Voss v. Rolland

• Decision Date: 19 January 2010
• Docket Number: No. 08-1874.,08-1874.
• Citation: 592 F.3d 242
• Parties: Eric VOSS, Laura Thibault, Frederick Carter, Christopher Paleo, Angel Agosta, Kimberly Lawrence, Kelley Schnair, Robert Buckman, Nicole Keating, Musa Nurislam, Cheryl Courtney, Lennie LeBlanc, Laura Putterman, Pedro Cavallaro, David Braga, Amanda Watts, Erin Poulin, Sheri Belville, Alissa Cormier, Belen Garcia-Simmons, Jesse Stewart, Mark Chapman, Uchenna Obi, Stefanie Petrie, Linda Klaiber, Jeannette McGinnis, Laura Prouty, Jillian Hume, Andre Amato, Sharia Pitts, Peter Liddy, Joshua Greaney, Homer Swain, Andrew Patterson, Patrick Sheehan, Andrew Chan, Dylan Keene, Abraham Carro, William Campbell, Polo Dejesus, Emily Sam, Zachary Foster, Wendell Roque, Plaintiffs, Appellants, v. Loretta ROLLAND, Margaret Pinette, Terry Newton, Bruce Ames, Frederick Cooper, Leslie Francis, Timothy Raymond, Arc Massachusetts, and Stavros Center For Independent Living, Plaintiffs, Appellees, v. Deval Patrick, Jay Gonzalez, Judyann Bigby, Bruce M. Bullen, Elin M. Howe, Charles Carr, John Auerbach, and Teresa O'Hare, in their official capacities,<SMALL><SUP>*</SUP></SMALL> Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

592 F.3d 242

Eric VOSS, Laura Thibault, Frederick Carter, Christopher Paleo, Angel Agosta, Kimberly Lawrence, Kelley Schnair, Robert Buckman, Nicole Keating, Musa Nurislam, Cheryl Courtney, Lennie LeBlanc, Laura Putterman, Pedro Cavallaro, David Braga, Amanda Watts, Erin Poulin, Sheri Belville, Alissa Cormier, Belen Garcia-Simmons, Jesse Stewart, Mark Chapman, Uchenna Obi, Stefanie Petrie, Linda Klaiber, Jeannette McGinnis, Laura Prouty, Jillian Hume, Andre Amato, Sharia Pitts, Peter Liddy, Joshua Greaney, Homer Swain, Andrew Patterson, Patrick Sheehan, Andrew

Chan, Dylan Keene, Abraham Carro, William Campbell, Polo Dejesus, Emily Sam, Zachary Foster, Wendell Roque, Plaintiffs, Appellants, v. Loretta ROLLAND, Margaret Pinette, Terry Newton, Bruce Ames, Frederick Cooper, Leslie Francis, Timothy Raymond, Arc Massachusetts, and Stavros Center For Independent Living, Plaintiffs, Appellees, v. Deval Patrick, Jay Gonzalez, Judyann Bigby, Bruce M. Bullen, Elin M. Howe, Charles Carr, John Auerbach, and Teresa O'Hare, in their official capacities,^* Defendants, Appellees.

No. 08-1874.

United States Court of Appeals, First Circuit.

Heard November 4, 2009.

Decided January 19, 2010.

Stephen M. Sheehy with whom Anthony S. Fiotto, Jr., Michelle R. Gonnam, Christiaan H. Highsmith, and Goodwin Proctor, LLP were on brief for plaintiffs-appellants.

Steven J. Schwartz with whom Cathy E. Costanzo, Center for Public Representation, Jeffrey S. Follett, Catherine H. Wicker, Foley Hoag LLP, Frank J. Laski, Mental Health Legal Advisors Committee, Matthew Engel, and Disability Law Center were on brief for plaintiffs-appellees.

Kenneth W. Salinger, Assistant Attorney General, with whom Martha Coakley, Attorney General, was on brief for defendants-appellees.

Before LYNCH, Chief Judge, SELYA and STAHL, Circuit Judges.

LYNCH, Chief Judge.

This appeal by a small number of the plaintiff class challenges the 2008 approval of an amended settlement agreement between the remaining plaintiff class members and the state in a longstanding class action. See Rolland v. Patrick (Rolland XI), 562 F.Supp.2d 176 (D.Mass.2008). The original suit, brought in 1998 by developmentally disabled nursing home residents on behalf of over 1000 class members, alleged that Massachusetts did not provide appropriate treatments in appropriate settings to them as federal law required. Here, 43 class members at one nursing facility object to the 2008 amended settlement under which many class members will be transitioned to community placements. They fear it will lead to them being forced out of their particular nursing facility, where they prefer to stay.

The 2008 settlement resulted from the state's inability to comply fully with an earlier settlement, reached in 2000. Under the 2000 settlement, the state successfully moved many class members to the community but failed to provide specialized services, including "active treatment," to those remaining in nursing homes. See Rolland v. Cellucci (Rolland IV), 138 F.Supp.2d 110, 120 (D.Mass.2001). The parties negotiated the amended settlement in 2008 to lessen the state's active treatment obligations and, instead, move most class members remaining in nursing homes to the community.

The appealing Groton parents,¹ who are parents and guardians, challenged the amended settlement in May 2008 on behalf of residents of the Seven Hills Pediatric Center (Seven Hills) in Groton, Massachusetts. They say their children and wards are more severely disabled than the rest of the plaintiff class and would not benefit from leaving Seven Hills. They objected that the amended settlement was unfair and sought decertification of the plaintiff class, which the district court had certified in 1999.

