Jennings v. Wolf

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RUSSEL “JOEY” JENNINGS, : Civil No. 3:20-CV-148

by and through his parents/guardians, :

Richard and Susan Jennings, et al., :

:

Plaintiffs, :

:

v. : (Magistrate Judge Carlson)

:

TOM WOLF, et al., :

:

Defendants. :

MEMORANDUM OPINION

I. Introduction

This case, which comes before us for consideration of a motion for class

certification and two motions for preliminary injunction, (Docs. 19, 81, 125), stands

at the confluence of profound cross currents in the law, science, medicine, and public

policy relating to the care and treatment of the severely intellectually disabled. This

lawsuit also entails a profound and profoundly moving human component as care-

givers, state officials, family, and loved ones strive to provide these disabled

individuals with lives that are safe, fulfilling, and marked by dignity and decency.

Finally, in its current posture this case presents a series of intractable challenges for

all, challenges thrust upon the parties by the imperfect nature of the available

alternatives.

This is a putative class action brought by the named plaintiffs on behalf of

themselves and others similarly situated against Governor Tom Wolf and other

Commonwealth of Pennsylvania officials and agencies. This action was brought on

behalf of the named plaintiffs, who are individuals with profound and severe

intellectual disabilities residing in state-run residential facilities in the

Commonwealth, by their guardians or decisionmakers. The complaint alleges that

the defendants have violated and continue to violate the plaintiffs’ and other putative

class members’ civil rights, in that the Commonwealth is closing two of these

residential facilities—Polk Center and White Haven Center—and transferring the

residents to other facilities in the Commonwealth without their consent.

The parties in this case consented to magistrate judge jurisdiction, and the case

was assigned to the undersigned on September 20, 2022. (Doc. 135). At that time,

despite the diligent efforts of the court, the parties, and counsel, a number of time-

sensitive and significant issues remained to be resolved. These pending questions

included a motion to certify the plaintiff class as well as two motions seeking

preliminary injunctive relief. (Docs. 19, 81, 125). By the time that the parties

consented to magistrate judge jurisdiction, there was an immediate exigency to these

issues since state’s announced deadline for closure of the White Haven Center and

Polk Center was November 30, 2022.

Mindful of this deadline, we set exacting benchmarks for the parties to ensure

a timely, but thoughtful, consideration of these important and exigent issues. Thus,

we immediately scheduled a conference with counsel to set a pathway and timetable

for expedited resolution of these motions. (Doc. 139). We then entered a series of

orders directing an expedited hearing in this case. (Docs. 141, 143). As part of this

expedited process, we instructed the parties to agree upon a hearing schedule by

October 7, and submit pre-hearing memoranda no later than October 14, 2022. (Id.)

Further, while we were undertaking this expedited review, we directed the

Commonwealth to refrain from transferring any putative class members from Polk

Center or White Haven Center. (Doc. 140).

Counsel responded to our instructions with commendable skill and alacrity,

enabling us to commence a hearing on all pending motions on October 18, 2022. At

this hearing we endeavored to provide all parties with a full and fair opportunity to

present evidence relating to the questions of class certification and injunctive relief,

taking testimony from twenty lay and expert witnesses. We also received and

considered numerous exhibits tendered by the parties. (Docs. 150-57). This hearing

concluded on October 28, 2022. Accordingly, these motions, which were previously

briefed by the parties, are now ripe for resolution.

For the reasons set forth below, the motion for class certification will be

granted, but the motions for preliminary injunction will be denied.

II. Statement of Facts and of the Case1

In this case we are presented with a dispute between two sets of sincere and

sincerely well-meaning parties,2 who have diametrically opposed views regarding

the proper future course for some 158 severely intellectually disabled residents

housed at two state intermediate care facilities (“ICFs”), Polk Center and White

Haven Center. While the litigants profoundly disagree on how best to meet the needs

of this population, we find that the evidence shows that both the state officials who

care for these individuals, and the family members who deeply care about their loved

ones, share a common interest in doing what is best; they simply have deep

disagreements regarding what is the best path forward for those that are in their care.

These disagreements, in turn, are cast against the backdrop of difficult decisions

1 This statement of facts is derived from the parties’ pleadings and the evidence

presented at the combined preliminary injunction and class certification hearing

conducted by the court between October 18 and October 28, 2022. This narrative

represents the Court’s findings of fact in this case.

