , 2006) (“The

Rehabilitation Act contains . . . similar provision[s]” to the

ADA).

The Nursing Home Reform Act (“NHRA”), 42 U.S.C.

§ 1396r(e)(7)(D)(ii), also addresses the unnecessary segregation

of people with mental disabilities. The NHRA mandates a

screening process “called a Preadmission Screening and Annual

Resident Review (PASARR).” Voss v . Rolland, 592 F.3d 2 4 2 , 246

(1st Cir. 2010) (citing 42 U.S.C. § 1396r(e)(7)(B)(ii)). Under

the PASARR provisions, applicants to Medicaid-certified nursing

facilities must be evaluated to determine whether they have a

mental illness and whether they meet level-of-care criteria.

Those that pass this initial screening are evaluated to determine

the most appropriate setting for their needs, which may include a

community setting. 42 C.F.R. § 483.128, et seq.

The named plaintiffs in this putative class action are

people with serious mental illnesses who are institutionalized in

one of the State’s institutional treatment facilities, New

Hampshire Hospital (“NHH”) or the Glencliff Home (“Glencliff”),

or who are alleged to be at serious risk of institutionalization

5 in those facilities. Seeking to represent a class of similarly

situated persons, the named plaintiffs allege that the defendants

– the Governor of New Hampshire, officials of the New Hampshire

Department of Health and Human Services, and the Administrator of

the New Hampshire Bureau of Behavioral Health (collectively, the

“State”) – are violating the integration mandates of the ADA and

the RA, in that they rely excessively on the provision of

institutional care to treat mental illness, rather than

appropriate community-based care programs, and, relatedly, have

failed “to develop an adequate array” of community-based

services. Complt., doc. n o . 1 , at ¶¶ 6-7, P l . Br., doc. n o . 73-

1 , at 4 . Plaintiffs also allege that the State is violating the

NHRA by failing “to develop and implement an [adequate] PASARR

program” for Glencliff residents and applicants. Complt., doc.

n o . 1 , at ¶ 130.

With regard to their integration mandate claims, plaintiffs

assert two legal theories. They say that the State’s pattern and

practice of under-funding community services and its over-

reliance on institutional treatment has created a systemic

deficiency in the array of available community services, which,

in turn, has 1 ) contributed to the unnecessary

institutionalization of people with serious mental illnesses; and

2 ) contributed to the placement of people with serious mental

6 illnesses at serious risk of unnecessary institutionalization.2

The “at risk” theory is based on the Attorney General’s technical

guidance interpreting its integration mandate regulation. See

U.S. Dept. Of Justice, Statement of the Department of Justice on

Enforcement of the Integration Mandate of Title II of the

American with Disabilities Act and Olmstead v . L.C.,

http://www.ada.gov.olmstead/g&a_olmstead.htm (last updated June

2 2 , 2011). As counsel for the United States explained at oral

argument: “We clearly state [in our technical assistance guide]

that the ADA and Olmstead do[] extend to people who are at

serious risk of institutionalization, and you don’t have to wait

until you suffer the harms of being institutionalized before

being able to state a claim.” Hrg. Tr., doc. n o . 8 9 , at 119.

The appellate courts for the Fourth, Ninth, and Tenth Circuits

agree. See Pashby v . Delia, 709 F.3d 3 0 7 , 321-22 (4th Cir.

2013); M.R. v . Dreyfuss, 663 F.3d 1100, 1116-17 (9th Cir. 2011),

amended by 697 F.3d 706 (9th Cir. 2012); Fisher v . Okla. Health

Care Auth., 335 F.3d 1175, 1181 (10th Cir. 2003). The court

accepts the theory as viable.

2 The State suggests, without developed argument, that class members who are “at serious risk” of needless institutionalization do not have standing. The State did not brief the issue, but only mentioned it at oral argument, and it i s , as presented, unpersuasive.

7 Plaintiffs seek a declaratory judgment, and injunctive

relief requiring the State to develop and provide an adequate

array of identified community-based treatment services: mobile

crisis services, Assertive Community Treatment (“ACT”), supported

housing, and supported employment. They do not seek

individually-tailored injunctions regarding appropriate treatment

for each class member.

The court denied, without prejudice, plaintiffs’ first

motion for class certification and allowed limited discovery on

the certification issue. See 6/11/12 Minute Order. That

preliminary discovery period is now concluded. In support of

their renewed motion for certification of a Rule 23(b)(2)

injunctive class, plaintiffs have provided a body of evidence

they say fully supports their request, because it shows that the

State’s pattern or practices relating to the funding and

provision of community-based services has had the effect of

creating a system-wide deficiency in community services that

adversely affects a large class of persons with serious mental

illnesses.

Plaintiffs point first to the State’s own reports, in which

the State has itself repeatedly identified a widespread, and

problematic, deficiency in community services. In 2004, DHHS

8 convened a task force of experts comprised of mental health

professionals, administrators, and stakeholders to study the

causes o f , and to suggest remedies for, the significant

“imbalances in the mental health system of New Hampshire that

cause many consumers to receive care at NHH rather than community

alternatives.” Complt., doc n o . 1 , at ¶ 5 3 . The task force

concluded that “many people are admitted to and remain at NHH

because of a lack of . . . alternatives.” Id. It found a

problematic decline in crisis and other community mental health

services, and it pointed out that there had been “virtually no

investment or development” in community residential services.

Id. at ¶ 5 4 .

In 2007, a legislative commission made similar findings and

warned of “shrinking community resources.” It emphasized the

need for the State to expand services such as ACT, supported

employment, and supportive housing. Id. at ¶ 5 5 . In 2008, with

the support of DHHS, another panel of mental health professionals

was convened to assess New Hampshire’s mental health services

system and to make recommendations for meeting the critical needs

of people with serious mental illnesses. In its report, entitled

“Addressing the Critical Mental Health Needs of NH’s Citizens, A

Strategy for Restoration,” the panel found that “many individuals

are admitted to New Hampshire Hospital because they have not been

9 able to access sufficient [community] services in a timely manner

(a ‘front door’ problem) and remain there, unable to be

discharged, because of a lack of viable community-based

alternatives (a ‘back door’ problem).” Id. at ¶ 5 6 . The report

called for, among other things, additional crisis services,

supportive housing, and ACT teams. Id.

