Legal Case Summary

And we'll call the next case. Franklin Benjamin versus Department of Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Good morning, Your Honors. May I please the Court? My name is Carl Salano. I am a guardian for one of the residents whose facilities are an issue in this case. And she is the appellant in number 113685. But I am here to argue on behalf of the appellants in both appeals. Judge Fuente's May I reserve four minutes for rebuttal. Yes sir. Thank you, Your Honor. Your Honor, the residents of these institutions, the state centers, are some of the most vulnerable members of our society. They are in 75% of the cases profoundly disabled. That means that they have the mental abilities of infants and toddlers. And I think it is very important that we keep that in mind as we consider the issues here. More than 80% of them don't have guardians. A substantial number do not have involved family members. The number is disputed. But I believe plaintiffs counsel has put it somewhere around 20%. And so we are here in a situation where an action was brought by the Americans with disabilities act by five individuals who wish under the ADA to be moved out of the state centers to another facility. No one disagrees with that. May I ask you what it is that you are asking this court to do? We are asked. I'm sorry. Is it is it the set aside a settlement and to decertify classes at the thrust of your. Yes, Your Honor. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry

. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry

. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. the remedy which the remedy which the merits and the remedy which the district court did not have it before because you had it before but without your presence

. Your honor the district court had before us before it at the time of the settlement approval here. The objections that were filed by us and a hundred some odd other objectives in which we raised these issues. So these issues were before the district court. The district court heard them if he cited that it sort of entertained them sort of did not because maybe were members of the class and maybe were not members of the class. We submit Judge Cowan we are members of the class were properly here and the court has the power now to order that it was improper to certify this class and that it was improper to approve this settlement. Certainly if the court doesn't do that we welcome a remand to make us parties but we don't think it's necessary I'm sorry Judge why why is it Mr. Meek correct that this issue is a very issue about whether you should be a member of the classroom not was already decided by our court and why is that not along the case. Your honor the prior decision by this court was a decision on intervention. It was not a decision on it was a decision on intervention. It was not a decision on the propriety of class certification. Mr. Solano you're back here on a second attempt to intervene. Are you not? I'm sorry you're on your back here on a second attempt to intervene. I know you weren't you the party you're representing both as guardian and counsel was not part of that first appeal but yet your interests are similar in your honor we're back here on a second attempt to be heard okay but we are back here on a second attempt to be heard in an entirely different context okay let me just stop you right there at that point. It seems to me that you and you chose to use the word be heard as opposed to intervene. It seems to me not only are you being heard today but the district court heard you and took into consideration many of the objections that you pose. Judge Fisher the district court allowed us to argue at the settlement approval hearing the district court then issued an opinion in which it said that the objections that it raised were by non-class members and therefore did not need to be entertained and so I have to be candid Judge Fisher I'm not sure to what extent the district court heard it court heard us and didn't because the court's opinion was ambiguous on that point we were there and yet it's he said that he didn't need to hear us. We believe your honor we can cut through all of this just by the fact that you're right we're here being heard today we're here being heard today because we have standing to be heard today because we are class members we are class members if I may be trying to judge Flentys question because this case has changed dramatically since this court's last decision that decision was entered before there was a settlement agreement that decision was entered at a time when this court said in its opinion that this case was going to bind and this is this court's words only those who affirmatively expressed their desire to be discharged since that time the parties entered into a settlement agreement it binds everybody. You represent five plaintiffs. Is that right? It's I believe eight your honor but okay. But how many would you count in your class? The plaintiffs class consists of I believe your honor all states and residents which are approximately 1100 to 1200 people. Is there an interest that you are you are promoting for your your clients that was not adequately represented in the class? Yes. Well our our interest was not adequately represented because the only interest that were adequately represented were those of those members who wished to be removed from the state centers. There were a hundred and some objections stating not only do we not want to be removed from the state centers but there are aspects of this settlement. Wasn't there a provision in the protocol that would allow you to opt out of that movement to community centers by expressing your desire not not to be moved? Your honor it is a provision that is subject to a number of contingencies. It says that we are not currently member we if we do not currently desire to be removed we don't have to be but we may be in the future if we do desire to be removed and then it sets up a protocol that says. What do you really have to best to both worlds here? Your honor you know when I was told when I read the plaintiffs position that said you know you're not a part of this class and this doesn't affect you at all and therefore you get away Scott free and don't worry about it

. I can't tell you how tempting it was to accept that and walk away but it's not true. This settlement binds everybody it suggests us to annual reviews under which we are required to state opposition and if we don't up here at those reviews that does all of a sudden my sister is deemed to have agreed to be removal because I wasn't there to speak for her and she's incapable of doing it. All right but your sisters represent and then you indicated you're your sister's guardian. I am. Your sister at least has a guardian and are going to assume that your sister is going to be spoken for. Your honor today my sister is going to be spoken for. One of the provisions of this agreement is if I die and I don't appoint a proper substitute suddenly she's not spoken for. So my substitute right now is my wife if we go on vacation the plane goes down she's not spoken for. Hasn't the legislature established the DPW will be the entity that will speak for those who don't have a guardian. Your honor isn't that the role and I mean I mean you we have to assume that the department that has been directed to manage this class is in fact going to speak properly for those individuals who don't have a guardian. Your honor the DPW and appropriate circumstances may speak for the residents under its care but here your honor there is a conflict. DPW the question is what do these residents want and need. Do some of these residents have ISPs prepared by professionals hired by these residents are you talking about all 1200? I am. These residents some of them my sister included have ISPs prepared by DPW professional staff that say it is inappropriate to move them out of the state centers to the community and yet DPW's administrative personnel have stipulated that everybody can be moved anyway. DP some of these residents may not want to move. DPW has declared that all residents are going to be deemed to move if they lack the sufficient capacity to answer the question. In order to be moved you have you general layer placed on what's called a planning list. DPW that's correct your honor. DPW I am looking at a protocol and you correct me if I'm mistaken but it says it if a number of parties are listed in the series of parties I see about 10 different categories but the the last one says if one of these parties subsequently checks to the community placement the resident will be removed from the state planning list. DPW that's right your honor I think if you go down to something like the seventh bullet there there are the parties who are incapable of objecting because they do not have the intellectual capacity to understand the question and do not that person would not be removed that person would be removed. I know that you're assuming that DPW would be of a person that shouldn't be. Your honor that's what the protocol says the protocol says that if you are incapable of answering this question you had discussion you'll be put on the list if you're incapable. Once you put on the list it doesn't be removed. DPW it doesn't mean you're going to be removed. DPW once you're assuming that they're going to close down the state center. DPW no your honor I'm assuming that the purpose of the list as stated in the settlement agreement is to list those people who will be removed that's the purpose of the list. DPW right and that's the kernel of your argument that but although at the merit section you may not have been a member of the class at this point by reason of the settlement you are at least should be a herde as concerning what the class should constitute and what any settlement should be because people that can't speak for themselves will by default automatically be deemed to consent to being removed

. Kurecht's colon that's correct. DPW and that position could not be voiced prior to the settlement which was reached in the district court. DPW exactly. Kurecht are you talking about the more seriously impaired individuals? DPW I am your honor which includes both those who have so impaired they can't understand and have no guardians. Kurecht how big is that group? DPW we Mr. Meek plaintiffs council estimated at the settlement approval hearing that we're talking about 125 people currently and then we have to talk about those schools guardians or family members die pass away become unavailable because remember your honor many of these individuals were placed there by their parents some years ago who are now elderly and dying. Kurecht what would happen if you were to prevail and we were to agree that the settlement has to be vacated you go back into the class. Is that put a halt to all of this planning that has taken place? I mean does that mean you got to start back to square one? DPW if your honor if I'm understanding your honor's question you mean if you vacate the class order and you vacate the settlement. Kurecht you've got to vacate the settlement. DPW your honor what it means is that those individuals who file the suit and have asked to be discharged will be discharged any other individuals who ask to be discharged will be discharged any guardians or family members who ask to do so will be but one of the important things about all of a sudden it's an individual. DPW is not preventing those who want to go to community centers from going to the community. Kurecht your honor we would not stand in the way of that at all. So actually your position is I don't want to be simple but it's not complex. All you would be content with at this point although you would want more is if we remanded this back to the district court and say that it was an abusive discretion not to include you as an intervener a proper intervener since the settled in agreement affects the people who you represent and you had a right to be heard concerning the settlement because number one people you represent are automatically get my default going to make a choice which is impossible for them to make and secondly there's a divergence there's only so much money in the pot and the government can only spend so much for institutional care and so much for community care and you have a right to be heard as to to some extent as to that division. Is that the points that you're making? Your honor I agree with every bit of that but with one addition we are right we have a right to be heard on remand one of the issues on remand is going to be class certification. Well you could argue that if we revanted it back we were abandoned as to whether or not the class certification was apropos concerning what was before the court. I understand that your honor and that's correct all I was going to say was that we believe the record is already clear it's not going to change and so we would ask your honor to prime by it otherwise we'll be back here again. Mr. Solano couldn't we eliminate those steps and assume that you should have been properly included and evaluate whether or not the class was properly certified was settlement was fair and whether it meets all the other provisions rule 23 couldn't we do that based on the record in front of us. I believe you can you're on okay. Would we be in God when Daging here as an appellate court in fact finding which is not our province or our specialty on this record is your your friend across the aisle going to say that this is something which is quintessential work for the district court. Your honor let's take the two issues separately on class certification. I do not believe that you need to make any do to engage in any fact finding because the essential issues on class certification are cohesiveness issues having to do with whether the class definition or to a more of this most of those are questions of law. I don't think you need to do a lot of fact finding there and on the propriety of the settlement the fairness of the settlement we suggest your honor that the settlement provisions that have been agreed to particularly with respect to those individuals who have no guardians and don't know what don't understand what we're talking about is on its face presentively unfair and particularly in light of a judge judge Jones comments. Well, what should our decision be as to what the settlement the class should be and the settlement should be following from a proper description of the class including your people you represent. What would are the term what would you write if you were writing the opinion as to what the settlement should be. Your honor I think the first thing you need to do is to address whether this type of class could be certified and I think the answer is it could not if the class is