2 On this score, we find that all parties in this case are sincere and acting in good faith

pursuing what they believe to be the best and true course for the residents of Polk

Center and White Haven Center. We make this finding because the plaintiffs’

counsel in closing arguments on the pending motions suggested that the state actions

were driven by some malign political influences. We reject this suggestion. Instead,

we find that the state officials charged with these difficult ICF placement decisions,

like the plaintiffs’ families, are striving to find the best path forward for those in

their care as they confront some stark demographic and budgetary realities.

thrust upon both the state officials and the families of these disabled ICF residents

by factors beyond their control, including the shrinking demographics of this

population. These demographic changes in the state ICF resident population force

difficult choices upon all and these choices are made all the more challenging due to

the fact that there are no simple or universally acceptable options available to the

parties. Thus, the parties and the Court are presented with a dispute that justifiably

invokes profound emotional concerns but admits of no easy answers.

A. Historical Background3

This litigation is emblematic of a longer, longstanding national conversation

regarding the proper role of the state in caring for the most vulnerable in our society,

the developmentally disabled. Over time, our understanding of the state’s role in

caring for the intellectually disabled and our perceptions of how best to fulfill this

mandate of care have dramatically changed and evolved.

One dark aspect of the Age of Enlightenment, the 17th and 18th century

intellectual movement that formed the philosophical underpinning of this nation,

was this movement’s unenlightened and discriminatory attitude toward the

intellectually disabled. As one scholar has noted:

3 Our understanding of the historic context of these policies has been greatly

informed by the decision in Martin v. Taft, 222 F. Supp. 2d 940, 965 (S.D. Ohio

2002), and we gratefully acknowledge the insights provided by the court in Martin.

The history of discriminatory treatment towards the mentally disabled

has deep roots. John Locke wanted full citizenship to be denied them

[asserting that the intellectually disabled] are not born into the “full

state of Equality” because they rely on others to “seek and procure their

good for them.” According to John Stuart Mill, the principle of freedom

from interference does not apply to those “still in a state to require being

taken care of by others.” For these people, according to Mill, despotism

was a legitimate form of government.

Forward to Fundamental Alteration: Addressing ADA Title II Integration Lawsuits

After Olmstead v. L.C., 24 Harv. J.L. & Pub. Pol'y 695, 706 (2001). Thus, prior to

the mid-1800s “the care of mentally disabled individuals was left to families, jails,

poorhouses, and ad hoc community arrangements.” Id. However, by the 1850’s there

was a growing awareness of the need for the state to play some active role in

protecting the health, safety, and well-being of those with intellectual disabilities.

Thus, in 1848, Massachusetts established the first public facility for persons with

intellectual disabilities. “Don't Tread on the ADA”: Olmstead v. L.C. Ex Rel.

Zimring and the Future of Community Integration for Individuals with Mental

Disabilities, 40 B.C. L. Rev. 1221, 1224 (1999).

While the model for this form of care for the intellectually challenged was

initially educationally based with states providing short-term training for young

people to enable them to return to the community, id., “[b]y the end of the nineteenth

century, however, the school model was being abandoned in favor of asylums

providing long-term care, as medical professionals and academics of the time

advocated the need to protect society.” Martin, 222 F. Supp. 2d at 965. This

institutional model, which focused upon the need to confine and isolate those with

disabilities rather than provide them with compassionate care and treatment fostered

its own series of abuses; persons with differing degrees of impairment were often

essentially warehoused in facilities whose primary purpose was to detain rather than

treat their residents. Moreover, these commitment decisions were often made with

little regard for the myriad levels of disability presented by these individuals. Thus,

slight consideration was given to the notion that many developmentally disabled

persons could live lives of dignity and independence outside an institutional setting.

Ultimately these abuses led to efforts to supplant the large institutional model with

community care options. This reform movement began in earnest in the mid-1950s

and has continued in force in the 1960s and 1970s through to this day. Forward to

Fundamental Alteration: Addressing ADA Title II Integration Lawsuits After

Olmstead v. L.C., 24 Harv. J.L. & Pub. Pol'y 695, 707 (2001). Since the 1960s,

approximately 1.5 million people have been released from institutional to

community settings. Id.

Moreover, as discussed below, this social movement has become enshrined in

decisional case law, which recognizes a right for the intellectually disabled to reside

in the least restrictive setting consistent with their medically determined needs.

B. The Shifting Demographics of Pennsylvania’s Intellectually

Disabled Population: Challenges and Choices.

Pennsylvania’s experience caring for the intellectually disabled population

housed in state facilities has paralleled these national trends. In fact, several

witnesses testified about this trend both in Pennsylvania and across the country to

deinstitutionalize the intellectually disabled. “The policy of deinstitutionalization

was based on the proposition that quality of life (QoL) of individuals with

intellectual disabilities (ID) will improve as a result of being moved from institutions

to community-based care settings.”4 The decreasing number of institutionalized

intellectually disabled individuals in Pennsylvania is reflected by the declining

census in state operated ICFs and the small fraction of state operated ICFs that

remain open today.