Plaintiffs also rely on evidence of statistical patterns of

repeated hospitalizations at NHH and lengthy institutionalization

at Glencliff suggesting a systemic deficiency in available

community-based services that forces people to seek treatment in

institutions and to remain institutionalized unnecessarily. In

addition, they point to the findings of the United States. In

its review of the State’s mental health system, the U.S. Dept. of

Justice found that the State’s failure to provide services to

individuals with serious mental illness in the most integrated

setting appropriate to their needs “has led to the needless and

prolonged institutionalization of individuals with disabilities,”

and that the “systemic failures in the State’s system place

qualified individuals with disabilities at risk of unnecessary

institutionalization now and going forward.” Id. at ¶ 7 0 ,

(quoting United States’ Investigation of the New Hampshire Mental

Health System (April 7 , 2011)).

10 Plaintiffs’ experts echo that finding. In their “System

Review,” the experts found the same systemic deficiencies in

community services that the State previously identified. Pl.

Br., doc. n o . 73-1, at 12-14. In a separate “Client Review,”

plaintiffs’ experts also concluded that there exists a large

class of persons with mental illnesses who are affected by the

deficiency in available community-based services. For that

study, the “NHH and Glencliff experts reviewed approximately two

years of facility and community mental health records, conducted

in-person meetings and observations with review participants, and

interviewed guardians and mental health providers.” P l . Br.,

doc. n o . 73-1, at 9. The experts concluded that 80-96% of review

participants would have avoided institutionalization, would have

spent less time hospitalized, or could be discharged, and would

likely choose to live in the community, if they were fully

informed of and had access to community-based treatment services.

One of plaintiffs’ experts, D r . Sally Rogers, opined that these

conclusions can be reliably generalized to the broader population

of persons institutionalized in the named facilities. Rogers

Aff., doc. n o . 73-18, ¶¶ 1 1 , 1 4 . Glencliff is a 120-bed

facility, and NHH experienced over 1800 adult admissions in 2010.

Extending those conclusions to the larger populations would yield

a class size pertinent to the ADA and RA claims numbering in the

hundreds.

11 The State argues that the experts’ client review should be

excluded from consideration under Daubert v . Merrell Dow Pharm.,

Inc., 509 U.S. 579 (1993), because the review’s design was not

methodologically sound and its implementation was not reliable.

In support of its argument, the State submitted an affidavit from

its expert, D r . Leonard Flynn. D r . Flynn has experience in

conducting research studies and is Professor Emeritus at

Framingham State University, where he has “taught courses at the

graduate and undergraduate level through the Psychology and Math

Departments since 1970,” including Statistics, Research Methods,

and Experimental Psychology. Flynn Aff., doc. n o . 77-17. Dr.

Flynn avers that the client review suffers from several errors.

Although the State advanced its Daubert argument in its

brief in opposition, it did not seek a Daubert hearing or press

the issue at oral argument. Development of the issue, therefore,

has been minimal. Nevertheless, the argument is unsupportable in

light of the averments of plaintiffs’ expert, D r . E . Sally

Rogers, Research Associate Professor and Director of Research for

the Center for Psychiatric Rehabilitation at Sargent College of

Health and Rehabilitation Sciences, Boston University. See

Rogers Aff., doc. n o . 73-18; Rogers Supp. Aff., doc. n o . 82-2.

Dr. Rogers cogently, directly, and persuasively rebuts D r .

12 Flynn’s challenges to the client review. See Rogers Supp. Aff.,

doc. n o . 82-2.

Beyond its challenge to the client review, the State

submitted evidence regarding the needs and preferences of persons

institutionalized at Glencliff and NHH. The State’s experts –

NHH’s Associate Medical Director and Glencliff’s Administrator –

conducted reviews of patient histories and health records,

concluding that a large percentage of patients were properly

admitted to these institutions and continue to need institutional

care “no matter what community-based services are available,” and

that they prefer such treatment. Def. Br., doc. n o . 7 7 , at 20-

27.

Discussion

This case presents as a familiar Olmstead integration

putative class action. The named plaintiffs “challenge[] a

system-wide policy or practice that [allegedly] affects” a class

of persons with disabilities, and they seek class treatment of

the claims despite differences in class member disabilities,

needs, and treatment preferences. Armstrong v . Davis, 275 F.3d

849, 868 (9th Cir. 2001). Relying on a developed body of case

law permitting class certification in cases similar to this one,

and on intimations in Olmstead itself that class certification is

13 generally appropriate in integration mandate cases,3 plaintiffs

argue that class certification is warranted.

The State opposes class certification primarily on grounds

that individual differences in disabilities and treatment

preferences exist between and among putative class members, and

similar differences exist between and among putative class

members and the named plaintiffs. The crux of the State’s

objection is that, while courts in many Olmstead integration

cases have granted class certification, the Supreme Court’s

relatively recent decision in Wal-Mart Stores, Inc. v . Dukes,

U.S. __, 131 S . C t . 2541 (2011), has dramatically changed the

class action landscape, such that the individualized nature of

each putative class member’s particular circumstances necessarily

undermines plaintiffs’ ability to meet Rule 23(a)'s commonality,

3 As the United States points out, in defining rights and duties under the ADA’s integration mandate, the court in Olmstead, by negative implication, seemed to tie the class action procedural device to vindication of rights under the integration mandate. See Olmstead, 527 U.S. at 606 (warning against “displacement of persons at the top of the community-based treatment waiting list by individuals lower down who commenced civil actions.”). Id. That Olmstead claims may, as a general matter, be suited for class treatment is also suggested by the fact that the fundamental alteration defense involves an inquiry into the needs of all persons served by the state’s mental health system. Id. Class treatment would avoid “repetitious resolution” of that inquiry. Gintis v . Bouchard Transp. Co., 596 F.3d 6 4 , 67 (1st Cir. 2010) (“[M]ost or all cases, if individually litigated, would require repetitious resolution of an objection by [defendant] that is common to each one of them.”).