. And I think you do away with the class action at that point. That's correct. It doesn't mean class certification. That's correct your honor. Structure so if we didn't that's a that's one option if we if we did not want to go that way then and we say that there is a class here you should be included what do we say as is the proper settlement that this court should it. Your honor the propriety of the class is tied to the remedy requested. So for example in Navy proper to form a class which requests at the state institute proper procedures and all the step plan procedures that will take into effect the desires of all of all residents whether institutional care or community care and have procedures in place to place them. I think your honor that if that is the set the class that is defined so it's not based on the relief requested discharge but instead it's released on it's based on the procedure. I think then your honor the settlement agreement would be put in place proper procedures. Your primary goal to get back into the class at least to have a seat at the table so that you can have input with respect to the protocols. My primary goal is to recognize that homestead requires individualized assessments and therefore they should not be a class action. Would you argue that in the district court if we remained it back to this court saying you were proper intervener they should hear from you and determine whether or not the class is properly constituted under the rule. Judge Collin we certainly could and would argue that to the district court if that is necessary. You say that we could do it here there's no additional facts we can do it right here now. That's our position Your Honor. Okay we got you have time on Rebellion so we'll get you back on your panel. Thank you thank you we have to hear from you. Good morning honor. May please the court my name's Robert Meek. I represent the plaintiffs of Pellies. I'm going to take eight minutes of our 15 minutes and Daris Lyshues counsel for the defendant of Pellies will use the remaining 15 minutes. That is satisfactory. Yes Your Honor let me get right to the point that Mr. Salana was striving and that is whether in fact his clients are class members. The district court found unequivocally they were not class members and in fact in this court before even after the settlement. Your Honor the settlement was actually the same as the proposed settlement. They found that they were improper class members even after the settlement

. Yes because you didn't let them intervene and he found that they were not class members both of those things the district court found yes. Well well but by reason of the settlement that that that group of people are unquestedly going to be affected by the settlement. Your Honor I respectfully disagree that they're unequivocally going to be affected. First and foremost the annual reviews that Mr. Salano was so lathered up about happened all the time every year anyway. Second of all we're talking about some time in the future speculatively that his client might not have a guardian but that is easily remedied as Judge Staples said in the previous opinion that you merely have to create substitute guardians. Well and previous opinion dealt with the barracks of the case not not with the remedy that that's the constituted. The remedy that's been put in place here makes a default choice by a person who is incapable of making that choice many of whom are not represented as as the appellant as the appellant in this case is right. Right. Your Honor that was before the court before as well but in any and in fact the Mr. Salano argued that the concern they had would they would become words of the state because of the very they would become part of the default group and the court didn't pay any attention to that argument at that time and you have to shift this court. Wait you're saying people affected by a settlement in a class action matter have no say in whether or not they're affected or not. Mr. Salano was heard and his comments and argument in cross-examination of witness was certainly heard by the district court. Well then let me ask this he wasn't allowed to intervene as an intervener. Correct. It was heard but not as an intervener. Correct. What prejudice would occur to the plaintiffs of Halees if he had been heard as an intervener what prejudice would you have suffered? Prejudiced that he, Mr. Salano, as I told you he was going to do is going to de-certify the clients if you can. Well, if prejudice is that's a position he's taking. Well, if prejudice is my clients that he's going to come in if he gets in he de-certifies the clients and he's not a proper intervener because he has no interest at stake. Wait, that's not legal prejudice. That's what the resolution of the litigation is being on the court. Let me tell you what the real prejudice is, Judge. What prejudice would you suffer? Legal prejudice. Not that the court with his presence made the side it differently

. But what prejudice would you have if he were heard in the district court? To what and is he being heard? To argue that it's not appropriate for some people to go into the community. That's already been decided by the district court and was the facts are there. Undisputed facts that everyone can be served in the community. As to the persons who are not represented by guardians I think Judge Swentay's or Judge Fisher mentioned that under the statutes the control of these matters 50 per burdens 44 17 through 20 and a regulation 55 PA code 6,000.1018 makes the facility director a guardian of those individuals. That facility director has the same power and authority as Mr. Solano has with regard to his sister. So they are not unprotected. They are interested are represented by a guardian. They're all represented by guardians. If they don't have a guardian the state is representing them. But then automatically there's a default as to what their choice is and these are people who are unable cognitively to make a choice. You're right. First of all the choice is not affirmative as the onestead says whether there's opposition or not opposition. First of all the justice departments put to that. They're unable to make opposition. Correct. So but the stays entitled to have a policy and the facts support that policy. That people who can't make a decision are guarding their guardian is the state the facility director under the statutory plan and that guardian can make the decision for them. And the problem is that Mr. Solano just doesn't like the policy. The policy is there. The stays in place have that policy and this record correctly interpreted by the district court in this court in the last appeal found that it's always appropriate to for any person with intellectual disability to study the community with appropriate supports and services. And that's the linchpin to it all. A purpose of course the services. Mr. Make seems to me that there's not really that much of a disagreement between the parties

. There is but there isn't. Mr. Solano had a chance to speak here today. He had a chance to speak before the district court across examined witnesses. There's a dispute internally as to how some of the processes work. But isn't a real question here for us as an appellate court? Is to whether or not Mr. Solano and the people who he's representing have standing to come before us to argue the issues that have been decided by Judge Jones? Isn't that really the question? Sure that was well that would have been my first point having been able to make it Your Honor. Is that they don't have students because they're neither class members nor are they proper interveners. They're not class members because they currently oppose placement. And the procedures of the protocol don't really make doesn't really have an impact in creating them as class members. And we say that everything else we're talking about is irrelevant to the decision we have to make? Right well not necessarily irrelevant because if you in fact determine that they are proper parties before this court then we would have to proceed to the other issues regarding class certification and intervention whether they are proper whether the court ruled correctly to determine that they were not class members nor in the years. Do you have to favor transfer in order to be a class member? Do not have to favor you just not oppose that the language of Olmsted and the Justice Department supports that and is the body that is the entity which is given the authority to interpret the ADA title too which in which this case was brought. So if after this hearing Mr. Solano's client the people who represent the back and say we no longer oppose this plan. Do they become members of the class? Correct. That's all they need to do. That's correct but they don't want to do that you're on. What they want to do is get rid of the class and contrary to Mr. Solano's argument if the class is de-certified not only were my class members 200 and odd some of them which are the persons who are not opposed in the default group but also my name plaintiffs can't even prosecute it claim because Olmsted teaches that you can't bring individual cases in an Olmsted action because that would allow what's called key jumping and that they're the whole point of Olmsted was to require the states to have a comprehensive plan to deal with everybody and could jump and undermine that. Mr. McLean may ask you this and maybe you more clearly focus what you want to do for me. Isn't really the certification of this class and the settlement shifting the decision from the Department of Public Welfare to the federal courts. Isn't that really what's happening here? I don't think so, Yarn because the Department of Public Welfare is making all the decisions that need to be made. In fact that's why it's appropriate that the court founds it did and left a remedy to the experts that is the Department of Public Welfare. The Department of Public Welfare is making all the decisions. We're not asking the decision on appropriateness. We're not asking the court to make decision on opposition

. I'm sorry, Yarn. I agree with you. I'm sorry. Recognize I was speaking over you but I was trying to get you to stop. But the DPW has a role because the court gave them a role. But and DPW has a role because they agreed in court to that role. But without this class certification it would go back to DPW would make a determination and as long as they're in compliance with all of the steps it would be their determinations that would be which would stand as to where the various patients reside and when and if there would be moves to the community. And that is exactly what we're asking this court simply affirm is that they can make those decisions under the statutory scheme that they can speak for people who cannot speak for themselves because they are the guardian. Okay, but that's the point. Because the default assumes individuals who cannot voice a preference are not opposed to moving. That's what the settlement says. How do you avoid the possibility that those who cannot voice a preference actually prefer to stay in ICF? Your Honor, I'll answer that with another question. How do you suppose that your Honor on the other side how can you presume that a person who can't speak for themselves then so does it want to leave? You don't want us to have the answer. No, I'm just just rhetorically. Why is there a presumption? Because that is the... I'm sorry. I asked you a question. I think it's rather simple. He's the answer. How do you want me to repeat it for him? Please, Your Honor. Because the default assumes individuals who cannot voice a preference are not opposed to moving. How do you avoid the possibility that those who cannot voice a preference such as the balance actually prefer to stay in ICF? Your Honor, you can't. You also can't cut it the other way either. You can't tell that they don't want to leave. So the problem is that's the guardian. Certainly. So by default they're making a choice which they've never made. Your Honor, they are represented by a guardian, the facility director who is making the choice for them. Justice Mr. Solano was making the choice for his sister. You have a procedure in place where it can be determined on an individual basis whether that resident should go to a community center should stay in an intermediate facility. As to whether it's appropriate, your Honor or whether they are opposed or not opposed. Either way, is there a procedure where it was an intelligent decision to be prepared to be in the half of that resident as to what's in that resident's best interest? Absolutely. Absolutely. That's part of the whole process that's undertaken by the department, not only in this case, but in every case that they make the determination that this person is appropriate and they believe that everyone is appropriate for service. Right. If the guardian is opposed, they're not going to do anything. Or the family members opposed, they're not going to do anything. And the planning process includes everyone. Correct. And as to the opposition, again, Your Honor, the decision making is left in the default group, Judge Cowan, is left to the facility, Dr. Gunder State long. That's who is the person who's supposed to make the decision. He was talking about the importance of an individualized assessment. There is the protocol. It does go through an individualized assessment. And if I may, the protocol goes to, although this is partially what Ms. Lysial speak about, the protocol goes has been underway for a year or so. And in fact, what happens is every individual person is in the interview with a person who is very familiar with them from the facility who's an expert in intellectual disability services. And they assess whether the person first can even understand what they're talking about. They're not a way to accommodate his interest without having to undo the entire class. His interests are being accommodated, Your Honor, because this does not affect him because he's still opposed to community services

. Certainly. So by default they're making a choice which they've never made. Your Honor, they are represented by a guardian, the facility director who is making the choice for them. Justice Mr. Solano was making the choice for his sister. You have a procedure in place where it can be determined on an individual basis whether that resident should go to a community center should stay in an intermediate facility. As to whether it's appropriate, your Honor or whether they are opposed or not opposed. Either way, is there a procedure where it was an intelligent decision to be prepared to be in the half of that resident as to what's in that resident's best interest? Absolutely. Absolutely. That's part of the whole process that's undertaken by the department, not only in this case, but in every case that they make the determination that this person is appropriate and they believe that everyone is appropriate for service. Right. If the guardian is opposed, they're not going to do anything. Or the family members opposed, they're not going to do anything. And the planning process includes everyone. Correct. And as to the opposition, again, Your Honor, the decision making is left in the default group, Judge Cowan, is left to the facility, Dr. Gunder State long. That's who is the person who's supposed to make the decision. He was talking about the importance of an individualized assessment. There is the protocol. It does go through an individualized assessment. And if I may, the protocol goes to, although this is partially what Ms. Lysial speak about, the protocol goes has been underway for a year or so. And in fact, what happens is every individual person is in the interview with a person who is very familiar with them from the facility who's an expert in intellectual disability services. And they assess whether the person first can even understand what they're talking about. They're not a way to accommodate his interest without having to undo the entire class. His interests are being accommodated, Your Honor, because this does not affect him because he's still opposed to community services. So he's not affected. Are you saying that people have never made a choice and cannot make a choice or unaffected by this? No, Your Honor, I'm not saying that. I'm saying that. I'm saying that's just a lot of side-effect because he is making a choice. And he doesn't represent those people. People, if someone is there who is incapable of making a choice, they have no guardian. Even if the guardian asked them, there could be no choice. My default, they would automatically make a choice for ICF, correct? That's the state's policy, Your Honor. Let me ask you, I take it, there's so much money involved. You can only spend so much for institutional care and so much for community care. Why should these people who are going to be moved have some say at least at the district court level as to, you know, the state wanting to move everyone into community care and saying, well, you know, we want to stay in the state care. We don't want to be in the community. But they aren't given that opportunity. And Mr. Salano and his clients have used that opportunity to oppose. No, they're not giving that. My default are moved into community care. Only those who have no guardian or family members. And again, Your Honor, it's not a default, which it's not a term I would have used, but they're people who've been cared for by the state for years and years, who people who know them, people who understand them. And the people that are making the decision whether they should move into a community services are those very same people. Facility director is the operative entity, but he is supported by professional judgment of staff of those facilities that make those determinations. And the on-state court said the courts must prefer their professional judgment. But the court also, the spring court and all the on-state also said that they're going to defer to the state's availability of resources. Your Honor, I don't think, if you look at the Judge's table's decision in the last go-around, their interest in funding was not relevant as far as he was concerned. The fact that it might cost money, that's not an issue here. If the state spends money for institutional care, they're going to have less for people to stay in state care. Your Honor, not only is it an issue, it might be what this whole case is about