Thus, Kristin Ahrens, Deputy Secretary for the Office of Developmental

Programs (“ODP”) for the Pennsylvania Department of Human Services (“DHS”)

testified that presently approximately 57,000 Pennsylvania residents are eligible for

ICF level care. The largest population of these 57,000 individuals—37,000

individuals—are enrolled in a home or community-based setting (“HCBS”) also

4 Chowdhury, M. and B. Benson, Deinstitutionalization and quality of life of

individuals with intellectual disability: a review of the international literature.

[Abstract] Journal of Policy and Practice in Intellectual Disabilities, 2011. 8(4). This

source was cited by plaintiffs’ expert, Dr. Wachtel, in her expert report. (Plaintiffs’

Exhibit 2, at 28).

known as waiver-funded services or waiver programs. Thus, the vast majority of

Pennsylvanians with intellectual disabilities are now cared for in community or

home settings, and institutionalized care has become the exception, rather than the

rule in terms of care and treatment for the intellectually disabled.

Indeed, out of the 57,000 residents eligible for ICF level care, only

approximately 2,250 residents currently reside in ICFs. The 2,250 residents in ICFs

are comprised of 556 residents in state operated ICFs and approximately 1,700

residents in privately operated ICFs in Pennsylvania. There are 150 to 160 privately-

operated ICFs in Pennsylvania, varying in size from centers with up to 120 beds to

centers with 4-10 beds. These state-run and privately-operated ICFs are all subject

to the same standards and regulations and all require the same certifications.5

This longstanding demographic trend away from care in institutionalized

settings, in turn, has led to a dramatic reduction over time in the number of state-run

institutions addressing the needs of this population. At one time the Commonwealth

of Pennsylvania operated seventeen or nineteen state-run ICFs, only four of which

5 These residential ICFs are operated by the Commonwealth of Pennsylvania and

regulated by the Center for Medicare and Medicaid Services and the

Commonwealth. To qualify for ICF level care an individual must have substantial

difficulty in three major life areas and be diagnosed with an intellectual disability

before the age of twenty-two. Most of the residents in these ICFs have an IQ of

seventy or lower. Aa a general rule admission into a state operated ICF requires a

court order. The state-operated ICFs provide extensive support and 24-hour per day

care to their residents.

are open today. The four state centers that presently remain open are Ebensburg

Center, Polk Center, Selinsgrove Center, and White Haven Center. The current

census at these four-state operated ICFs is approximately 556 residents; these centers

are under one third of their total capacity. Of the 556 residents, approximately 109

live at Polk Center and 49 live at White Haven Center. At the time DHS announced

the closure of White Haven Center and Polk Center in 2019, there were 1,762

certified vacant beds at these state operated ICFs. Thus, the number of beds in these

state-run facilities has for many years far exceeded the number of persons utilizing

these state centers for their care, and presently two out of three ICF beds at these

state facilities are empty.

The evidence also reveals that these demographic trends will continue or

accelerate over time as the state-run ICF population ages. At present, the average

age of the census is 63 years old, and the average length of time the residents have

lived at an ICF is 43 years. Not considering the closure of Hamburg Center in 2018,

there has been a 5-6% decline in census each year in the state operated ICFs, partly

due to an average of 40 residents per year passing away across the four state centers.

It was against the backdrop of this remorseless demographic math, which

favored consolidation of state facilities, that in August 2019 DHS decided it was no

longer sustainable to maintain these four-state operated ICFs and announced the

intended closure of Polk Center and White Haven Center. As discussed below, the

decision to close these facilities, while difficult, was the product of a thoughtful

deliberative process that took into account budgetary constraints as well as the

physical, mental, and emotional needs of Pennsylvania’s entire intellectually

disabled population. However, the announcement and implementation of this

decision has been marked by some missteps and misunderstandings that have

fostered this litigation and continue to persist among many of the families affected

by this decision.

C. The Proposed Closures of White Haven Center and Polk

Center: Planning and Implementation.

1. The Closure Decision and Announcement

Given this trend toward the deinstitutionalization of the intellectually

disabled, as well as a host of factors considered by DHS, a decision was made in

January of 2019 to close White Haven Center and Polk Center. According to Ms.

