Polk-White Haven case has class-action status; preliminary injunctions denied

Plaintiffs in their lawsuit against the state to stave off closure of both Polk and White Haven state centers saw one motion granted and another denied this week by a magistrate judge for the Middle District of Pennsylvania.

Judge Martin C. Carlson granted class-action lawsuit status to the plaintiffs, which means more residents and their families have the option to join the lawsuit against the state.

Although Carlson denied plaintiffs’ motions for preliminary injunctions, he regards the state’s Nov. 30. deadline for completing transfer of the centers’ residents as “not feasible.”

Class-action status

In his approval of motion for class-action status, Carlson ordered both the plaintiffs and defendants to consult and confer, and then provide the court with a joint proposal for identification and notification of potential class-action members on or before Nov. 18.

According to Carlson’s order, the class consists of:

All current and future residents of both centers who are not on the “Planning List” and who do not want to be placed in a “community” setting or in another intermediate care facility, because they believe their current placement at either Polk or White Haven is the “least restrictive” environment available “that can meet all their needs.”

In his memorandum of granting class-action status and denial of injunctions, Carlson wrote:

Kevin Dressler, director of the Bureau of State Operated Facilities for the Office of Developmental Programs, testified 77 individuals had been identified as members of this putative class.

According to the memorandum, the parties’ prehearing submissions, though, had listed varying, but “numerically significant,” estimates of the number of putative class plaintiffs in this case — plaintiffs’ counsel estimated the number as between 80 and 100 individuals; the defendants’ pre-hearing memorandum contained “a more modest,” but still significant,” estimate of about 50 putative plaintiffs.

Carlson declined the state’s “invitation” to draw “adverse inference from the failure of individuals to join the lawsuit earlier because the court believes “these putative class members could have reasonably elected to await a class certification ruling from the court before choosing this course.”

Preliminary injunctions

In his denial of motions for preliminary injunctions, Carlson said the rejection is “specifically premised, in part” upon his determination that the state’s “proposed” Nov. 30 deadline for completing transfer of the centers’ residents “simply is not feasible if the Commonwealth conducts the collaborative, inter-disciplinary process which it has committed to undertake for each resident in its care.”

Accordingly, Carlson’s order says, all planning moving forward “must operate on the assumption which was acknowledged by Commonwealth counsel that an additional 60 to 90 days will be necessary to fully engage in this interactive process.”

“Given this concession,” Carlson ordered the state to provide, to both the court and plaintiffs, a revised projected transfer completion date, “consistent with the concessions made at the preliminary injunction hearing,” by Nov. 18.

In his memorandum of granting class-action status and denial of injunctions, Carlson wrote:

“While we feel great sympathy for the sincerely held concerns voiced by the plaintiffs, we are constrained to conclude that they have not shown a reasonable probability of success on the merits of their claim that they are entitled as a matter of law to enjoin the closure of the Polk and White Haven Center, or prohibit the transfer of the residents at Polk Center and White Haven Center to other, comparable state operated ICFs.”

The “truly unprecedented” relief being sought, the memorandum, said, would require the court to contravene and set aside a state statute that “specifically authorizes the transfer of patients between state facilities.”

Further, the memorandum said, the court believes the plaintiffs’ claims “stem from a factual misunderstanding regarding the state’s proposed course of action, as well as a fundamental misunderstanding of the seminal Olmstead decision.”

It was on June 22, 1999, according to the U.S. Department of Justice Civil Rights Division, that the U.S. Supreme Court ruled in Olmstead v. L.C. that unjustified segregation of persons with disabilities constitutes discrimination in violation of Title II of the Americans with Disabilities Act.

Carlson, in his memorandum, said, “Olmstead simply does not give any individual the right to dictate where they would receive this care or require the state to maintain the facility of their choice in the face of other comparable, available options.”

Case management

On or before Nov. 28, Carlson ruled, both sides will consult and confer, and then provide the court with a joint proposed case management plan that allows for the “full merits disposition of this longstanding case on an expedited basis.”

Ideally, Carlson ordered, the case management plan should provide for a trial date within the extended timetable for completion of the transfer process that the state is ordered to provide to the parties and the court.


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