14 typicality, and adequacy of representation prerequisites, as well

as Rule 23(b)(2)’s requirements. See Def. Surreply, doc. n o . 8 8 ,

at 2 . The State also argues that class certification should be

denied outright, because the involvement of the intervenor-

plaintiff, the United States, makes class-based litigation

unnecessary in this case.

I. The Involvement of the United States

Under the “reasonably clear” language of Rule 23(b)(2),

“whether the action should be maintained as a class action

depends on the appropriateness of injunctive or corresponding

declaratory relief with respect to the class as a whole.” Dionne

v . Bouley, 757 F.2d 1344, 1356 (1st Cir. 1985) (emphasis in

original). One factor a court may consider in determining the

appropriateness of class certification is the fact that “the same

relief can be obtained without certifying a class . . . .” Id.

The State notes that the United States is seeking the same relief

as are plaintiffs. S o , it asserts, the court should exercise its

discretion to deny class certification as unnecessary.

The court in Bouley, however, recognized that “[t]here may

. . . be situations where a class certification under Rule

23(b)(2) will arguably be unnecessary, but where other

considerations may render a denial of certification improper.”

15 Id. It offered, as one of several examples, a situation in which

“class certification does not impose any significant burden on

the court.” Id. That is the case here. As the United States

points out, full discovery will be at the “same scale and the

Parties will be moving toward trial at the same rate, whether or

not the Plaintiff class is certified.” Intervenor Br., doc. n o .

8 4 , at 6.

And, there is another reason why the United States’

participation does not render class certification inappropriate.

Although the interests of the plaintiff class and the United

States overlap significantly, those interests are not coextensive

— and the differences can reasonably be expected to affect both

litigation and settlement strategies. As the United States says,

it is “[c]harged with developing a national enforcement program,”

and it seeks consistency in its approach across all of its cases,

without compromising its decision-making “to meet the specific

needs of class members in a particular case.” Id. at 3-4.

Representative plaintiffs, on the other hand, are duty-bound to

advocate for the best interests of the particular defined class,

regardless of how decisions or outcomes in this litigation might

influence governmental policy positions, or other cases in

litigation, across the country.

16 For these reasons, class certification is not rendered

“inappropriate” by virtue of the involvement of the United

States.

II. Legal Standards for Class Certification

The party seeking certification must establish “the elements

necessary for class certification: the four requirements of 23(a)

and one of the several requirements of Rule 23(b).” In re

Relafen Antitrust Litig., 218 F.R.D. 3 3 7 , 341 (D. Mass. 2003)

(citing Smillow v . Southwestern Bell Mobile Sys., 323 F.3d 3 2 , 38

(1st Cir. 2003)). Whether the movant has carried that burden is

a question the district court must resolve through a “rigorous

analysis” of Rule 23's requirements. Id. (citing General Tel.

C o . of Southwest v . Falcon, 457 U.S. 1 4 7 , 161 (1982)). That

analysis “may ‘entail some overlap with the merits of the

plaintiff’s underlying claim.’” Amgen Inc. v . Connecticut Ret.

Plans and Trust Funds, ___ U.S. ___, 133 S . C t . 1184, 1194 (2013)

(quoting Wal-Mart, 131 S . C t . at 2551). But the overlap must

necessarily be limited, for “Rule 23 grants courts no license to

engage in free-ranging merits inquiries at the certification

stage.” Id. Instead, “[m]erits questions may be considered to

the extent – but only to the extent – that they are relevant to

determining whether the Rule 23 prerequisites for class

certification are satisfied.” Id. at 1195. In short, “[b]y

17 sifting the abundant evidence through the sieve of the legal

claims, [a] court [will] satisf[y] the requirement to perform a

‘rigorous analysis.’” Glazer v . Whirlpool Corp., __ F.3d __,

2013 WL 3746205, at *9 (6th Cir. July 1 8 , 2013) (quoting Wal-

Mart, 131 S . C t . at 2551)).

In addition to the explicit requirements of Rule 2 3 , courts

generally recognize the “implicit requirement” that the class

definition must be sufficiently definite to allow the court,

parties, and putative class members to ascertain class

membership. Shanley v . Cadle, 277 F.R.D. 6 3 , 67-68 (D. Mass.

2011).

III. Class Definition

The level of precision, or “definiteness” required, varies

depending on the type of class sought to be certified under part

(b) of Rule 2 3 . See Newberg on Class Actions, § 3:7 (5th ed.

June 2013). A high level of precision in defining class

membership is necessary, for example, in (b)(3) classes, because

all class members must be identified in order to notify each of

his or her opt-out rights, and, later, to distribute monetary

relief. See Yaffe v . Powers, 454 F.2d 1362, 1366 (1st Cir.

1972). In contrast, where certification of a (b)(2) injunctive

class is sought, “actual membership of the class need not . . .

18 be precisely delimited” because “notice to the members . . . is

not required.” Id. See also Shook v . El Paso Cty., 386 F.3d

963, 972 (10th Cir. 2004) (relying on Yaffe, and finding proposed

class definition sufficiently definite, explaining that “Rule

23(b)(2) [is] well suited for cases where the composition of a

class is not easily ascertainable” due to the “shifting” nature

of the population); McCuin v . Sec. of Health and Human Svcs., 817

F.2d 1 6 1 , 167 (1st Cir. 1987) (“[W]here only declaratory and

injunctive relief is sought for a class, plaintiffs are not

required to identify the class members once the existence of the

class has been demonstrated.”).

The named plaintiffs in this case seek certification of a

(b)(2) injunctive class. They propose the following class

definition:

All persons with serious mental illness who are unnecessarily institutionalized in New Hampshire Hospital or Glencliff or are at serious risk of unnecessary institutionalization in these facilities.

Hrg. Tr., doc. n o . 8 9 , at 6 0 .

Plaintiffs originally proposed a definition that mirrored,

and was as broad a s , class definitions that have been routinely

approved in previous ADA integration cases. That proposed class

definition did not include the words “unnecessarily” and

“unnecessary” before the words “institutionalized” and

19 “institutionalization,” respectively. Plaintiffs added those

words at oral argument, however, in response to the court’s

inquiries. Although Yaffe does not require that the proposed

definition of the (b)(2) class in this case “precisely delimit[]”

class membership, the modification is a decided improvement

because it narrows the class to include only those who are

allegedly harmed or affected by the State’s conduct. In short,

the proposed class definition, as modified, accurately

articulates “the general demarcations” of the class of

individuals who are being harmed by the alleged deficiencies in

the State’s provision of community services. Floyd v . City of

New York, 283 F.R.D. 153, 172 (S.D.N.Y. 2012) (“[G]eneral class

descriptions based on the harm allegedly suffered by plaintiffs

are acceptable in class actions seeking only declaratory and

injunctive relief under Rule 23(b)(2).”) (quotation omitted).