Ahrens part of the rationale for this decision was the decline in census in these

facilities, as well as the undeniable fact that these centers were operating at about

one-third of the total capacity of 1,762 beds. Ms. Ahrens testified that the census of

these ICFs was steadily declining between 5 and 6 percent every year, as residents

passed away or moved into the community, and there were fewer court-ordered

admissions to ICFs. Notably, while Pennsylvania initially had 17 or 19 state-

operated ICFs, by 2019, only four remained—Selinsgrove Center, Ebensburg

Center, Polk Center, and White Haven Center.

The statistics provided to the Court during the course of the hearing indicated

that while there are about 57,000 individuals in Pennsylvania who qualify for ICF

level of care, roughly 37,000 of those individuals have chosen placement in a home

or community-based setting (“HCBS”). Approximately 2,250 residents are currently

in ICF care, including a number of individuals who chose placement in privately

operated ICFs, of which there are roughly 150-160 in the state of Pennsylvania. Ms.

Ahrens testified that at present, all four state-operated ICFs are under roughly one-

third of their total capacity, which is 1,762 certified beds. According to Ms. Ahrens,

currently the total number of ICF residents in all four state-operated facilities is 556

residents, with Polk Center housing 109 residents, and White Haven Center housing

49 residents.6 Indeed, the continuing demographic trend reflecting the steady

reduction in the state-run ICF population is illustrated by a fact developed at the

preliminary injunction hearing. Ms. Ahrens reported that under the current

consolidation plan, the two state operated ICFs that will remain open, Ebensburg

Center and Selinsgrove Center, have a total available bed space of approximately

960 beds. Yet, at present, the state-run ICF population is only 556 persons.

6 We note that during the course of this hearing, different witnesses provided us with

slightly different numbers regarding the current census at various ICFs in

Pennsylvania. It was explained that these small census variations are a function of

the fact that this census is a dynamic process which changes in minor ways from day

to day. In our view, none of these minor daily census variations fundamentally alter

our legal analysis in this case.

Therefore, even with these closures and consolidations the remaining centers will be

operating at only 59% of their total capacity.

In addition to the decline in census of ICF residents, Ms. Ahrens testified to

the financial aspects of keeping all four state-operated centers open. She explained

that these centers are funded, in part, through the Medicaid program, which provides

roughly 50% of the funding. This funding applies not only to the ICFs but to the

HCBS waiver program as well. Ms. Ahrens stated that while the funding for each

individual resident varies, the average cost per resident is approximately $582,000

annually for White Haven Center and $445,000 annually for Polk Center. In contrast,

the average annual expense of care in a community setting or privately operated ICF

is only a fraction of the average expense associated with these state centers. On

average, a community or home placement costs $190,000 per resident per year.

Placement of an intellectually disabled person in a privately run ICF, on average,

entails an annual expense of $240,000.

These budgetary differences are, in part, a function of the high fixed costs

associated with operating state facilities, particularly the Polk Center and White

Haven Center. Polk Center is the oldest facility currently in operation in

Pennsylvania having been established 125 years ago in 1898. While White Haven

Center is a more modern facility, opened in 1956, the infrastructure costs to run these

two facilities are substantial. Both White Haven Center and Polk Center are large

facilities encompassing several hundred acres of property. Both facilities have

centralized infrastructure, including water, sewer, and HVAC systems. Thus, there

is a significant cost to maintain this infrastructure regardless of how many residents

the facility houses.

Due to these fixed costs, the budgetary impact of maintaining both centers in

operation indefinitely into the future is significant and substantial. In 2019, when the

decision was made to close Polk Center and White Haven Center, the

Commonwealth estimated based upon the closure of the Hamburg Center in 2018

that it would save $45,000,000 to $46,000,000 annually through the closure and

consolidation of these ICFs. This initial estimate assumed, based upon the state’s

experience with the closure of the Hamburg Center in 2018, that roughly half of the

residents would choose to transfer into community settings. However, after learning

that many residents of Polk Center and White Haven Center did not want to transfer

into a community setting and would rather continue residing in an ICF setting, the

state reevaluated its estimates. Nonetheless, even this revised estimate reveals that

this proposed closure and consolidation would yield substantial savings for the

Commonwealth totaling approximately $21,000,000 annually.

Yet these budgetary considerations, while significant, tell only part of the

story. These closure decisions, while difficult, are not merely an exercise in

budgetary arithmetic. These decisions were also influenced by considerations

relating to the health, safety, well-being, and social needs of Pennsylvania’s disabled

population.

At the outset, and significantly, it is undisputed that the Polk Center has

experienced Legionella7 in its water system for several years and has been unable to

permanently fix this problem to date. Thus, for all of the residents at the facility, a

cadre of approximately 109 people who represent two thirds of this putative plaintiff

class, and particularly the largely aging population at Polk Center, many of whom

suffer from a series of medical co-morbidities, the presence of legionella on campus

constitutes a real and on-going health hazard.