. So he's not affected. Are you saying that people have never made a choice and cannot make a choice or unaffected by this? No, Your Honor, I'm not saying that. I'm saying that. I'm saying that's just a lot of side-effect because he is making a choice. And he doesn't represent those people. People, if someone is there who is incapable of making a choice, they have no guardian. Even if the guardian asked them, there could be no choice. My default, they would automatically make a choice for ICF, correct? That's the state's policy, Your Honor. Let me ask you, I take it, there's so much money involved. You can only spend so much for institutional care and so much for community care. Why should these people who are going to be moved have some say at least at the district court level as to, you know, the state wanting to move everyone into community care and saying, well, you know, we want to stay in the state care. We don't want to be in the community. But they aren't given that opportunity. And Mr. Salano and his clients have used that opportunity to oppose. No, they're not giving that. My default are moved into community care. Only those who have no guardian or family members. And again, Your Honor, it's not a default, which it's not a term I would have used, but they're people who've been cared for by the state for years and years, who people who know them, people who understand them. And the people that are making the decision whether they should move into a community services are those very same people. Facility director is the operative entity, but he is supported by professional judgment of staff of those facilities that make those determinations. And the on-state court said the courts must prefer their professional judgment. But the court also, the spring court and all the on-state also said that they're going to defer to the state's availability of resources. Your Honor, I don't think, if you look at the Judge's table's decision in the last go-around, their interest in funding was not relevant as far as he was concerned. The fact that it might cost money, that's not an issue here. If the state spends money for institutional care, they're going to have less for people to stay in state care. Your Honor, not only is it an issue, it might be what this whole case is about. Your Honor, well, I respectfully disagree and I rely on Judge Stapleson's reasoned opinion in this case before that the appellans don't have any right for a particular amount of funds. They don't have a right to funds at all, but and that the state is entitled to use this money the way it wants to. It's their program. I'm sorry, Your Honor. Thank you very much. Thank you, Your Honor. Ms. Lyshe, following up where Mr. Meek left off. Why isn't the department that you represent perfectly capable working with the governor and the legislature to determine which funds will be used for hot patient care, which funds will be used for institutional care? Well, Judge Fisher, we did make that argument before the district court and unfortunately I'm not sure, for some very judgment district court rejected it and said that we had been in the field. No, we did not appeal it. We guided, let's say, by this court's decision in Frederick, L took the district court's decision too hard, saying that it did not have the plan that we had submitted to raise our fundamental alteration defense. Didn't have the specific benchmarks both with respect to the number of people in the time frame for moving people out of institutions and we didn't think frankly that we would have the basis on which to appeal other than say as the court to reconsider Frederick L. Well, but Mr. Solano with his clients are here today to say that the district court made a mistake in approving this settlement and asking us to send this back for the reasons that are stated, which would certainly give an opportunity to relitigate this whole question as to who's going to have a say in the future planning for deinstitutionalization? Well, I understand the question because in fact the department did have quite a great say in the negotiation of the settlement agreement and the plaintiff, the plaintiff didn't get everything that they wanted. The big thing that the plaintiff's got that was different from what the department had intended to, or did submit actually as part of its effectively working comprehensive plan to move people out of the state centers was that the department hadn't identified the number of people in the time frame within which people would move and also left it pretty much up to whether or not funding would be available and the district court said that that was unacceptable. And so basically what the settlement agreement does is put those modified what the department had submitted to put those benchmarks on that definiteness for lack of a better way of saying it into the plan. Now one of the things that I do want to bring to the court's attention just to avoid confusion, Mr. Solano and Mr. Hauffer do not represent the people who are unable to speak and have their guardians or family members. The people who they represent in fact have guardians or other family members actually I think at this point all of them are guardians. So they are not representing, for example, if the court were to remand back to the district court, they don't represent those people. And in fact, as Mr. Meek has already pointed out, who does represent those people by state law, both statute and the Department of Public Welfare Statement of Policy is the facility director at each one of the centers. So you think going back to my initial question to you, you think that the settlement as it is was agreed to provides DPW with an appropriate role moving forward. I absolutely do your honor and the reason that I do is because it leaves to the departments the discretion to plan for as is its role the people who are going to be moving out the state centers. You have 1200 people now in the state centers, you have five state centers

. Your Honor, well, I respectfully disagree and I rely on Judge Stapleson's reasoned opinion in this case before that the appellans don't have any right for a particular amount of funds. They don't have a right to funds at all, but and that the state is entitled to use this money the way it wants to. It's their program. I'm sorry, Your Honor. Thank you very much. Thank you, Your Honor. Ms. Lyshe, following up where Mr. Meek left off. Why isn't the department that you represent perfectly capable working with the governor and the legislature to determine which funds will be used for hot patient care, which funds will be used for institutional care? Well, Judge Fisher, we did make that argument before the district court and unfortunately I'm not sure, for some very judgment district court rejected it and said that we had been in the field. No, we did not appeal it. We guided, let's say, by this court's decision in Frederick, L took the district court's decision too hard, saying that it did not have the plan that we had submitted to raise our fundamental alteration defense. Didn't have the specific benchmarks both with respect to the number of people in the time frame for moving people out of institutions and we didn't think frankly that we would have the basis on which to appeal other than say as the court to reconsider Frederick L. Well, but Mr. Solano with his clients are here today to say that the district court made a mistake in approving this settlement and asking us to send this back for the reasons that are stated, which would certainly give an opportunity to relitigate this whole question as to who's going to have a say in the future planning for deinstitutionalization? Well, I understand the question because in fact the department did have quite a great say in the negotiation of the settlement agreement and the plaintiff, the plaintiff didn't get everything that they wanted. The big thing that the plaintiff's got that was different from what the department had intended to, or did submit actually as part of its effectively working comprehensive plan to move people out of the state centers was that the department hadn't identified the number of people in the time frame within which people would move and also left it pretty much up to whether or not funding would be available and the district court said that that was unacceptable. And so basically what the settlement agreement does is put those modified what the department had submitted to put those benchmarks on that definiteness for lack of a better way of saying it into the plan. Now one of the things that I do want to bring to the court's attention just to avoid confusion, Mr. Solano and Mr. Hauffer do not represent the people who are unable to speak and have their guardians or family members. The people who they represent in fact have guardians or other family members actually I think at this point all of them are guardians. So they are not representing, for example, if the court were to remand back to the district court, they don't represent those people. And in fact, as Mr. Meek has already pointed out, who does represent those people by state law, both statute and the Department of Public Welfare Statement of Policy is the facility director at each one of the centers. So you think going back to my initial question to you, you think that the settlement as it is was agreed to provides DPW with an appropriate role moving forward. I absolutely do your honor and the reason that I do is because it leaves to the departments the discretion to plan for as is its role the people who are going to be moving out the state centers. You have 1200 people now in the state centers, you have five state centers. Let's suppose this process goes on for the next 10 to 15 years and you hopefully not. And you get down not just litigation. The process. It's not not the litigation. I'll be long gone by that. But 10, 15 years from now, end up with 200 people who are still in institutions from all over the state, from Erie to Delaware County. Who does? There was actually a test mode. Do you have enough flexibility to determine where you put them? Well, certainly. And I think part of the problem here is it's not the plaintiffs that are trying to remove that flexibility from the department. It's the it's the appellance because what the appellance are trying to assert and the department believes incorrectly as a matter of law is that they have a right to institutional placement. They have a right to institutional care under on state. And in fact, on the state, just as Ginsburg in on the state said exactly the opposite when in a footnote when she was responding to the dissent said, we're not establishing any requirement on the part of the state that the state has to provide any level here. The position was they had a right to be heard. And as to what the settlement should be, you're you're putting words in their mouth. No, actually, sorry, Judge Cowan, the reason that they're saying that they have a right to be heard is because they're claiming that they have a right to to stay in the institution. That is what they're claiming. And that is the basis of what they're claiming. And their position now is that might be so, but their position in litigation is they had a right to be heard to show that the class was improperly constituted after the settlement is not appropriate. But what it should be or should be is a marriage determination. Their position is they had a right to be heard as to what the class was and they were never given that opportunity. And the only way that the court can accept that position is that if the court does what the district court properly was unwilling to do, which is to override or ignore the states, the policy decision, the judgment exercised by the state's professionals and the state's policy makers, that it is in fact the case that every person with an intellectual disability can be served in the community with appropriate supports and services. But that is in fact the long standing. Just to take your statement, are all community-based centers equipped to handle any resident from the state care or will there be a specific community? Are they, if they move everyone out of the state here are the community services sufficient to handle all those people? One of the things that I did want to talk about during the course of my presentation was the process whereby services and programs will be developed for the people who are in the state centers because although that process I believe informs the district court's decision, he didn't talk about it in the opinion. It's meticulous painstaking process that brings together everybody who will be involved, including parents, guardians, and bulk family member, anybody else who the resident says, the people from the county where the person is going to be going, potential providers possibly, they come together, they sit down, of course the people at the facility as well as the people that the person is going to be going to in the community, they sit down and they say, what will Darius need? Okay, and then they say, Darius needs x, y, and z, she's going to need 24 hour care, she's going to need nursing services, she's going to need a billetation, she needs a day program, etc. Okay, do we have that in the community? No, you know what, we don't have that in your county. So we're going to have to develop that in your county. So it looks like it's going to take a little longer than usual to get Darius out of the center, but we are going to get her out and she is going to have the appropriate services once you get set