Contrary to the State’s assertion, nothing in Crosby v .

Social Sec. Admin., 796 F.2d 576 (1st Cir. 1986), and Carrier v .

Am. Bankers Life Assur. C o . of Florida, 2008 WL 312657, at *4

(D.N.H. Feb. 1 , 2008) (DiClerico, J.)) prohibits defining this

(b)(2) class by reference to the harm allegedly suffered, that

i s , by general reference to the harm associated with (the merits

of) each class member’s claim. See generally Newberg on Class

Actions, Sec. 3:6 (describing a “fail-safe” class — which some

20 courts prohibit under some circumstances — as one that

“require[s] a court to decide the merits of prospective

individual class members’ claims to determine class

membership.”). In both Crosby and Carrier, unlike here,

notification to every class member would have been required, thus

the class members had to be readily ascertainable, i.e.,

ascertainable without “individualized fact-finding and

litigation.” Crosby, 796 F.2d at 580 (plaintiffs sought

certification of a (b)(2) class, but requested an injunction

ordering the defendant to notify all class members of their

rights under federal law; “Without an identifiable class of

disability claimants, we cannot grant class-wide relief in this

case either in the form of granting notices or compiling status

reports.”); Carrier, 2008 WL 312657, at *2 (plaintiffs sought to

certify a (b)(3) class, which requires notice). In the absence

of any need to notify each class member, or distribute monetary

relief, the proposed class here is appropriately defined in part

by reference to the harms allegedly suffered by its members as a

result of the violations asserted.

Plaintiffs also proposed in their reply brief (but did not

formally include in their proposed class definition) additional

definitional language in response to the State’s objection that

the phrase “at serious risk” is impermissibly “contingent on a

21 particular state of mind,” and that this “imprecision [is] . . .

compounded by the failure to include any sort of temporal

limitation” on who is “at serious risk.” Def. Br., doc. n o . 7 7 ,

at 8-9. The proposed language reads:

At risk of institutionalization means persons who, within a two year period: (1) had multiple hospitalizations; (2) used crisis or emergency room services for psychiatric reasons; (3) had criminal justice involvement as a result of their mental illness; or (4) were unable to access needed community services.

Although it does not define who is at “serious” risk, the

proffered language provides some objective and relevant limiting

criteria, and serves to narrow the class as well by imposing a

reasonable temporal limitation. The proposed limiting language,

therefore, adequately addresses the State’s objection.

For these reasons, the court finds that the proposed class,

as modified at oral argument and as supplemented by plaintiffs’

proffered language defining those “at risk,” is sufficiently

definite.

IV. Rule 23(a)

Rule 23(a) sets forth four “requirements applicable to all

class actions”: numerosity, commonality, typicality, and adequacy

22 of representation. Amchem Prods., Inc. v . Windsor, 521 U.S. 5 9 1 ,

613 (1997); Fed. R. Civ. P. 23(a).

A. Numerosity

Under Rule 23(a)(1), the class must be “so numerous that

joinder of all members is impracticable.” Fed. R. Civ. P.

23(a)(1). The numerosity requirement “has two components, the

number of class members and the practicability of joining them in

a single case.” Rolland v . Cellucci, 1999 WL 34815562, at *3 (D.

Mass. Feb. 2 , 1999).

1. Number of Class Members

The exact number of class members need not be established,

“particularly where . . . only declaratory and injunctive relief

is sought.” Rolland, 1999 WL 34815562, at * 3 . In deciding

whether plaintiffs have met the numerosity requirement, the court

“may draw a reasonable inference as to the size of the class

given the facts before it.” Id. at * 3 .

Plaintiffs’ evidence, which includes the State’s own

reports, the findings of the United States, and the opinions of

plaintiffs’ experts, establishes that the proposed ADA and RA

class is comprised of hundreds of persons. With regard to the

PASARR claim, however, the number of class members has not been

23 even roughly established. Assuming that there are, as alleged,

deficiencies in the State’s PASARR screening protocol at

Glencliff, the proffered evidence does not support an adequate

inference that the number of persons negatively affected by the

asserted deficiencies is sufficiently large to warrant class

treatment. Class certification, therefore, is denied as to the

PASARR claim.

2. Impracticability of Joinder

The requirement that joinder of the ADA and RA class be

impracticable is easily met. The size of the class, the asserted

disabilities of proposed class members, and geographic diversity,

make it “highly unlikely that separate actions would follow if

class treatment were denied.” Armstead v . Pingree, 629 F. Supp.

273, 279 (M.D. Fla. 1986). See also Rolland, 1999 WL 34815562,

at *3 (finding joinder impracticable in light of “the inability

of nursing home residents with mental retardation and

developmental disabilities to initiate actions on their own

behalf”).

In sum, the evidence plainly demonstrates that the size of

the proposed ADA and RA class “is so numerous that joinder of all

members is impracticable.”

24 B. Commonality

Rule 23(a)(2) requires that there be “questions of law or

fact common to the class.” Fed. R. Civ. P. 23(a)(2). Although a

court need find only a “single common question,” Wal-Mart, 131

S . C t . at 2556 (quotation and alterations omitted), a certain

rigor, as prescribed by the Supreme Court in Wal-Mart, must

attend the commonality inquiry.

The plaintiffs in Wal-Mart were current and former female

employees who brought Title VII employment discrimination claims

against the defendant company. Id. at 2547. They alleged that

Wal-Mart operated under a general policy of gender discrimination

relating to pay and promotion decisions, specifically, that the

company had a policy of leaving such decisions to the discretion

of local managers within a corporate culture suffused with

gender-biased stereotypical thinking. Id. at 2548. The district

court certified a class under Rule 23(b)(2), and the appellate

court affirmed. On appeal to the Supreme Court, the company

argued that certification was improperly granted. It contended,

among other things, that there was no commonality among class

members because plaintiffs had not shown that the company

operated under a general policy of discrimination that affected

all class members. The Court agreed.