A second medically grounded concern taken into consideration by the

Commonwealth in making this decision was the quality of life of the residents of

these facilities were they to remain open in the face of the steadily declining ICF

population. Ms. Ahrens testified that if the current residents at these two centers who

do not wish to leave were permitted to live out their days at these centers, their

quality of life and quality of care would eventually diminish significantly. Ms.

Ahrens noted that these centers currently offer activities and outings but would likely

cease many of these activities and outings if only a handful of residents remained.

7 According to the Center for Disease Control and Prevention (CDC) “legionella

bacteria can cause a serious type of pneumonia (lung infection) called Legionnaires’

disease.” See https://www.cdc.gov/legionella /about/ index.html.

Moreover, and importantly, the medical services and specialists that are currently

offered onsite would likely need to be outsourced to offsite providers, as it is likely

that DHS would be unable to provide onsite specialist support if only a few residents

remained. Ms. Ahrens also testified to the reality of staffing concerns that would

need to continue to be met if only a few residents remained at these facilities. In

addition, Ms. Ahrens opined that the quality of life of these residents is, in some part,

bolstered by the presence of other residents and the activity going on within the

center, which would significantly diminish as the number of residents declined over

time.

Finally, and more fundamentally, there was a direct health and safety

component to the annual estimated $21,000,000 budget savings that would accrue

from the closure of Polk Center and White Haven Center. Ms. Ahrens testified that

under state law, the money saved from the closures must be put into a fund that will

be used by DHS exclusively to provide housing support, direct support to

professionals, and other services to those with intellectual disabilities on the waiting

list for services.8 Thus, the moneys saved through these closures and consolidations

must be used to assist the intellectually disabled community. Given this provision of

state law, this closure analysis presented state officials with a stark choice: they

could maintain Polk Center and White Haven Center at an annual estimated cost of

8 72 P.S. § 1729-E(b)(4) (Effective July 11, 2022).

$21,000,000 for the benefit of a shrinking population of 158 persons, or they could

close these underpopulated centers, and reallocate $21,000,000 annually to address

the needs of the 57,000 Pennsylvanians who struggle with intellectual disabilities.

Viewed in this light, the closure and consolidation decision can be seen as a difficult,

but necessary, exercise in providing the greatest good to the greatest number of those

facing these disabilities.

Yet, while the decision to close and consolidate the state-run ICFs was

thoughtful in its conception, it was flawed in its execution. Residents, guardians, and

staff of the Polk Center and White Haven Center were first notified of the intended

closures in August of 2019, some eight months after the initial closure decisions had

been made. At the time of the announcement, the state was anticipating that the

closures would take 36 months to complete. This projection was based upon the

state’s experience in 2018 with the Hamburg Center closure, which was estimated

to take 18 months to complete and actually took 19 months to complete. While the

initial closure date was projected for August of 2022, the current date for closure of

these two facilities was later extended to November 30, 2022.

The Commonwealth’s announcement of this closure and subsequent steps to

implement and start the process was far from perfect. At the outset, the

announcement of the closures to the staff, residents and their guardians at these two

facilities was roughly eight months after the decision was made, and was made

without any warning or indication that the facilities would close. The nature of this

announcement fostered concern, suspicion, and distrust among the affected families,

distrust which persists to this day. In addition, the informational meetings that were

held at each facility with guardians, family members, residents, and staff may have

compounded this confusion and distrust. Several guardians of these residents

testified that at these meetings, Commonwealth personnel emphasized information

concerning transfers to group homes and community settings. While state officials

testified that this emphasis was designed to comply with federal integration

mandates and advise families of resources that were not available to many when the

initial state placements were made, the state’s emphasis on community placements

led many families to believe that their loved ones would be forced into a community

setting rather than given the option to continue to reside in an ICF. This was

particularly troubling for many of the guardians who testified at the hearing, as many

of their loved ones have resided in these ICF settings for several decades.

Additionally, many of the guardians testified that their loved ones could not live in

community settings because of their behavioral issues and mental capacities.

Kevin Dressler, the Director of ODP’s Bureau of State Operated Facilities,

testified that information about community settings was given to the residents at this

initial informational meeting because many of them did not have such options

available to them at the time they were admitted to these ICFs, and these residents

and their guardians were very familiar with the ICF setting. Thus, Mr. Dressler

testified that the goal was to give guardians and residents information concerning all

of options available to them, not just information regarding ICFs. However, it is

clear that the information given at these initial meetings sparked outrage, confusion,

and fear among guardians of the residents, as well as staff at the facilities, who

voiced their concerns regarding some of the residents being placed into the

community. These concerns persist to this day, despite the fact that the

Commonwealth’s current placement plan would allow for the transfer of all of the

residents of Polk Center and White Haven Center into other state-run ICFs.