. Let's suppose this process goes on for the next 10 to 15 years and you hopefully not. And you get down not just litigation. The process. It's not not the litigation. I'll be long gone by that. But 10, 15 years from now, end up with 200 people who are still in institutions from all over the state, from Erie to Delaware County. Who does? There was actually a test mode. Do you have enough flexibility to determine where you put them? Well, certainly. And I think part of the problem here is it's not the plaintiffs that are trying to remove that flexibility from the department. It's the it's the appellance because what the appellance are trying to assert and the department believes incorrectly as a matter of law is that they have a right to institutional placement. They have a right to institutional care under on state. And in fact, on the state, just as Ginsburg in on the state said exactly the opposite when in a footnote when she was responding to the dissent said, we're not establishing any requirement on the part of the state that the state has to provide any level here. The position was they had a right to be heard. And as to what the settlement should be, you're you're putting words in their mouth. No, actually, sorry, Judge Cowan, the reason that they're saying that they have a right to be heard is because they're claiming that they have a right to to stay in the institution. That is what they're claiming. And that is the basis of what they're claiming. And their position now is that might be so, but their position in litigation is they had a right to be heard to show that the class was improperly constituted after the settlement is not appropriate. But what it should be or should be is a marriage determination. Their position is they had a right to be heard as to what the class was and they were never given that opportunity. And the only way that the court can accept that position is that if the court does what the district court properly was unwilling to do, which is to override or ignore the states, the policy decision, the judgment exercised by the state's professionals and the state's policy makers, that it is in fact the case that every person with an intellectual disability can be served in the community with appropriate supports and services. But that is in fact the long standing. Just to take your statement, are all community-based centers equipped to handle any resident from the state care or will there be a specific community? Are they, if they move everyone out of the state here are the community services sufficient to handle all those people? One of the things that I did want to talk about during the course of my presentation was the process whereby services and programs will be developed for the people who are in the state centers because although that process I believe informs the district court's decision, he didn't talk about it in the opinion. It's meticulous painstaking process that brings together everybody who will be involved, including parents, guardians, and bulk family member, anybody else who the resident says, the people from the county where the person is going to be going, potential providers possibly, they come together, they sit down, of course the people at the facility as well as the people that the person is going to be going to in the community, they sit down and they say, what will Darius need? Okay, and then they say, Darius needs x, y, and z, she's going to need 24 hour care, she's going to need nursing services, she's going to need a billetation, she needs a day program, etc. Okay, do we have that in the community? No, you know what, we don't have that in your county. So we're going to have to develop that in your county. So it looks like it's going to take a little longer than usual to get Darius out of the center, but we are going to get her out and she is going to have the appropriate services once you get set. And until those services, what happens if Darius makes a very fairly clear state that I don't want to go to a community she doesn't go either herself or through a guardian. She doesn't go. How about if Darius is severely impaired and can't verbalize? In that situation, you're on what we are saying, is pursuant to the policy that is frankly supported, if not directed by federal law, as well as the literature in the community. That person, the option for that person is to stay institutionalized, right? Not realize the hope that the ADA brought to disabled people or to give it a shot in the community. And what the department is saying and has said for the last 20 to 30 years is that people deserve a shot in the community and we are going to do what we need to do to give them that shot. Who is we? The Department of Public Welfare. Sorry. How about if the guardian says no? If the guardian says no, Olmstead made clear that people who oppose moving to the community don't have to go. Okay? So clearly the department is going to honor that choice. And if the person cannot make a choice cognitively, they're unable to make the choice. Yes. They automatically make a choice by default. Because... No, what I said is that... Let me say it this way. What I meant to say is in that situation, the facility director on their state statute and Department of Public Welfare statements of policy interpreting that statute steps in as the guardian. Not just with respect to whether or not a person moves into the community, but for every healthcare decision, where every decision, frankly, that's made on behalf of that person. And Judge Fisher, can I go back and answer your question? Yes, Mr. Meagabat. What's the big difference here? Okay. The difference is..

. And until those services, what happens if Darius makes a very fairly clear state that I don't want to go to a community she doesn't go either herself or through a guardian. She doesn't go. How about if Darius is severely impaired and can't verbalize? In that situation, you're on what we are saying, is pursuant to the policy that is frankly supported, if not directed by federal law, as well as the literature in the community. That person, the option for that person is to stay institutionalized, right? Not realize the hope that the ADA brought to disabled people or to give it a shot in the community. And what the department is saying and has said for the last 20 to 30 years is that people deserve a shot in the community and we are going to do what we need to do to give them that shot. Who is we? The Department of Public Welfare. Sorry. How about if the guardian says no? If the guardian says no, Olmstead made clear that people who oppose moving to the community don't have to go. Okay? So clearly the department is going to honor that choice. And if the person cannot make a choice cognitively, they're unable to make the choice. Yes. They automatically make a choice by default. Because... No, what I said is that... Let me say it this way. What I meant to say is in that situation, the facility director on their state statute and Department of Public Welfare statements of policy interpreting that statute steps in as the guardian. Not just with respect to whether or not a person moves into the community, but for every healthcare decision, where every decision, frankly, that's made on behalf of that person. And Judge Fisher, can I go back and answer your question? Yes, Mr. Meagabat. What's the big difference here? Okay. The difference is... And this is what I said, that the only way the court can accept Mr. Solano and the Appellants' argument is if they just disregard the longstanding policy of the department. And the reason is the the class is defined to say or to be people who live in the state centers, who can live in the community with appropriate sports and services and who don't oppose discharge. Okay. Mr. Solano's point, not that I intend to speak for him, but my understanding on Mr. Solano's point is that you can't make a decision about whether or not somebody can live in the community unless you're doing an individualized determination of whether or not somebody can live in the community. And that defeats copesiveness and therefore you can have a class. The department's position is everybody can live in the community so that the assessment of what services and supports are needed happens after the decision is made that they go into the community not before to make the decision about whether or not they go into the community. So the same process will happen, but legally there's a huge difference because the you acknowledge right now there are facilities in the community to take care of. But the department is willing, I'm so sorry, I am so sorry to acknowledge as I think the the briefing that there are not facilities in the community to take care of these severely disabled people. No, no, no, no, no, what I meant was there are there might in fact currently be for one person or another who is currently at a state center not a vacancy in the community such that the the department would have to develop in conjunction with the county and providers a new program by a new house set it up staff it, et cetera, et cetera. It is absolutely the case and there was a lot of testimony at the fair hearing to this effect that it is absolutely true and I think that a balance and a lot of the objectives really don't realize this but it is absolutely the case that every single person who is served in the state center has a counterpart in the community and we have a whole variety of services available to people to support them in the community so that it is not true as I think the opponents argued in their brief that somebody who needs 24 hour supervised care cannot live in the community that is just not true because there are a lot of people in the community who have 24 hour care. How much money is the state going to allocate percentage wide to state care and the community care? No, sorry, I don't know the answer to that question. There will be a sub just about everything will though be allocated majority, overwhelming majority to community care. I believe it already is. I mean we spend over a billion dollars on community care. And how much they spend on state care? I would be guessing I really don't know actually. A percentage of that how much percentage wide? Well if you think it costs, I'm going to give you numbers that I do know it costs about $250,000 a year to serve somebody in a state center and there are approximately 1100 people in the state center. And how much will it cost us to to care for that person in the community care? It depends on the person. Some people can cope. Most of the people at the state centers are going to require a lot of care. Okay, so when the the less expense that it would be in state care? Yeah, well it would ultimately be less expensive, but one of the arguments that the department made in the district court in response or at summary judgment was that there is a transition period when in fact it costs more money because you have to fund both the state centers as well as the community care. And the department doesn't really start to realize any savings until enough people leave that it results in a unit closing or possibly a facility closing and speaking of closures. We're going to have to get moving. Would you finish at that point please? This settlement agreement does absolutely not speak to, does not contemplate the idea of closures. And there was testimony at the fair hearing that the department has no intent

. And this is what I said, that the only way the court can accept Mr. Solano and the Appellants' argument is if they just disregard the longstanding policy of the department. And the reason is the the class is defined to say or to be people who live in the state centers, who can live in the community with appropriate sports and services and who don't oppose discharge. Okay. Mr. Solano's point, not that I intend to speak for him, but my understanding on Mr. Solano's point is that you can't make a decision about whether or not somebody can live in the community unless you're doing an individualized determination of whether or not somebody can live in the community. And that defeats copesiveness and therefore you can have a class. The department's position is everybody can live in the community so that the assessment of what services and supports are needed happens after the decision is made that they go into the community not before to make the decision about whether or not they go into the community. So the same process will happen, but legally there's a huge difference because the you acknowledge right now there are facilities in the community to take care of. But the department is willing, I'm so sorry, I am so sorry to acknowledge as I think the the briefing that there are not facilities in the community to take care of these severely disabled people. No, no, no, no, no, what I meant was there are there might in fact currently be for one person or another who is currently at a state center not a vacancy in the community such that the the department would have to develop in conjunction with the county and providers a new program by a new house set it up staff it, et cetera, et cetera. It is absolutely the case and there was a lot of testimony at the fair hearing to this effect that it is absolutely true and I think that a balance and a lot of the objectives really don't realize this but it is absolutely the case that every single person who is served in the state center has a counterpart in the community and we have a whole variety of services available to people to support them in the community so that it is not true as I think the opponents argued in their brief that somebody who needs 24 hour supervised care cannot live in the community that is just not true because there are a lot of people in the community who have 24 hour care. How much money is the state going to allocate percentage wide to state care and the community care? No, sorry, I don't know the answer to that question. There will be a sub just about everything will though be allocated majority, overwhelming majority to community care. I believe it already is. I mean we spend over a billion dollars on community care. And how much they spend on state care? I would be guessing I really don't know actually. A percentage of that how much percentage wide? Well if you think it costs, I'm going to give you numbers that I do know it costs about $250,000 a year to serve somebody in a state center and there are approximately 1100 people in the state center. And how much will it cost us to to care for that person in the community care? It depends on the person. Some people can cope. Most of the people at the state centers are going to require a lot of care. Okay, so when the the less expense that it would be in state care? Yeah, well it would ultimately be less expensive, but one of the arguments that the department made in the district court in response or at summary judgment was that there is a transition period when in fact it costs more money because you have to fund both the state centers as well as the community care. And the department doesn't really start to realize any savings until enough people leave that it results in a unit closing or possibly a facility closing and speaking of closures. We're going to have to get moving. Would you finish at that point please? This settlement agreement does absolutely not speak to, does not contemplate the idea of closures. And there was testimony at the fair hearing that the department has no intent. The Commonwealth has no intent. It's currently to close facilities. Can anybody speak to what's going to happen five or ten years from now? No, but it's not going to be because of this settlement agreement. Thank you, Ms. Lynch. Thank you very much. Mr. Salano. Your Honours, let me try to speak to three issues. Individual of determinations, the policy questions of the judge Fisher raised and are standing. The individual determinations, I just want to be clear because there's been a lot of positions shifting around. The way this settlement works is, the department has already determined that everyone is eligible to move to the community. But, they're professionals and all the states say you look to the professionals, have written into many of these individuals ISPs statements that those individuals are not. Is there something to suggest that they are not going to do that? Do what, Your Honour? Defer to the ISPs? No, no, that they're going to consult with professionals to determine whether a transfer or move to the community centers is appropriate. What they're going to do judge Frente's is, as Ms. Lynch said, rather than make the determination whether it is appropriate, they've already made that determination. They're going to try to find an appropriate facility in which to place them in the community. But, they've already decided, that's what they want to put. Well, they certainly have done that for those who express the desire to go to a community center. Your Honour, they have done that for a great many people, many of whom are not as severely disabled, both medically and mentally as this population. And so, as Judge Collin points out, the cost of doing this for this population is going to be so high that one of the things we question is its feasibility, given the current economic climate. They say we're going to do it. But, the feasibility of that is really open to questions. So, in terms of individualized what they're doing, they're not making an individualized determinist determination whether they should move. They've already turned that for everybody. They're going to move everyone. They're going to move everyone to try to find an appropriate facility