25 “Commonality,” the Court stated, “requires the plaintiff to

demonstrate that the class members have ‘suffered the same

injury.’” Id. at 2551 (quoting General Telephone C o . of

Southwest v . Falcon, 457 U.S. 1 4 7 , 157 (1982)). This requirement

cannot be met, however, simply by showing that the class members

“have all suffered a violation of the same provision of law,”

since such a showing would “give[] no cause to believe that all

[class members’] claims can productively be litigated at once.”

Id. at 2551. Rather, “claims must depend upon a common

contention” that is “capable of classwide resolution – which

means that the 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. “‘What matters to class

certification,” the Court emphasized, “is not the raising of

common questions — even in droves — but, rather the capacity of a

classwide proceeding to generate common answers apt to drive the

resolution of the litigation.’” Id. at 2551 (quoting Richard A .

Nagareda, Class Certification in the Age of Aggregate Proof, 84

N.Y.U. L . Rev. 9 7 , 132 (2009)) (emphasis in original). Notably,

“dissimilarities within the proposed class . . . have the

potential to impede the generation of common answers.” Id. at

2551 (quotation omitted).

26 Applying those principles to the case before i t , the Court

held that the named plaintiffs were required to provide

“significant proof” that the defendant “operate[d] under a

general policy of discrimination” that “touch[ed] and concern[ed]

all members of the class.” Id. at 2552, 2557 & n.10 (quotations

omitted). The Court found that plaintiffs did not carry their

burden. Although they alleged that the defendant had a

companywide policy of allowing local managers to exercise

discretion in hiring and promotion decisions, plaintiffs failed

to “identif[y] a common mode of exercising discretion that

pervade[d] the entire company.” Id. at 2555. Their primary

evidence of a common mode or practice was testimony from a

sociological expert that gender “stereotypes play[ed] a

meaningful role” in local managers’ exercise of discretion. Id.

at 2553. But, the Court noted, the expert could not say “whether

.05 percent or 95 percent of the employment decisions” were

affected by stereotyped thinking. Id. at 2554. The Court also

rejected as insignificant the affidavits of 120 female employees

detailing their experiences of sex discrimination. Those

employees, the Court noted, comprised only a very small

percentage of the class (“about 1 for every 12,500 class

members”). Id. at 2556. Plaintiffs’ regression analysis, which

showed a gender disparity in promotions, likewise, did not

provide the required significant proof. The analysis failed to

27 link local decisions with the disparity shown. Id. at 2555. At

bottom, plaintiffs did not “provide . . . convincing proof of a

companywide discriminatory pay and promotion policy.” Id. at

2556-57. The Court held, therefore, that the district court

erred in certifying the class. Id.

Under Wal-Mart’s clarification of the commonality

requirement, therefore, plaintiffs seeking class certification

must, among other things, (1) avoid framing common questions so

generally that they encompass myriad, distinct claims; (2)

provide significant proof that “there exists a common policy or

practice . . . that is the alleged source of the harm to [the]

class members,” M.D. v . Perry, 2013 WL 4537955, at *14 (S.D. Tex.

August 2 7 , 2013); (3) identify common questions of fact or law

that can be “answered either ‘yes’ or ‘no’ for the entire class,”

that i s , identify central questions whose answers “‘will not vary

by individual class members,’” Raposo v . Garelick Farms, LLC,

2013 WL 3733461, at *3 (D. Mass. July 1 1 , 2013) (quoting Donovan

v . Philip Morris, USA, Inc., 2012 WL 957633, at *21 (D. Mass.

Mar. 2 1 , 2012)); and (4) show that “dissimilarities in the

proposed class” do not “impede the generation of common answers.”

Wal-Mart, 131 S . C t . at 2551. Plaintiffs here have done all of

that.

28 Substantial evidence suggests that the State’s policies and

practices have created a systemic deficiency in the availability

of community-based mental health services, and that that

deficiency is the source of the harm alleged by all class

members. The State’s own reports, for example, demonstrate that

there is a dearth of available community-based services within

New Hampshire’s mental health system. They further show that

this systemic condition “is a result of the way the State manages

the system and is something that the State . . . can control.”

M.D., 2013 WL 4537955, at *38 (finding that the States’ policies

and practices brought about the challenged systemic conditions).

In addition, the evidence suggests a causal connection between

that systemic condition and the harm experienced by all class

members: a serious risk of unnecessary institutionalization,

which includes a serious risk of continued unnecessary

institutionalization. As noted above, the State’s own reports

show a “front door” and a “back door” problem, both of which the

reports attribute to the systemic deficiency. Likewise,

plaintiffs’ experts corroborate the reports’ findings, concluding

that there is a high rate of unnecessary placement into

institutions and unnecessary continued institutionalization, both

resulting from the short supply of community-based services.4

4 Evidence of a serious risk here seems substantial in light of cases applying that standard. See e.g., Hunter ex rel. Lynah v . Cook, 2013 WL 2252917, at *6 (N.D. G a . May 2 2 , 2013); Pashby v .

29 The plaintiffs have also shown that common questions

susceptible to common answers are present. For instance, 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, are questions central to

plaintiffs’ theory of the case. These questions will,

necessarily, be answered similarly for every class member. And,

whether the systemic conditions, if shown to exist, expose all

class members to a serious risk of unnecessary

institutionalization, including continued unnecessary

institutionalization, is a central and common contention whose

resolution will defeat or advance the claims of all class

members, whether institutionalized or not. In short, these

common questions can be “answered either ‘yes’ or ‘no’ for the

entire class,” and the answers “will not vary by individual class

members.” Donovan, 2012 WL 2012 WL 957633, at * 2 1 .

Cansler, 279 F.R.D. 347 (E.D.N.C. 2011) aff’d Pashby v . Delia, 709 F.3d 3 0 7 , 322 (4th Cir. 2012). Moreover, the cases seem to indicate, at least by implication, that no individualized inquires need be made to determine whether a systemic condition places class members at serious risk of unnecessary institutionalization; instead, the inquiry can properly turn on systemwide proof. Notably, as evidenced by its 2011 “Investigation of the New Hampshire Mental Health System,” its brief in this case, and its comments at oral argument, the United States seems to agree with this interpretation of its regulation. Of course, whether plaintiffs can prove their claim is a question for trial.