2. Implementing a Transition Policy and the Transfer Process

Like the decision to close and consolidate these facilities, the planning for

patient placements during these closures was thoughtful in its conception, but

uneven in its execution. Mr. Dressler, the state official charged with this transition

responsibility, testified regarding the implementation of the closures and

transitioning the residents to new facilities or community-based settings. Mr.

Dressler has been employed by the Commonwealth for 30 years, with 23 years of

experience at Selinsgrove Center as a residential manager, quality assurance

director, and facility director at that ICF.9 Mr. Dressler testified that while he was

9 Given Mr. Dressler’s longstanding affiliation with Selinsgrove Center, and his

spouse’s employment at the center, he was questioned at the preliminary injunction

hearing regarding whether his affinity for Selinsgrove Center affected the decision-

not part of the decision to close White Haven Center and Polk Center, as the Director

of the Bureau of State Operated Facilities he revised and implemented the transition

discharge planning policy, which was finalized in March of 2021. (Def. Ex. 10). Mr.

Dressler testified that there had been a policy in place, but this policy was revised

following the closure of Hamburg Center to reflect changes based on lessons learned

from that closure process.

As conceived by state officials, the transfer policy envisioned a carefully

sequenced, collaborative, inter-disciplinary process, which entailed full participation

by family and guardians, and was designed to achieve the least restrictive, medically

appropriate placement for each resident, consistent with the family’s desires. The

transition discharge planning policy contains procedures for any transfer, whether it

be transfer from an ICF to a community setting or transfer from one ICF to another.

Regarding discharge from an ICF to another state-operated ICF, the policy provides

for a three-phase discharge plan. First, after a guardian or resident makes the decision

to transition to another facility, the resident’s social worker must update or create

discharge-related documents, including an Essential Lifestyle Plan (“ELP”); a One

Page Summary (“OPS”); a State Center Discharge Planning Checklist; and other

making process, which closed Polk Center and White Haven Center but left

Selinsgrove Center open. Mr. Dressler testified without contradiction that the

decision regarding which centers to close was made by other, more senior state

officials.

related documents as needed, which are then sent to the facility to which the person

is transitioning. (Id., at 32-33). Mr. Dressler testified that several residents decided

to transition to Selinsgrove Center or Ebensburg Center following the closure

announcement, and those residents’ documents were sent to those facilities in order

to prepare for the transition process.

The second phase of the transition process is participation in a series of inter-

disciplinary discharge planning meetings. (Id., at 35-39). Mr. Dressler testified that

no single person makes transition decisions, and that family members are

encouraged to be involved in this planning process. Indeed, some of the guardians

who testified at the hearing spoke about the transition planning process. The policy

provides for an initial discharge planning meeting, the goal of which is to establish

the roles of each planning team member, an overview of the planning process,

schedules and expectations for future planning meetings, and the process and

schedule for visits. (Id., at 35-36). The policy then provides for bi-weekly update

meetings and destination center visits, as well as a final discharge planning team

meeting prior to the actual discharge. (Id., at 37-39). Throughout this process, each

resident would be provided a discharge planning checklist in order to ensure that all

of the resident’s documents and information were up to date prior to discharge. (Def.

Ex. 5)

The transition policy then calls for a final discharge planning team meeting to

occur no more than two weeks prior to the resident’s selected move date. (Def. Ex.

10, at 39). The policy states that at this time, a majority, if not all of the discharge

planning checklist should be completed. Further, the resident’s first post-discharge

monitoring appointment should be scheduled at this time. (Id.) Finally, the policy

provides for a final discharge preparation meeting 24-48 hours prior to the move

date to ensure the logistics of the transfer and that personal possessions and

medications of the resident are packed and marked. (Id., at 40). On the day of

discharge, medications and personal property are inventoried, and a day-of-

discharge checklist is completed. (Id., at 42). Once an individual is discharged to a

new facility, under the Commonwealth’s plan a period of post-discharge monitoring

takes place. Mr. Dressler described this process as a sort of “wellness check” to

ensure that the resident is getting acclimated to his or her new facility and to address

any concerns regarding the resident’s wellbeing. The first meeting takes place one

week after the discharge, with subsequent meetings over the next 30, 60, 90, 180,

and 365 days. This final phase of the transfer process was described as a state-of-the

art practice by the defendant’s expert witness, Dr. Mark Diorio.