. The Commonwealth has no intent. It's currently to close facilities. Can anybody speak to what's going to happen five or ten years from now? No, but it's not going to be because of this settlement agreement. Thank you, Ms. Lynch. Thank you very much. Mr. Salano. Your Honours, let me try to speak to three issues. Individual of determinations, the policy questions of the judge Fisher raised and are standing. The individual determinations, I just want to be clear because there's been a lot of positions shifting around. The way this settlement works is, the department has already determined that everyone is eligible to move to the community. But, they're professionals and all the states say you look to the professionals, have written into many of these individuals ISPs statements that those individuals are not. Is there something to suggest that they are not going to do that? Do what, Your Honour? Defer to the ISPs? No, no, that they're going to consult with professionals to determine whether a transfer or move to the community centers is appropriate. What they're going to do judge Frente's is, as Ms. Lynch said, rather than make the determination whether it is appropriate, they've already made that determination. They're going to try to find an appropriate facility in which to place them in the community. But, they've already decided, that's what they want to put. Well, they certainly have done that for those who express the desire to go to a community center. Your Honour, they have done that for a great many people, many of whom are not as severely disabled, both medically and mentally as this population. And so, as Judge Collin points out, the cost of doing this for this population is going to be so high that one of the things we question is its feasibility, given the current economic climate. They say we're going to do it. But, the feasibility of that is really open to questions. So, in terms of individualized what they're doing, they're not making an individualized determinist determination whether they should move. They've already turned that for everybody. They're going to move everyone. They're going to move everyone to try to find an appropriate facility. As far as individualized choice, if somebody is incapable of making the choice and they don't have a guardian or family member, they go on the list. If somebody has a guardian or family member who objects, they don't go on the list until such time as that guardian or family member becomes unavailable at which time they do go on the list. So, if I die and I don't leave an appropriate substitute, Diane goes on the list. If I'm unavailable and it sounds draconian, but there's actually testimony saying this is the way this works. So, there's not a whole lot of choice there. What they're saying in effect is that these people are too disabled to have a right to choose and therefore we're just going to put them on the list and move them. If we want to have individual choice, this courts decision a few months ago in a public health case about appointing guardians at a item and having guardians make individual determinations about how susceptible these people are to change has something to be done. I have a little concern, Mr. Slano, about what I understand you would like to happen, which is to stop everything. You want to go back into the district or to undo this class, but everything to a halt and start all over again. But there would be no class. And I'm wondering about all the people who would be affected by that decision. Could you talk to me about why as a practical matter, as a policy matter, this makes good sense? As a policy matter, Your Honor, what makes sense is to have everybody individually determined. One of the things that we do not oppose is creation of an appropriate protocol so that those people who choose to move will be able to do so. What we do oppose is putting everybody on the list and saying they automatically have to choose. So a protocol can be in place. The idea of individual assessment to you is inconsistent with a class format. Yes, Your Honor. I mean because I think everything if you're going to say the relief is that they have to be relocated, that requires an individualized determination as to whether it's appropriate and whether they want that to happen. It's not appropriate for everyone Your Honor because we have testimony here about how many of these people have lived here for four decades. This is their home, this is their community. They call the staff mommy. These people, some of them are just not susceptible to change. We have testimony. One of the objection letters about how they move through to a different building and the person who stopped eating. These are very serious decisions that you have to take an individualized look at. And that brings me to policy

. As far as individualized choice, if somebody is incapable of making the choice and they don't have a guardian or family member, they go on the list. If somebody has a guardian or family member who objects, they don't go on the list until such time as that guardian or family member becomes unavailable at which time they do go on the list. So, if I die and I don't leave an appropriate substitute, Diane goes on the list. If I'm unavailable and it sounds draconian, but there's actually testimony saying this is the way this works. So, there's not a whole lot of choice there. What they're saying in effect is that these people are too disabled to have a right to choose and therefore we're just going to put them on the list and move them. If we want to have individual choice, this courts decision a few months ago in a public health case about appointing guardians at a item and having guardians make individual determinations about how susceptible these people are to change has something to be done. I have a little concern, Mr. Slano, about what I understand you would like to happen, which is to stop everything. You want to go back into the district or to undo this class, but everything to a halt and start all over again. But there would be no class. And I'm wondering about all the people who would be affected by that decision. Could you talk to me about why as a practical matter, as a policy matter, this makes good sense? As a policy matter, Your Honor, what makes sense is to have everybody individually determined. One of the things that we do not oppose is creation of an appropriate protocol so that those people who choose to move will be able to do so. What we do oppose is putting everybody on the list and saying they automatically have to choose. So a protocol can be in place. The idea of individual assessment to you is inconsistent with a class format. Yes, Your Honor. I mean because I think everything if you're going to say the relief is that they have to be relocated, that requires an individualized determination as to whether it's appropriate and whether they want that to happen. It's not appropriate for everyone Your Honor because we have testimony here about how many of these people have lived here for four decades. This is their home, this is their community. They call the staff mommy. These people, some of them are just not susceptible to change. We have testimony. One of the objection letters about how they move through to a different building and the person who stopped eating. These are very serious decisions that you have to take an individualized look at. And that brings me to policy. Judge Fisher, nothing stopped DPW. Over all of these years, from deciding that a particular individual would do better in the community and we ought to move them there. And if somebody didn't agree with that, somebody could file a suit and we'd be here under rules of administrative discretion and all of that sort of stuff, but it would be DPW. What happened here though is instead they subjected themselves to a court order so that now it's not a matter they're saying, well, you know, the court is making us do it. And so now as a result, the legislature has got to fund this. Not the way the legislature and the policy makers decide it, but the way the court order has done. We suggest, suggest your honor that that makes no sense. Senator White talked about this something at the hearing about the budget problems that the state is facing and how just just makes no sense from a policy matter. And finally, your honor, I suggest that we do have standing because the settlement affects us directly and because the settlement is defined as should be the class as defined as those who do not oppose or would not oppose, we're all willing to agree that we may at some point not oppose if this is done right, but the terms of the settlement we object to. Thank you, Your Honor. One point question. Yes, Your Honor. If we were to remain in the district court and would it order that you will properly intervene at that level, what if these such a fatal complete that you get the automatically the same results? I mean, you know, district judges have been swayed. I mean, I've reversed myself a number of times based on on information which I would not consider or or properly considered. So do you think it's a futile gesture not to the side that the matter here rather than dissed? Judge Collin, I would never suggest that Judge Jones would not listen to what this court has to say and decide appropriately. Of course, he would. Your Honor, I suggest you simply that it was unnecessary because I think the record is already clear as to how it ought to be decided, but we certainly are not suggesting that Judge Collin would not do the right thing for which we're appropriate. I think, you know, but I think in terms of Feta-Complete, I thought it was telling that one of Mr. Meeks' responses to Your Honor's question about where is the prejudice, is he said, well, if you let them in, the class is going to get decertified. I think it pretty much shows that there's really not a whole lot of basis to support this class. Thank you, Your Honor.