The district court found that the amended settlement was fair, reasonable, and adequate ("fairness"), Rolland XI, 562 F.Supp.2d at 178, and denied the motion to decertify, Rolland v. Patrick (Rolland XII), No. 98-30208-KPN, 2008 WL 4104488 (D.Mass. Aug. 19, 2008) (order denying motion to decertify).² The court entered Rule 54(b) judgment on the Groton parents' objections to the settlement's fairness. Rolland v. Patrick (Rolland XIII), No. 98-3028-KPN (D.Mass. Nov. 20, 2009).

On appeal the Groton parents untimely attack the 1999 class certification order. More significantly, they challenge the approval of the settlement, objecting that it does not adequately protect class members who should not be transferred from their nursing homes to the community. We affirm.

I.

We review for abuse of discretion the district court's two decisions: whether to certify or decertify the class and whether to approve the amended settlement. Garcia-Rubiera v. Calderon, 570 F.3d 443, 460 (1st Cir.2009); McKenna v. First Horizon Home Loan Corp., 475 F.3d 418, 422 (1st Cir.2007); City P'ship Co. v. Atl. Acquisition Ltd. P'ship, 100 F.3d 1041, 1043 (1st Cir.1996). We review underlying legal issues de novo. McKenna, 475 F.3d at 422.

The parties litigated and settled this case against the backdrop of a series of federal statutes³ designed to move disabled individuals from institutions and integrate them into society. The class plaintiffs sued under three statutes that were passed as part of this "deinstitutionalization" or "integration" movement⁴: Medicaid, the Nursing Home Reform Amendments (NHRA), and the Americans with Disabilities Act (ADA).

Although Medicaid⁵ originally funded mostly institutional services for disabled individuals,⁶ Congress added optional programs that encouraged states to provide community-based Medicaid services to disabled individuals. See, e.g., Bryson v. Shumway, 308 F.3d 79, 82 (1st Cir.2002). Massachusetts participates in several community programs.

In 1987 Congress amended Medicaid by enacting the NHRA. It had found that many states were reducing crowding at state institutions by transferring mentally disabled people to geriatric nursing facilities, which were poorly equipped to care for them. H.R.Rep. No. 100-391(I), at 459 (1987), as reprinted in 1987 U.S.C.C.A.N. 2313-1, 2313-279. The NHRA limits states to using Medicare funding for nursing home residents found, through a screening process, to need the level of care nursing homes provide. See 42 U.S.C. § 1396r(e)(7)(D)(ii).

That screening process is called a Preadmission Screening and Annual Resident Review (PASARR), and it requires states to assess whether "mentally retarded"⁷ individuals (1) need the level of care nursing homes provide and (2) require specialized services. Id. § 1396r(e)(7)(B)(ii). States had to review all mentally retarded nursing home residents when the NHRA was enacted and still must review new admissions and residents whose conditions change significantly.⁸ Id. § 1396r(e)(7)(B)(ii)-(iii). Generally nursing homes may not admit or must discharge anyone found not to need their services. See id. §§ 1396r(b)(3)(F)(ii), (e)(7)(C)-(D).

Title II of the ADA prohibits public entities from excluding disabled individuals from entities' "services, programs, or activities." 42 U.S.C. § 12132. This "integration mandate" requires states to place people in the "most integrated setting appropriate," 28 C.F.R. § 35.130(d), often the community. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 597-602, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999).

II.

A. Historical Context

To provide context for the 2008 settlement, we briefly review the history of the litigation. Greater detail may be found in the district court's opinions.

The original suit, brought under 42 U.S.C. § 1983 and Title II of the ADA, claimed Massachusetts was violating the ADA, several Medicaid provisions, and the NHRA by illegally limiting access to community programs and ignoring PASARR findings. Consequently, the state was allegedly confining many individuals to nursing homes who belonged in community placements and not providing them with specialized services while in nursing homes. The district court certified the plaintiff class in 1999. Rolland v. Cellucci (Rolland II), No. 98-30208-KPN, 1999 WL 34815562, at *1-2 (D.Mass. Feb. 2, 1999) (order certifying class).⁹

In 2000, the court approved a settlement between the parties. Rolland v. Cellucci (Rolland III), 191 F.R.D. 3, 15-16 (D.Mass.2000). In the 2000 settlement the state agreed to place many class members in appropriate placements, divert people who would have been admitted to nursing homes to community placements, and provide class members with specialized services. Id. at 7. The state was not required to provide community placements to objecting class members. Id.

Over the next several years, the state satisfied its community-placement and diversion obligations, see Rolland v. Patrick (Rolland VIII), No. 98-30208-KPN, 2007 WL 184626, at *1 (D.Mass. Jan. 16, 2007) (order denying noncompliance motion). It placed about 1,000 class members in the community. But as all parties acknowledge, it largely failed to provide specialized services to about 800 class members who remained in nursing homes.

The district court held, and this court affirmed, that the 2000 agreement's specialized-services provisions required the state to provide "active treatment" to nursing home residents. Rolland v. Romney (Rolland VI), 318 F.3d 42, 57-58 (1st Cir.2003); Rolland IV, 138 F.Supp.2d at 115-16; Rolland v. Cellucci (Rolland V), 198 F.Supp.2d 25, 28-35, 46 (D.Mass.2002). Designed to cultivate independence in the developmentally disabled, "active treatment" is the federal standard of care for residents in Intermediate Care Facilities for Persons with Mental Retardation (ICF/MRs). See 42 C.F.R. § 483.440(a)(1). In 2007, the court and the parties agreed on a rigorous standard for active treatment based on federal ICF/MR regulations. See Rolland v. Patrick (Rolland X), No. 98-30208-KPN (D.Mass. Aug. 2, 2007) (order adopting revised active treatment standards); Rolland v. Patrick (Rolland IX), 483 F.Supp.2d 107, 117-18 (D.Mass.2007).

The court also ordered the state to...