Both Ms. Ahrens and Mr. Dressler testified that the planning of a transfer is

individualized and tailored to the needs of the specific resident. Included in the

transfer planning are considerations such as the individual’s medical needs;

proximity to loved ones and the ability to facilitate visits with loved ones; and the

opportunity of familiar staff to transfer to the new facility or to have familiar staff

visit with the resident during the transition process. Mr. Dressler also testified that

he attends meetings at both Polk Center and White Haven Center every other week

since residents have transferred to other facilities, and he addresses any concerns

that are brought by the residents, their guardians, or staff. He testified that to his

knowledge, no resident has suffered physical harm as a result of a transfer.

Although, the transition planning procedures represent a carefully considered

approach to the challenging issue of moving this aging and fragile population while

minimizing transfer trauma, in practice the transfer procedures have not always fully

met policy expectations in the eyes of affected families. With respect to this

discharge planning process, several of the guardians had concerns throughout the

process. These concerns included errors on some of the discharge documents, as well

as concerns about the destination center visits. Unfortunately, and beyond any

person’s control, some destination center visits were impeded by the COVID-19

pandemic, which restricted access to areas of the centers’ facilities. These

restrictions led to concerns regarding the residential areas at these facilities—

Selinsgrove Center and Ebensburg Center—as well as a general concern regarding

COVID cases at the facilities.10 With respect to the plaintiffs and putative class

members in this case, several guardians also expressed concerns regarding the

adequacy of care that their loved ones would receive at Selinsgrove Center and

Ebensburg Center as opposed to Polk Center and White Haven Center, as well as

concerns about trauma resulting from a transfer generally. Indeed, many of the

witnesses who testified at the hearing, both expert witnesses and fact witnesses,

testified to the phenomenon of “transfer trauma.” The consensus was that individuals

with profound and severe intellectual disabilities and autism, like the plaintiffs and

putative class members here, have a high risk for trauma when taken out of familiar

environments and placed in an unfamiliar environment. Additionally, several

guardians testified regarding their concern that their loved ones would end up in a

psychiatric ward if the receiving facility was unable to treat or control their

behaviors.

Mr. Dressler testified that while there are some differences between the

amenities available at the four state-operated centers, the core regulations under

which the facilities operate are the same, as is the training of staff. Additionally, the

10 While the unpredictable course of the coronavirus pandemic has doubtless been a

further complicating factor in the implementation of these transfers, standing alone

COVID concerns do not clearly militate against further transfers since the evidence

indicates that, over time, all state facilities have experienced episodes of COVID

infection. Indeed, the highest rate of COVID fatalities has been reported at White

Haven Center, one of the facilities slated for closure.

Commonwealth’s expert witness, Dr. Mark Diorio, visited each of the four facilities

and opined that all four facilities, including Selinsgrove Center and Ebensburg

Center, have appropriate services to meet the needs of individuals with profound

intellectual disabilities.11 Furthermore, state officials have pledged to provide

comparable resident services at Ebensburg Center and Selinsgrove Center, as

specific needs are identified during this transition process.

11 Dr. Diorio’s participation in this hearing was the subject of some belated

controversy between the litigants. This controversy stemmed from the fact that the

plaintiffs asserted that Dr. Diorio’s expert report was released to them on or about

June 7, 2022, shortly after the deadline for expert report supplementation. According

to the plaintiffs this belated disclosure of the Diorio report was particularly

prejudicial since the report was disclosed after the supplementation deadline, and

was not a proper supplemental report since Dr. Diorio had not previously issued an

initial report. Therefore, the plaintiffs sought to preclude this evidence entirely.

Notably, the plaintiffs who had possessed the Diorio report for more than four

months by the time of the preliminary injunction hearing first chose to raise these

discovery issues on the eve of the hearing itself. (Doc. 147).

Upon consideration we exercised our discretion and denied this request to

completely preclude Dr. Diorio’s report and testimony for reasons that are set forth

in greater detail in a separate opinion, reasoning that we would benefit from

obtaining all relevant evidence and finding that the plaintiffs had not justified the

most severe of sanctions, preclusion of evidence, which had been disclosed to them

months earlier. Nonetheless, we authorized the plaintiffs to elicit expert testimony

from their witnesses critiquing the Diorio report, and the plaintiffs took full

advantage of this opportunity at the preliminary injunction hearing.

Moreover, having conducted this hearing, we find that Dr. Diorio’s testimony was

merely corroborative of the evidence provided by state officials, which we have

credited. Therefore, admission of the Diorio testimony and report did not materially

alter the quantum of proof here and we would have reached the same conclusions

with respect to these motions even in the absence of this contested testimony.