And we'll call the next case. Franklin Benjamin versus Department of Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Public Good morning, Your Honors. May I please the Court? My name is Carl Salano. I am a guardian for one of the residents whose facilities are an issue in this case. And she is the appellant in number 113685. But I am here to argue on behalf of the appellants in both appeals. Judge Fuente's May I reserve four minutes for rebuttal. Yes sir. Thank you, Your Honor. Your Honor, the residents of these institutions, the state centers, are some of the most vulnerable members of our society. They are in 75% of the cases profoundly disabled. That means that they have the mental abilities of infants and toddlers. And I think it is very important that we keep that in mind as we consider the issues here. More than 80% of them don't have guardians. A substantial number do not have involved family members. The number is disputed. But I believe plaintiffs counsel has put it somewhere around 20%. And so we are here in a situation where an action was brought by the Americans with disabilities act by five individuals who wish under the ADA to be moved out of the state centers to another facility. No one disagrees with that. May I ask you what it is that you are asking this court to do? We are asked. I'm sorry. Is it is it the set aside a settlement and to decertify classes at the thrust of your. Yes, Your Honor. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. the remedy which the remedy which the merits and the remedy which the district court did not have it before because you had it before but without your presence. Your honor the district court had before us before it at the time of the settlement approval here. The objections that were filed by us and a hundred some odd other objectives in which we raised these issues. So these issues were before the district court. The district court heard them if he cited that it sort of entertained them sort of did not because maybe were members of the class and maybe were not members of the class. We submit Judge Cowan we are members of the class were properly here and the court has the power now to order that it was improper to certify this class and that it was improper to approve this settlement. Certainly if the court doesn't do that we welcome a remand to make us parties but we don't think it's necessary I'm sorry Judge why why is it Mr. Meek correct that this issue is a very issue about whether you should be a member of the classroom not was already decided by our court and why is that not along the case. Your honor the prior decision by this court was a decision on intervention. It was not a decision on it was a decision on intervention. It was not a decision on the propriety of class certification. Mr. Solano you're back here on a second attempt to intervene. Are you not? I'm sorry you're on your back here on a second attempt to intervene. I know you weren't you the party you're representing both as guardian and counsel was not part of that first appeal but yet your interests are similar in your honor we're back here on a second attempt to be heard okay but we are back here on a second attempt to be heard in an entirely different context okay let me just stop you right there at that point. It seems to me that you and you chose to use the word be heard as opposed to intervene. It seems to me not only are you being heard today but the district court heard you and took into consideration many of the objections that you pose. Judge Fisher the district court allowed us to argue at the settlement approval hearing the district court then issued an opinion in which it said that the objections that it raised were by non-class members and therefore did not need to be entertained and so I have to be candid Judge Fisher I'm not sure to what extent the district court heard it court heard us and didn't because the court's opinion was ambiguous on that point we were there and yet it's he said that he didn't need to hear us. We believe your honor we can cut through all of this just by the fact that you're right we're here being heard today we're here being heard today because we have standing to be heard today because we are class members we are class members if I may be trying to judge Flentys question because this case has changed dramatically since this court's last decision that decision was entered before there was a settlement agreement that decision was entered at a time when this court said in its opinion that this case was going to bind and this is this court's words only those who affirmatively expressed their desire to be discharged since that time the parties entered into a settlement agreement it binds everybody. You represent five plaintiffs. Is that right? It's I believe eight your honor but okay. But how many would you count in your class? The plaintiffs class consists of I believe your honor all states and residents which are approximately 1100 to 1200 people. Is there an interest that you are you are promoting for your your clients that was not adequately represented in the class? Yes. Well our our interest was not adequately represented because the only interest that were adequately represented were those of those members who wished to be removed from the state centers. There were a hundred and some objections stating not only do we not want to be removed from the state centers but there are aspects of this settlement. Wasn't there a provision in the protocol that would allow you to opt out of that movement to community centers by expressing your desire not not to be moved? Your honor it is a provision that is subject to a number of contingencies. It says that we are not currently member we if we do not currently desire to be removed we don't have to be but we may be in the future if we do desire to be removed and then it sets up a protocol that says. What do you really have to best to both worlds here? Your honor you know when I was told when I read the plaintiffs position that said you know you're not a part of this class and this doesn't affect you at all and therefore you get away Scott free and don't worry about it. I can't tell you how tempting it was to accept that and walk away but it's not true. This settlement binds everybody it suggests us to annual reviews under which we are required to state opposition and if we don't up here at those reviews that does all of a sudden my sister is deemed to have agreed to be removal because I wasn't there to speak for her and she's incapable of doing it. All right but your sisters represent and then you indicated you're your sister's guardian. I am. Your sister at least has a guardian and are going to assume that your sister is going to be spoken for. Your honor today my sister is going to be spoken for. One of the provisions of this agreement is if I die and I don't appoint a proper substitute suddenly she's not spoken for. So my substitute right now is my wife if we go on vacation the plane goes down she's not spoken for. Hasn't the legislature established the DPW will be the entity that will speak for those who don't have a guardian. Your honor isn't that the role and I mean I mean you we have to assume that the department that has been directed to manage this class is in fact going to speak properly for those individuals who don't have a guardian. Your honor the DPW and appropriate circumstances may speak for the residents under its care but here your honor there is a conflict. DPW the question is what do these residents want and need. Do some of these residents have ISPs prepared by professionals hired by these residents are you talking about all 1200? I am. These residents some of them my sister included have ISPs prepared by DPW professional staff that say it is inappropriate to move them out of the state centers to the community and yet DPW's administrative personnel have stipulated that everybody can be moved anyway. DP some of these residents may not want to move. DPW has declared that all residents are going to be deemed to move if they lack the sufficient capacity to answer the question. In order to be moved you have you general layer placed on what's called a planning list. DPW that's correct your honor. DPW I am looking at a protocol and you correct me if I'm mistaken but it says it if a number of parties are listed in the series of parties I see about 10 different categories but the the last one says if one of these parties subsequently checks to the community placement the resident will be removed from the state planning list. DPW that's right your honor I think if you go down to something like the seventh bullet there there are the parties who are incapable of objecting because they do not have the intellectual capacity to understand the question and do not that person would not be removed that person would be removed. I know that you're assuming that DPW would be of a person that shouldn't be. Your honor that's what the protocol says the protocol says that if you are incapable of answering this question you had discussion you'll be put on the list if you're incapable. Once you put on the list it doesn't be removed. DPW it doesn't mean you're going to be removed. DPW once you're assuming that they're going to close down the state center. DPW no your honor I'm assuming that the purpose of the list as stated in the settlement agreement is to list those people who will be removed that's the purpose of the list. DPW right and that's the kernel of your argument that but although at the merit section you may not have been a member of the class at this point by reason of the settlement you are at least should be a herde as concerning what the class should constitute and what any settlement should be because people that can't speak for themselves will by default automatically be deemed to consent to being removed. Kurecht's colon that's correct. DPW and that position could not be voiced prior to the settlement which was reached in the district court. DPW exactly. Kurecht are you talking about the more seriously impaired individuals? DPW I am your honor which includes both those who have so impaired they can't understand and have no guardians. Kurecht how big is that group? DPW we Mr. Meek plaintiffs council estimated at the settlement approval hearing that we're talking about 125 people currently and then we have to talk about those schools guardians or family members die pass away become unavailable because remember your honor many of these individuals were placed there by their parents some years ago who are now elderly and dying. Kurecht what would happen if you were to prevail and we were to agree that the settlement has to be vacated you go back into the class. Is that put a halt to all of this planning that has taken place? I mean does that mean you got to start back to square one? DPW if your honor if I'm understanding your honor's question you mean if you vacate the class order and you vacate the settlement. Kurecht you've got to vacate the settlement. DPW your honor what it means is that those individuals who file the suit and have asked to be discharged will be discharged any other individuals who ask to be discharged will be discharged any guardians or family members who ask to do so will be but one of the important things about all of a sudden it's an individual. DPW is not preventing those who want to go to community centers from going to the community. Kurecht your honor we would not stand in the way of that at all. So actually your position is I don't want to be simple but it's not complex. All you would be content with at this point although you would want more is if we remanded this back to the district court and say that it was an abusive discretion not to include you as an intervener a proper intervener since the settled in agreement affects the people who you represent and you had a right to be heard concerning the settlement because number one people you represent are automatically get my default going to make a choice which is impossible for them to make and secondly there's a divergence there's only so much money in the pot and the government can only spend so much for institutional care and so much for community care and you have a right to be heard as to to some extent as to that division. Is that the points that you're making? Your honor I agree with every bit of that but with one addition we are right we have a right to be heard on remand one of the issues on remand is going to be class certification. Well you could argue that if we revanted it back we were abandoned as to whether or not the class certification was apropos concerning what was before the court. I understand that your honor and that's correct all I was going to say was that we believe the record is already clear it's not going to change and so we would ask your honor to prime by it otherwise we'll be back here again. Mr. Solano couldn't we eliminate those steps and assume that you should have been properly included and evaluate whether or not the class was properly certified was settlement was fair and whether it meets all the other provisions rule 23 couldn't we do that based on the record in front of us. I believe you can you're on okay. Would we be in God when Daging here as an appellate court in fact finding which is not our province or our specialty on this record is your your friend across the aisle going to say that this is something which is quintessential work for the district court. Your honor let's take the two issues separately on class certification. I do not believe that you need to make any do to engage in any fact finding because the essential issues on class certification are cohesiveness issues having to do with whether the class definition or to a more of this most of those are questions of law. I don't think you need to do a lot of fact finding there and on the propriety of the settlement the fairness of the settlement we suggest your honor that the settlement provisions that have been agreed to particularly with respect to those individuals who have no guardians and don't know what don't understand what we're talking about is on its face presentively unfair and particularly in light of a judge judge Jones comments. Well, what should our decision be as to what the settlement the class should be and the settlement should be following from a proper description of the class including your people you represent. What would are the term what would you write if you were writing the opinion as to what the settlement should be. Your honor I think the first thing you need to do is to address whether this type of class could be certified and I think the answer is it could not if the class is. And I think you do away with the class action at that point. That's correct. It doesn't mean class certification. That's correct your honor. Structure so if we didn't that's a that's one option if we if we did not want to go that way then and we say that there is a class here you should be included what do we say as is the proper settlement that this court should it. Your honor the propriety of the class is tied to the remedy requested. So for example in Navy proper to form a class which requests at the state institute proper procedures and all the step plan procedures that will take into effect the desires of all of all residents whether institutional care or community care and have procedures in place to place them. I think your honor that if that is the set the class that is defined so it's not based on the relief requested discharge but instead it's released on it's based on the procedure. I think then your honor the settlement agreement would be put in place proper procedures. Your primary goal to get back into the class at least to have a seat at the table so that you can have input with respect to the protocols. My primary goal is to recognize that homestead requires individualized assessments and therefore they should not be a class action. Would you argue that in the district court if we remained it back to this court saying you were proper intervener they should hear from you and determine whether or not the class is properly constituted under the rule. Judge Collin we certainly could and would argue that to the district court if that is necessary. You say that we could do it here there's no additional facts we can do it right here now. That's our position Your Honor. Okay we got you have time on Rebellion so we'll get you back on your panel. Thank you thank you we have to hear from you. Good morning honor. May please the court my name's Robert Meek. I represent the plaintiffs of Pellies. I'm going to take eight minutes of our 15 minutes and Daris Lyshues counsel for the defendant of Pellies will use the remaining 15 minutes. That is satisfactory. Yes Your Honor let me get right to the point that Mr. Salana was striving and that is whether in fact his clients are class members. The district court found unequivocally they were not class members and in fact in this court before even after the settlement. Your Honor the settlement was actually the same as the proposed settlement. They found that they were improper class members even after the settlement. Yes because you didn't let them intervene and he found that they were not