30 The State argues that plaintiffs have, at most, shown the

impact of myriad, distinct State funding and provision practices

that relate to several types of community-based services. The

State posits, in other words, that its alleged practice of

failing to provide an adequate array of community services is

really a collection of separate, discrete practices relating to

“numerous different types of community-based treatments,” broadly

articulated by plaintiffs as a single “systemic failure[].” Def.

Br., doc. n o . 7 7 , at 46-47. Therefore, it says, the class

members have nothing in common except for the fact that they each

alleged a violation of the integration mandate — something

Wal-Mart does not allow. See 131 S . C t . at 2551.

The State points to the recent decision in D.L. v . Dist. of

Columbia, 713 F.3d 120 (D.C. Cir. 2013), in which the appellate

court found that plaintiffs had not met Wal-Mart’s commonality

test. Id. at 127-28. But DL was decidedly different, and is

distinguishable from this case. In D L , plaintiffs alleged

numerous violations of the Individuals with Disabilities

Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. D L , 713 F.3d at

122. Specifically, they challenged the defendants’ practices

with respect to four distinct steps in the IDEA’s “Child Find”

process. Id. The appellate court held that plaintiffs had not

shown the existence of a common question because, contrary to

31 Wal-Mart’s teaching, they articulated a common question at the

highest level of generality – that i s , whether “the District has

violated the IDEA as to each class member” – in order to sweep

within the question’s scope the defendants’ “multiple, disparate

failures.” Id. at 128 (quotation omitted).

Unlike the disparate practices and deficiencies challenged

in D L , the State practices plaintiffs challenge here all pertain

to a discrete set of community-based services — services the

State itself has persuasively identified as critical to solving

the crisis in New Hampshire’s mental health system. Although it

may be a matter of degree, and perhaps discretion, as to where

the line should be drawn, the court is persuaded that common

questions — such a s , whether there is a systemic deficiency in a

core set of community-based mental health services and whether

this deficiency has placed class members at serious risk of

unnecessary institutionalization or continued unnecessary

institutionalization — are at a low enough level of generality

(or high enough level of specificity) to pass muster under Wal-

Mart. In other words, the common questions here are not

amorphous or “superficial.” Jamie S . v . Milwaukee Public Sch.,

668 F.3d 4 8 1 , 497 (7th Cir. 2012).

32 Moreover, and not unimportantly, in disability cases both

pre- and post-Wal-Mart, the commonality requirement has been held

to be met where, as here, plaintiffs challenge more than a single

service deficiency and seek more than one service enhancement or

improvement as part of the remedy. See e.g., Gray v . Golden Gate

Nat’l Recreation Area, 279 F.R.D. 5 0 1 , 511-19 (N.D. Cal. 2011)

(holding, post-Wal-Mart, that commonality was satisfied where

defendant’s general policies and practices failed to address

“access barriers,” despite the fact that different types of

access barriers were at issue, the types and levels of class

members’ disabilities differed, and different types of

accommodation would be required); Lane v . Kitzhaber, 283 F.R.D.

587 (D. O r . 2012) (post-Wal-Mart); Rolland v . Cellucci, 1999 WL

34815562 (D. Mass. Feb, 2 , 1999) (pre-Wal-Mart).

The State also argues that dissimilarities in class member

needs and preferences for community-based services, and

dissimilarities in their current preferences and future needs as

between institutional care and community-based services, make

class certification improper. “There is no commonality,” it

says, “when each class member needs or wants a different mix of

community supports,” or when some class members prefer acute

psychiatric or nursing care over care in the community and,

therefore, “want to remain in their current [institutional]

33 setting.” Def. Br., doc. n o . 7 7 , at 5 ; Def. Surreply, doc. n o . 88 at 1.5

1. Needs and Preferences for Different Community- Based Services

The State posits that the limited funding “pie” will

necessarily pit class members needing and wanting a particular

community service, or mix of services, against other members

needing and wanting some other community service or mix of

services. The intra-class conflict that the State posits is

premised on its assertion that “the class as a whole cannot seek

maximum dollars for each [community] service, without turning

their rebalancing of the system into a fundamental alteration.”

Def. Surreply, doc. n o . 8 8 , at 6, n.1. In seeking to defeat

class certification, the State, it seems, is venturing into

issues that are properly addressed at trial, in the context of

its fundamental alteration defense, but which are not

particularly relevant to the class certification inquiry. See

Amgen, 133 S . C t . at 1203-04 (rejecting defendant’s attempt to

5 The State also argues that another relevant dissimilarity is that between class members who are already receiving community services and those who are not. That difference, however, does not destroy commonality because, under plaintiffs’ modified class definition, those class members who are receiving community services (meaning, they are not “unnecessarily institutionalized”) are, nevertheless, “at serious risk” of needless institutionalization – a status that implies inadequacy or insecurity of community service options.

34 litigate a defense as part of class certification). See also

Glazer, 2013 WL 3746205, at *8 (“[D]istrict courts may not ‘turn

the class certification proceedings into a dress rehearsal for

the trial on the merits.’”) (quoting Messner v . Northshore Univ.

HealthSys., 669 F.3d 8 0 2 , 811 (7th Cir. 2012)). In any event, if

the State turns out to be right in predicting an intra-class

conflict, the creation of “independently represented sub-classes”

stands as an available managerial device to resolve such

potential issues. Ortiz v . Fibreboard, Corp., 527 U.S. 815, 864

(1999). See also Manning v . Boston Med. Ctr. Corp., __ F.3d __,

2013 WL 3942925, at *21 (1st Cir. Aug. 1 , 2013).

2. Future Need for Institutional Care

The State also contends that differences in future needs

among the class members destroy commonality. It has submitted

evidence suggesting that an increase in funding for community

services will result in a critical reduction in already

inadequate acute care services. This is problematic, it says,

because many class members may need acute care in the future,

but, if plaintiffs secure the relief they seek, institutional

treatment may not be available. According to Erik Reira,

Administrator of the New Hampshire Bureau of Behavioral Health,

if community-based services are expanded to the extent sought by

plaintiffs, “[t]he State would have to radically alter its mental

35 health care budget to the detriment of individuals who need acute

in-patient care or long-term care.” Reira Aff., doc. n o . 77-2,

at ¶ 2 4 . He further states that, “[t]o make the expenditures

sought by Plaintiffs without raising the overall mental health

care budget will require drastic cuts to important programs the

Department runs.” Id. at ¶ 2 9 . He concludes that “[c]uts of

magnitude demanded by the expenditures Plaintiffs seek could only

be accomplished by a drastic reduction in funding for NHH and

Glencliff Home.” Id. Reira’s factual assertions are more

properly addressed in the context of the State’s fundamental

alteration defense.

3. Preference for Institutional Care

The State's point about differences in treatment preferences

between community services and institutional care likely

overstates the willingness of individuals with serious mental

illness to accept needless institutionalization over services in

the community. But even s o , the existence of preference

differences among class members does not change the fact that the

State's practices with regard to community services have been

shown, by substantial proof, to affect all class members. See

Glazer, 2013 WL 3146205, at *9 (on remand after Wal-Mart,

affirming district court's finding of commonality in products

liability case, explaining that, where the question of the

36 product's defectiveness was common to all class members, “[t]he

existence [in the class] of currently satisfied [product] owners

did not preclude the district court from certifying the . . .

class.”). And, because preferences can change, class members who

today might prefer institutionalization, can reasonably be

thought to also have an interest in the availability of

community-based treatment options should their preferences change

tomorrow.

The State seems, therefore, to “exaggerate[] the impact on

the feasibility and desirability of class action treatment of the

fact” that some class members may prefer institutionalization.

McReynolds v . Merrill Lynch, Pierce, Fenner & Smith, 672 F.3d

482, 490 (7th Cir. 2012) (Posner, J.) (finding commonality after

Wal-Mart, where plaintiff minority stockbrokers submitted

sufficient proof of a company-wide policy affecting all class

members, even though “the exercise of discretion at the local

level is undoubtedly a factor in the differential success of

brokers, even if not a factor that overwhelms the effect of the

corporate policies”). Indeed, the relatively recent decision in

Voss, 592 F.3d at 253, provides some assurance of feasibility

because it supports the notion, albeit by implication, that the

claims of people with different treatment preferences “can

productively be litigated at once.” Wal-Mart, 131 S . C t . at

37 2551. See Voss, 592 F.3d at 253 (approving class settlement

providing for an increase in community services for

developmentally disabled persons, and leaving for the State’s

individual service planning process, placement decisions that

would take individual preferences into account). 6

For all of these reasons, the court finds that plaintiffs

have met the commonality requirement of Rule 23(a)(2).

C. Typicality and Adequacy of Representation

Rule 23(a)(3) provides that “the claims or defenses of the

representative parties [must be] typical of the claims or

defenses of the class.” Fed. R. Civ. P. 23(a)(3). Rule 23(a)(4)

requires that “the representative parties . . . fairly and

adequately protect the interests of the class.” Fed. R. Civ. P.

23(a)(4). The typicality and adequacy requirements overlap.

Shanley, 277 F.R.D. at 6 9 . The State argues that the named

6 Such a process may best ensure vindication of rights under the ADA and RA, since the meaningful exercise of a preference will be possible only if an adequate array of community services are available to those who do not need institutionalization. As plaintiffs point out, preferences may be “conditioned by availability, . . . limited by information, and are likely to evolve in a system that complies with the ADA.” P l . Reply Br., doc. n o . 8 2 , at 4 9 . See also Simpatico Supp. Aff. doc. n o . 82-1, ¶ 1 0 . C f . Green v . Cty. Sch. Bd. of New Kent Cty., 391 U.S. 4 3 0 , 441 n.5 (1968) (recognizing — but not deciding for the case before it — that vestiges of segregation may influence minority students and parents to choose segregated schools under so-called “freedom of choice” desegregation plan).

38 plaintiffs are not adequate representatives of the class and that

their claims are not typical of class member claims because (1)

they seek to shift funds away from institutional care, yet some

class members currently prefer institutional care, or may need

care at a particular institution in the future; (2) some class

members need or prefer different, or a different mix o f ,

community-based services than the named plaintiffs; and (3) the

State’s review of the named plaintiffs’ medical files purportedly

reveals that some either need or prefer institutionalization, or

may need institutionalization in the future. The arguments are

unpersuasive.

The court has determined that all class members, as defined

and without regard to current preferences, have an abiding

interest in securing the availability of community-based services

options sufficient to preclude unnecessary institutionalization.

Moreover, as noted, the State’s arguments that funding for

institutional care will be unavailable if the named plaintiffs

get what they want, and that the funding “pie” is not large

enough to maximize the funding of all four community-based

services, are issues properly addressed at trial in the context

of the State’s fundamental alteration defense.

39 In addition, it has been adequately shown that, due to a

shortage of the types of community-based services sought, each of

the named plaintiffs either continues to experience unnecessary

institutionalization, has experienced unnecessary

institutionalization in the past, o r , although currently not

institutionalized, is otherwise at serious risk of being

unnecessarily institutionalized. Plaintiffs’ evidence also

suggests that these same circumstances are shared by the defined

class members. Although the State submitted contradictory

evidence from its own experts with regard to the needs and

preferences of the named plaintiffs, plaintiffs countered with

supplemental affidavits from their mental health experts, and

from the named plaintiffs themselves or their guardians. Having

reviewed this evidence, the court finds that plaintiffs have

shown that the named plaintiffs’ experiences and claims are

typical of those of the members of the class, and that the named

plaintiffs are adequate representatives of the class.

The State does not challenge the experience or

qualifications of the putative class attorneys, nor, reasonably,

could i t . The court finds, therefore, that plaintiffs’ attorneys

will adequately represent the class.