class members both of those things the district court found yes. Well well but by reason of the settlement that that that group of people are unquestedly going to be affected by the settlement. Your Honor I respectfully disagree that they're unequivocally going to be affected. First and foremost the annual reviews that Mr. Salano was so lathered up about happened all the time every year anyway. Second of all we're talking about some time in the future speculatively that his client might not have a guardian but that is easily remedied as Judge Staples said in the previous opinion that you merely have to create substitute guardians. Well and previous opinion dealt with the barracks of the case not not with the remedy that that's the constituted. The remedy that's been put in place here makes a default choice by a person who is incapable of making that choice many of whom are not represented as as the appellant as the appellant in this case is right. Right. Your Honor that was before the court before as well but in any and in fact the Mr. Salano argued that the concern they had would they would become words of the state because of the very they would become part of the default group and the court didn't pay any attention to that argument at that time and you have to shift this court. Wait you're saying people affected by a settlement in a class action matter have no say in whether or not they're affected or not. Mr. Salano was heard and his comments and argument in cross-examination of witness was certainly heard by the district court. Well then let me ask this he wasn't allowed to intervene as an intervener. Correct. It was heard but not as an intervener. Correct. What prejudice would occur to the plaintiffs of Halees if he had been heard as an intervener what prejudice would you have suffered? Prejudiced that he, Mr. Salano, as I told you he was going to do is going to de-certify the clients if you can. Well, if prejudice is that's a position he's taking. Well, if prejudice is my clients that he's going to come in if he gets in he de-certifies the clients and he's not a proper intervener because he has no interest at stake. Wait, that's not legal prejudice. That's what the resolution of the litigation is being on the court. Let me tell you what the real prejudice is, Judge. What prejudice would you suffer? Legal prejudice. Not that the court with his presence made the side it differently. But what prejudice would you have if he were heard in the district court? To what and is he being heard? To argue that it's not appropriate for some people to go into the community. That's already been decided by the district court and was the facts are there. Undisputed facts that everyone can be served in the community. As to the persons who are not represented by guardians I think Judge Swentay's or Judge Fisher mentioned that under the statutes the control of these matters 50 per burdens 44 17 through 20 and a regulation 55 PA code 6,000.1018 makes the facility director a guardian of those individuals. That facility director has the same power and authority as Mr. Solano has with regard to his sister. So they are not unprotected. They are interested are represented by a guardian. They're all represented by guardians. If they don't have a guardian the state is representing them. But then automatically there's a default as to what their choice is and these are people who are unable cognitively to make a choice. You're right. First of all the choice is not affirmative as the onestead says whether there's opposition or not opposition. First of all the justice departments put to that. They're unable to make opposition. Correct. So but the stays entitled to have a policy and the facts support that policy. That people who can't make a decision are guarding their guardian is the state the facility director under the statutory plan and that guardian can make the decision for them. And the problem is that Mr. Solano just doesn't like the policy. The policy is there. The stays in place have that policy and this record correctly interpreted by the district court in this court in the last appeal found that it's always appropriate to for any person with intellectual disability to study the community with appropriate supports and services. And that's the linchpin to it all. A purpose of course the services. Mr. Make seems to me that there's not really that much of a disagreement between the parties. There is but there isn't. Mr. Solano had a chance to speak here today. He had a chance to speak before the district court across examined witnesses. There's a dispute internally as to how some of the processes work. But isn't a real question here for us as an appellate court? Is to whether or not Mr. Solano and the people who he's representing have standing to come before us to argue the issues that have been decided by Judge Jones? Isn't that really the question? Sure that was well that would have been my first point having been able to make it Your Honor. Is that they don't have students because they're neither class members nor are they proper interveners. They're not class members because they currently oppose placement. And the procedures of the protocol don't really make doesn't really have an impact in creating them as class members. And we say that everything else we're talking about is irrelevant to the decision we have to make? Right well not necessarily irrelevant because if you in fact determine that they are proper parties before this court then we would have to proceed to the other issues regarding class certification and intervention whether they are proper whether the court ruled correctly to determine that they were not class members nor in the years. Do you have to favor transfer in order to be a class member? Do not have to favor you just not oppose that the language of Olmsted and the Justice Department supports that and is the body that is the entity which is given the authority to interpret the ADA title too which in which this case was brought. So if after this hearing Mr. Solano's client the people who represent the back and say we no longer oppose this plan. Do they become members of the class? Correct. That's all they need to do. That's correct but they don't want to do that you're on. What they want to do is get rid of the class and contrary to Mr. Solano's argument if the class is de-certified not only were my class members 200 and odd some of them which are the persons who are not opposed in the default group but also my name plaintiffs can't even prosecute it claim because Olmsted teaches that you can't bring individual cases in an Olmsted action because that would allow what's called key jumping and that they're the whole point of Olmsted was to require the states to have a comprehensive plan to deal with everybody and could jump and undermine that. Mr. McLean may ask you this and maybe you more clearly focus what you want to do for me. Isn't really the certification of this class and the settlement shifting the decision from the Department of Public Welfare to the federal courts. Isn't that really what's happening here? I don't think so, Yarn because the Department of Public Welfare is making all the decisions that need to be made. In fact that's why it's appropriate that the court founds it did and left a remedy to the experts that is the Department of Public Welfare. The Department of Public Welfare is making all the decisions. We're not asking the decision on appropriateness. We're not asking the court to make decision on opposition. I'm sorry, Yarn. I agree with you. I'm sorry. Recognize I was speaking over you but I was trying to get you to stop. But the DPW has a role because the court gave them a role. But and DPW has a role because they agreed in court to that role. But without this class certification it would go back to DPW would make a determination and as long as they're in compliance with all of the steps it would be their determinations that would be which would stand as to where the various patients reside and when and if there would be moves to the community. And that is exactly what we're asking this court simply affirm is that they can make those decisions under the statutory scheme that they can speak for people who cannot speak for themselves because they are the guardian. Okay, but that's the point. Because the default assumes individuals who cannot voice a preference are not opposed to moving. That's what the settlement says. How do you avoid the possibility that those who cannot voice a preference actually prefer to stay in ICF? Your Honor, I'll answer that with another question. How do you suppose that your Honor on the other side how can you presume that a person who can't speak for themselves then so does it want to leave? You don't want us to have the answer. No, I'm just just rhetorically. Why is there a presumption? Because that is the... I'm sorry. I asked you a question. I think it's rather simple. He's the answer. How do you want me to repeat it for him? Please, Your Honor. Because the default assumes individuals who cannot voice a preference are not opposed to moving. How do you avoid the possibility that those who cannot voice a preference such as the balance actually prefer to stay in ICF? Your Honor, you can't. You also can't cut it the other way either. You can't tell that they don't want to leave. So the problem is that's the guardian. Certainly. So by default they're making a choice which they've never made. Your Honor, they are represented by a guardian, the facility director who is making the choice for them. Justice Mr. Solano was making the choice for his sister. You have a procedure in place where it can be determined on an individual basis whether that resident should go to a community center should stay in an intermediate facility. As to whether it's appropriate, your Honor or whether they are opposed or not opposed. Either way, is there a procedure where it was an intelligent decision to be prepared to be in the half of that resident as to what's in that resident's best interest? Absolutely. Absolutely. That's part of the whole process that's undertaken by the department, not only in this case, but in every case that they make the determination that this person is appropriate and they believe that everyone is appropriate for service. Right. If the guardian is opposed, they're not going to do anything. Or the family members opposed, they're not going to do anything. And the planning process includes everyone. Correct. And as to the opposition, again, Your Honor, the decision making is left in the default group, Judge Cowan, is left to the facility, Dr. Gunder State long. That's who is the person who's supposed to make the decision. He was talking about the importance of an individualized assessment. There is the protocol. It does go through an individualized assessment. And if I may, the protocol goes to, although this is partially what Ms. Lysial speak about, the protocol goes has been underway for a year or so. And in fact, what happens is every individual person is in the interview with a person who is very familiar with them from the facility who's an expert in intellectual disability services. And they assess whether the person first can even understand what they're talking about. They're not a way to accommodate his interest without having to undo the entire class. His interests are being accommodated, Your Honor, because this does not affect him because he's still opposed to community services. So he's not affected. Are you saying that people have never made a choice and cannot make a choice or unaffected by this? No, Your Honor, I'm not saying that. I'm saying that. I'm saying that's just a lot of side-effect because he is making a choice. And he doesn't represent those people. People, if someone is there who is incapable of making a choice, they have no guardian. Even if the guardian asked them, there could be no choice. My default, they would automatically make a choice for ICF, correct? That's the state's policy, Your Honor. Let me ask you, I take it, there's so much money involved. You can only spend so much for institutional care and so much for community care. Why should these people who are going to be moved have some say at least at the district court level as to, you know, the state wanting to move everyone into community care and saying, well, you know, we want to stay in the state care. We don't want to be in the community. But they aren't given that opportunity. And Mr. Salano and his clients have used that opportunity to oppose. No, they're not giving that. My default are moved into community care. Only those who have no guardian or family members. And again, Your Honor, it's not a default, which it's not a term I would have used, but they're people who've been cared for by the state for years and years, who people who know them, people who understand them. And the people that are making the decision whether they should move into a community services are those very same people. Facility director is the operative entity, but he is supported by professional judgment of staff of those facilities that make those determinations. And the on-state court said the courts must prefer their professional judgment. But the court also, the spring court and all the on-state also said that they're going to defer to the state's availability of resources. Your Honor, I don't think, if you look at the Judge's table's decision in the last go-around, their interest in funding was not relevant as far as he was concerned. The fact that it might cost money, that's not an issue here. If the state spends money for institutional care, they're going to have less for people to stay in state care. Your Honor, not only is it an issue, it might be what this whole case is about. Your Honor, well, I respectfully disagree and I rely on Judge Stapleson's reasoned opinion in this case before that the appellans don't have any right for a particular amount of funds. They don't have a right to funds at all, but and that the state is entitled to use this money the way it wants to. It's their program. I'm sorry, Your Honor. Thank you very much. Thank you, Your Honor. Ms. Lyshe, following up where Mr. Meek left off. Why isn't the department that you represent perfectly capable working with the governor and the legislature to determine which funds will be used for hot patient care, which funds will be used for institutional care? Well, Judge Fisher, we did make that argument before the district court and unfortunately I'm not sure, for some very judgment district court rejected it and said that we had been in the field. No, we did not appeal it. We guided, let's say, by this court's decision in Frederick, L took the district court's decision too hard, saying that it did not have the plan that we had submitted to raise our fundamental alteration defense. Didn't have the specific benchmarks both with respect to the number of people in the time frame for moving people out of institutions and we didn't think frankly that we would have the basis on which to appeal other than say as the court to reconsider Frederick L. Well, but Mr. Solano with his clients are here today to say that the district court made a mistake in approving this settlement and asking us to send this back for the reasons that are stated, which would certainly give an opportunity to relitigate this whole question as to who's going to have a say in the future planning for deinstitutionalization? Well, I understand the question because in fact the department did have quite a great say in the negotiation of the settlement agreement and the plaintiff, the plaintiff didn't get everything that they wanted. The big thing that the plaintiff's got that was different from what the department had intended to, or did submit actually as part of its effectively working comprehensive plan to move people out of the state centers was that the department hadn't identified the number of people in the time frame within which people would move and also left it pretty much up to whether or not funding would be available and the district court said that that was unacceptable. And so basically what the settlement agreement does is put those modified what the department had submitted to put those benchmarks on that definiteness for lack of a better way of saying it into the plan. Now one of the things that I do want to bring to the court's attention just to avoid confusion, Mr. Solano and Mr. Hauffer do not represent the people who are unable to speak and have their guardians or family members. The people who they represent in fact have guardians or other family members actually I think at this point all of them are guardians. So they are not representing, for example, if the court were to remand back to the district court, they don't represent those people. And in fact, as Mr. Meek has already pointed out, who does represent those people by state law, both statute and the Department of Public Welfare Statement of Policy is the facility director at each one of the centers. So you think going back to my initial question to you, you think that the settlement as it is was agreed to provides DPW with an appropriate role moving forward. I absolutely do your honor and the reason