40 V. Rule 23(b)(2)

Plaintiffs seek to maintain this suit as an injunctive class

action under Rule 23(b)(2). As noted, plaintiffs have submitted

evidence to support their allegation that a systemic deficiency

in the State's community-based mental health services system

affects the class. As the court of appeals for the Fifth Circuit

noted in M.D. v . Perry, 675 F.3d 8 3 2 , 841 (5th Cir. 2012), the

requirements of Rule 23(b)(2) are met where plaintiffs show that

the “State engages in a pattern or practice of agency action or

inaction – including a failure to correct a structural deficiency

within the agency . . . with respect to the class.” Plaintiffs

have, therefore, met their burden to show that the State 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).

Nevertheless, the State argues that certification of a

(b)(2) class is improper because the class member claims are not

“cohesive.” There is some debate, even after Wal-Mart, whether

Rule 23(b)(2) contains an implicit cohesiveness requirement (see

Newberg, Sec. 4:33), and the court of appeals for this circuit

has never endorsed one. See Donovan v . Philip Morris USA, Inc.,

268 F.R.D. 1 , 11-12 (D. Mass. 2010) (finding that there is no

41 authority in the First Circuit for grafting a cohesiveness

requirement onto Rule 23(b)(2)). The court need not address that

legal issue, however, because in any event, the class here is

sufficiently cohesive.

A class is “cohesive” where common questions predominate and

there are “few conflicting interests among its members.” Allison

v . Citgo Petroleum Corp., 151 F.3d 4 0 2 , 413 (5th Cir. 1998). The

State argues, primarily, that the proposed class is not cohesive

given the same dissimilarities between and among class members

that it believes undermine commonality, typicality, and adequacy

of representation. It argues, in sum, that the class members

here do not “have a ‘strong commonality of interests,’” such that

all of them will benefit from a single injunction. Def. Br.,

doc. n o . 7 8 , at 13 (quoting Gates v . Rohm & Hass Co., 655 F.3d

255, 264 (3d Cir. 2011) (applying cohesiveness requirement)).

See also Def. Surreply, doc. n o . 8 8 , at 2 . The court has

addressed and rejected the State's arguments regarding class

member dissimilarities, finding that all class members share a

strong common interest in enhanced options for community

treatment. Injunctive relief prohibiting a discriminatory lack

of community service options would, therefore, benefit all class

members. See D.G. ex rel. Stricklin v . Devaughn, 594 F.3d 1188,

1200 (10th Cir. 2010) (holding that class was cohesive, noting

42 that, “because the Named Plaintiffs assert that excessive

caseloads are harming or putting at risk of harm all children in

the class, the imposition of caseload limits would apply to the

entire class.”) (emphasis deleted).

For these reasons, the court finds that plaintiffs have met

the requirements of Rule 23(b)(2).

Conclusion

Reasonable minds may of course differ as to whether the

traditional approach taken in ADA integration cases (or related

disability cases) of certifying broad classes of persons with

different specific disabilities, needs, and preferences (an

approach taken both before and after Wal-Mart), is in tension

with Wal-Mart's recent procedural commands. But plaintiffs here

have defined the class more narrowly than is usually done in ADA

integration cases; their class claims are limited to parallel

claims under the ADA and RA; they challenge alleged deficiencies

related to a discrete set or class of services; and they seek a

single declaration or injunction aimed at correcting a systemic

discriminatory imbalance (not mini-injunctions for each class

member), thus leaving individual treatment determinations for the

State's existing individually-targeted administrative process.

43 All of this, the court concludes, has enabled plaintiffs to meet

Wal-Mart's commands.

Accordingly, plaintiffs' motion for class certification,

doc. n o . 7 3 , is granted in part and denied in part. The

requirements of Federal Rule of Civil Procedure 23(a) and (b)(2)

are met with regard to the ADA and Rehabilitation Act claims, but

not with regard to the PASSAR claim.

The class certified i s :

All persons with serious mental illness who are unnecessarily institutionalized in New Hampshire Hospital or Glencliff or who are at serious risk of unnecessary institutionalization in these facilities.

At risk of institutionalization means persons who, within a two year period: (1) had multiple hospitalizations; (2) used crisis or emergency room services for psychiatric reasons; (3) had criminal justice involvement as a result of their mental illness; or (4) were unable to access needed community services.

Upon certification, the court must appoint class counsel.

See Fed. R. Civ. P. 23(g). Plaintiffs here seek the appointment

of four firms or legal services organizations as class

co-counsel: DRC, Devine, Millimet & Branch, the Bazelton Center,

and CPR. These firms and organizations, and their designated

attorneys, meet the requirements of Rule 23(g)(1)(A). Pursuant

to this court's authority under Rule 23(g)(1)(C)-(E), class

counsel shall submit ex parte, or under seal, a proposed budget

44 related to anticipated fees in this case within sixty (60) days

from the date of this order. Given the number of attorneys

seeking active participation in this litigation, it seems prudent

to ensure some control and oversight over the generation of fee

claims at the outset, in the interest of both plaintiffs' counsel

and defendants, who may at some point be asked to pay those fees.

Undoubtedly, class certification carries risk, but such

decisions are conditional, and the court retains the authority to

modify the class description, or even decertify the class, if

subsequent developments suggest that either is appropriate.

Should decertification become advisable or necessary, the

involvement of the United States – which seeks system-wide

remedies – substantially reduces the risk that litigation efforts

and resources will have been wasted.

Finally, given that the class is certified under Rule

23(b)(2), and notice is discretionary, the court declines to

require that notice be given to all members of the class, since

the relief sought is systemic in nature and can only benefit

members of the class. See Fed. R. Civ. P. 23(c)(2)(A).

45 SO ORDERED.

___ ven ___McAuliffe nited States District Judge

September 1 7 , 2013

cc: Ira A . Burnim, Esq. Anne M . Edwards, Esq. Richard J. Farano, Esq. Deena S . Fox, Esq. Aaron J. Ginsberg, Esq. Catharine A . Mallinson, Esq. Jennifer Mathis, Esq. David W . McGrath, Esq. Amy B . Messer, Esq. Elaine M . Michaud, Esq. Kathryn L . Rucker, Esq. Steven J. Schwartz, Esq. James Q . Shirley, Esq. Brian D. Thomas, Esq. John M . Turner, Esq. Daniel E . Will, Esq. Rebecca L . Woodard, Esq. Joshua M . Wyatt, Esq.