that I do is because it leaves to the departments the discretion to plan for as is its role the people who are going to be moving out the state centers. You have 1200 people now in the state centers, you have five state centers. Let's suppose this process goes on for the next 10 to 15 years and you hopefully not. And you get down not just litigation. The process. It's not not the litigation. I'll be long gone by that. But 10, 15 years from now, end up with 200 people who are still in institutions from all over the state, from Erie to Delaware County. Who does? There was actually a test mode. Do you have enough flexibility to determine where you put them? Well, certainly. And I think part of the problem here is it's not the plaintiffs that are trying to remove that flexibility from the department. It's the it's the appellance because what the appellance are trying to assert and the department believes incorrectly as a matter of law is that they have a right to institutional placement. They have a right to institutional care under on state. And in fact, on the state, just as Ginsburg in on the state said exactly the opposite when in a footnote when she was responding to the dissent said, we're not establishing any requirement on the part of the state that the state has to provide any level here. The position was they had a right to be heard. And as to what the settlement should be, you're you're putting words in their mouth. No, actually, sorry, Judge Cowan, the reason that they're saying that they have a right to be heard is because they're claiming that they have a right to to stay in the institution. That is what they're claiming. And that is the basis of what they're claiming. And their position now is that might be so, but their position in litigation is they had a right to be heard to show that the class was improperly constituted after the settlement is not appropriate. But what it should be or should be is a marriage determination. Their position is they had a right to be heard as to what the class was and they were never given that opportunity. And the only way that the court can accept that position is that if the court does what the district court properly was unwilling to do, which is to override or ignore the states, the policy decision, the judgment exercised by the state's professionals and the state's policy makers, that it is in fact the case that every person with an intellectual disability can be served in the community with appropriate supports and services. But that is in fact the long standing. Just to take your statement, are all community-based centers equipped to handle any resident from the state care or will there be a specific community? Are they, if they move everyone out of the state here are the community services sufficient to handle all those people? One of the things that I did want to talk about during the course of my presentation was the process whereby services and programs will be developed for the people who are in the state centers because although that process I believe informs the district court's decision, he didn't talk about it in the opinion. It's meticulous painstaking process that brings together everybody who will be involved, including parents, guardians, and bulk family member, anybody else who the resident says, the people from the county where the person is going to be going, potential providers possibly, they come together, they sit down, of course the people at the facility as well as the people that the person is going to be going to in the community, they sit down and they say, what will Darius need? Okay, and then they say, Darius needs x, y, and z, she's going to need 24 hour care, she's going to need nursing services, she's going to need a billetation, she needs a day program, etc. Okay, do we have that in the community? No, you know what, we don't have that in your county. So we're going to have to develop that in your county. So it looks like it's going to take a little longer than usual to get Darius out of the center, but we are going to get her out and she is going to have the appropriate services once you get set. And until those services, what happens if Darius makes a very fairly clear state that I don't want to go to a community she doesn't go either herself or through a guardian. She doesn't go. How about if Darius is severely impaired and can't verbalize? In that situation, you're on what we are saying, is pursuant to the policy that is frankly supported, if not directed by federal law, as well as the literature in the community. That person, the option for that person is to stay institutionalized, right? Not realize the hope that the ADA brought to disabled people or to give it a shot in the community. And what the department is saying and has said for the last 20 to 30 years is that people deserve a shot in the community and we are going to do what we need to do to give them that shot. Who is we? The Department of Public Welfare. Sorry. How about if the guardian says no? If the guardian says no, Olmstead made clear that people who oppose moving to the community don't have to go. Okay? So clearly the department is going to honor that choice. And if the person cannot make a choice cognitively, they're unable to make the choice. Yes. They automatically make a choice by default. Because... No, what I said is that... Let me say it this way. What I meant to say is in that situation, the facility director on their state statute and Department of Public Welfare statements of policy interpreting that statute steps in as the guardian. Not just with respect to whether or not a person moves into the community, but for every healthcare decision, where every decision, frankly, that's made on behalf of that person. And Judge Fisher, can I go back and answer your question? Yes, Mr. Meagabat. What's the big difference here? Okay. The difference is... And this is what I said, that the only way the court can accept Mr. Solano and the Appellants' argument is if they just disregard the longstanding policy of the department. And the reason is the the class is defined to say or to be people who live in the state centers, who can live in the community with appropriate sports and services and who don't oppose discharge. Okay. Mr. Solano's point, not that I intend to speak for him, but my understanding on Mr. Solano's point is that you can't make a decision about whether or not somebody can live in the community unless you're doing an individualized determination of whether or not somebody can live in the community. And that defeats copesiveness and therefore you can have a class. The department's position is everybody can live in the community so that the assessment of what services and supports are needed happens after the decision is made that they go into the community not before to make the decision about whether or not they go into the community. So the same process will happen, but legally there's a huge difference because the you acknowledge right now there are facilities in the community to take care of. But the department is willing, I'm so sorry, I am so sorry to acknowledge as I think the the briefing that there are not facilities in the community to take care of these severely disabled people. No, no, no, no, no, what I meant was there are there might in fact currently be for one person or another who is currently at a state center not a vacancy in the community such that the the department would have to develop in conjunction with the county and providers a new program by a new house set it up staff it, et cetera, et cetera. It is absolutely the case and there was a lot of testimony at the fair hearing to this effect that it is absolutely true and I think that a balance and a lot of the objectives really don't realize this but it is absolutely the case that every single person who is served in the state center has a counterpart in the community and we have a whole variety of services available to people to support them in the community so that it is not true as I think the opponents argued in their brief that somebody who needs 24 hour supervised care cannot live in the community that is just not true because there are a lot of people in the community who have 24 hour care. How much money is the state going to allocate percentage wide to state care and the community care? No, sorry, I don't know the answer to that question. There will be a sub just about everything will though be allocated majority, overwhelming majority to community care. I believe it already is. I mean we spend over a billion dollars on community care. And how much they spend on state care? I would be guessing I really don't know actually. A percentage of that how much percentage wide? Well if you think it costs, I'm going to give you numbers that I do know it costs about $250,000 a year to serve somebody in a state center and there are approximately 1100 people in the state center. And how much will it cost us to to care for that person in the community care? It depends on the person. Some people can cope. Most of the people at the state centers are going to require a lot of care. Okay, so when the the less expense that it would be in state care? Yeah, well it would ultimately be less expensive, but one of the arguments that the department made in the district court in response or at summary judgment was that there is a transition period when in fact it costs more money because you have to fund both the state centers as well as the community care. And the department doesn't really start to realize any savings until enough people leave that it results in a unit closing or possibly a facility closing and speaking of closures. We're going to have to get moving. Would you finish at that point please? This settlement agreement does absolutely not speak to, does not contemplate the idea of closures. And there was testimony at the fair hearing that the department has no intent. The Commonwealth has no intent. It's currently to close facilities. Can anybody speak to what's going to happen five or ten years from now? No, but it's not going to be because of this settlement agreement. Thank you, Ms. Lynch. Thank you very much. Mr. Salano. Your Honours, let me try to speak to three issues. Individual of determinations, the policy questions of the judge Fisher raised and are standing. The individual determinations, I just want to be clear because there's been a lot of positions shifting around. The way this settlement works is, the department has already determined that everyone is eligible to move to the community. But, they're professionals and all the states say you look to the professionals, have written into many of these individuals ISPs statements that those individuals are not. Is there something to suggest that they are not going to do that? Do what, Your Honour? Defer to the ISPs? No, no, that they're going to consult with professionals to determine whether a transfer or move to the community centers is appropriate. What they're going to do judge Frente's is, as Ms. Lynch said, rather than make the determination whether it is appropriate, they've already made that determination. They're going to try to find an appropriate facility in which to place them in the community. But, they've already decided, that's what they want to put. Well, they certainly have done that for those who express the desire to go to a community center. Your Honour, they have done that for a great many people, many of whom are not as severely disabled, both medically and mentally as this population. And so, as Judge Collin points out, the cost of doing this for this population is going to be so high that one of the things we question is its feasibility, given the current economic climate. They say we're going to do it. But, the feasibility of that is really open to questions. So, in terms of individualized what they're doing, they're not making an individualized determinist determination whether they should move. They've already turned that for everybody. They're going to move everyone. They're going to move everyone to try to find an appropriate facility. As far as individualized choice, if somebody is incapable of making the choice and they don't have a guardian or family member, they go on the list. If somebody has a guardian or family member who objects, they don't go on the list until such time as that guardian or family member becomes unavailable at which time they do go on the list. So, if I die and I don't leave an appropriate substitute, Diane goes on the list. If I'm unavailable and it sounds draconian, but there's actually testimony saying this is the way this works. So, there's not a whole lot of choice there. What they're saying in effect is that these people are too disabled to have a right to choose and therefore we're just going to put them on the list and move them. If we want to have individual choice, this courts decision a few months ago in a public health case about appointing guardians at a item and having guardians make individual determinations about how susceptible these people are to change has something to be done. I have a little concern, Mr. Slano, about what I understand you would like to happen, which is to stop everything. You want to go back into the district or to undo this class, but everything to a halt and start all over again. But there would be no class. And I'm wondering about all the people who would be affected by that decision. Could you talk to me about why as a practical matter, as a policy matter, this makes good sense? As a policy matter, Your Honor, what makes sense is to have everybody individually determined. One of the things that we do not oppose is creation of an appropriate protocol so that those people who choose to move will be able to do so. What we do oppose is putting everybody on the list and saying they automatically have to choose. So a protocol can be in place. The idea of individual assessment to you is inconsistent with a class format. Yes, Your Honor. I mean because I think everything if you're going to say the relief is that they have to be relocated, that requires an individualized determination as to whether it's appropriate and whether they want that to happen. It's not appropriate for everyone Your Honor because we have testimony here about how many of these people have lived here for four decades. This is their home, this is their community. They call the staff mommy. These people, some of them are just not susceptible to change. We have testimony. One of the objection letters about how they move through to a different building and the person who stopped eating. These are very serious decisions that you have to take an individualized look at. And that brings me to policy. Judge Fisher, nothing stopped DPW. Over all of these years, from deciding that a particular individual would do better in the community and we ought to move them there. And if somebody didn't agree with that, somebody could file a suit and we'd be here under rules of administrative discretion and all of that sort of stuff, but it would be DPW. What happened here though is instead they subjected themselves to a court order so that now it's not a matter they're saying, well, you know, the court is making us do it. And so now as a result, the legislature has got to fund this. Not the way the legislature and the policy makers decide it, but the way the court order has done. We suggest, suggest your honor that that makes no sense. Senator White talked about this something at the hearing about the budget problems that the state is facing and how just just makes no sense from a policy matter. And finally, your honor, I suggest that we do have standing because the settlement affects us directly and because the settlement is defined as should be the class as defined as those who do not oppose or would not oppose, we're all willing to agree that we may at some point not oppose if this is done right, but the terms of the settlement we object to. Thank you, Your Honor. One point question. Yes, Your Honor. If we were to remain in the district court and would it order that you will properly intervene at that level, what if these such a fatal complete that you get the automatically the same results? I mean, you know, district judges have been swayed. I mean, I've reversed myself a number of times based on on information which I would not consider or or properly considered. So do you think it's a futile gesture not to the side that the matter here rather than dissed? Judge Collin, I would never suggest that Judge Jones would not listen to what this court has to say and decide appropriately. Of course, he would. Your Honor, I suggest you simply that it was unnecessary because I think the record is already clear as to how it ought to be decided, but we certainly are not suggesting that Judge Collin would not do the right thing for which we're appropriate. I think, you know, but I think in terms of Feta-Complete, I thought it was telling that one of Mr. Meeks' responses to Your Honor's question about where is the prejudice, is he said, well, if you let them in, the class is going to get decertified. I think it pretty much shows that there's really not a whole lot of basis to support this class. Thank you, Your Honor