Thus, on balance the evidence reveals that the four remaining state centers are

highly regulated and provide comparable levels of care. Moreover, while the centers

are not identical in their amenities the state is committed, as it must be, to ensuring

that the care and services provided at Ebensburg Center and Selinsgrove Center meet

the same high standards formerly provided to residents at Polk Center and White

Haven Center.

3. The Transfer of Residents out of Polk Center and White

Haven Center

Following the closure announcement, these families and residents were put to

the difficult decision of placing their loved ones in a community setting or

transferring them to either to a private ICF or to another state-operated ICF.

According to Mr. Dressler, approximately 40 to 50 residents of the 158 total

residents at Polk Center and White Haven Center have chosen to be placed into a

community setting and have been placed on the state’s Planning List to be moved

into a community setting; 77 residents have firmly indicated that they do not wish to

move from either White Haven Center or Polk Center; and another subset of

residents and guardians have not yet decided where they would like their loved one

to be transferred. In June of 2022, Mr. Dressler sent a letter to all families and/or

guardians who had not yet made a decision, urging them to make a final decision as

to where their loved one should be transferred when Polk Center and White Haven

Center close. Unfortunately, this correspondence, which referred to the closure

decision as final despite the ongoing litigation, failed to have its intended effect of

encouraging collaboration. Instead, for some families it simply increased their

enmity, since they viewed the letter as dismissive of the concerns they raised in this

lawsuit.

Currently, the Commonwealth has announced an aspirational closure date for

these facilities of November 30, 2022. The evidence, however, convincingly

demonstrates that this is not a realistic closure date, and the Commonwealth

conceded as much during the closing arguments on the pending motions. Given that

many residents have not yet been transferred, and many more have not yet made a

decision and or even begun the transition planning process, this November 30

deadline simply is not feasible if the Commonwealth conducts the collaborative,

inter-disciplinary transfer process, which it has committed to undertake for each

resident in its care.

Indeed, every Commonwealth witness said as much. Thus, Ms. Ahrens and

Mr. Dressler conceded that adhering to this deadline would be very difficult. Dr.

Diorio, in response to a hypothetical posed by the Court, indicated that it would be

“extremely difficult” to complete these transfers within the one-month time period

that remains. Accordingly, all planning moving forward must operate on the

assumption which was acknowledged by Commonwealth counsel that at least 60 to

90 days will be necessary to fully engage in this interactive process.

D. This Litigation: Class Certification and Injunctive Relief

Following the closure announcement, several residents or their guardians

expressed a desire to remain at White Haven Center and Polk Center, with some

refusing to even begin the transition planning process. This appeared to be, at least

in part, due to the confusion surrounding placement of individuals following the

closure; as we have noted, many residents and guardians were under the impression

that the residents would be forced to move into a community setting rather than an

ICF. Thus, the instant lawsuit was filed on January 29, 2020, by 13 named

plaintiffs—residents or guardians/decisionmakers of residents who currently reside

at Polk Center or White Haven Center—as a proposed class action on behalf of

themselves and others similarly situated. (Doc. 1). The plaintiffs brought this action

against Governor Tom Wolf; Theresa Miller, the Secretary of the DHS; Kristin

Ahrens, the Deputy Secretary of ODP; Sue Rodgers, the facility director at Polk

Center; Mark Georgetti, the facility director at White Haven Center; DHS; ODP;

Polk Center; and White Haven Center.

The complaint asserts claims under the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12132, the Rehabilitation Act (“RA”), 29 U.S.C. § 794(a),

the Medical Assistance Program authorized by 42 U.S.C. § 1396 et seq., and the

United States Constitution. These claims stem from the premise announced by the

United States Supreme Court in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581

(1999), in which the Court held that individuals with intellectual disabilities have a

right under the ADA to receive services in the least restrictive setting. As to these

plaintiffs and putative class members, the complaint alleged that closing these two

ICFs and placing these individuals in community-based settings violates the ADA

because for these individuals, the least restrictive setting is either Polk Center or

White Haven Center.

Read as a whole, the principal thrust of the plaintiffs’ complaint was their

belief that the state closure plans were forcing families to make a hard and

inappropriate choice to place their loved ones, who require a high degree of ICF

care, in less secure and medically inappropriate community or home environments.

However, in passing the plaintiffs seemed to acknowledge in their complaint that

this transfer process entailed a broader array of choices and options since the

plaintiffs also sought the opportunity “to receive treatment in accordance with the

independent recommendations of the multidisciplinary evaluation, either at his/her

current residence, another state operated ICF/IID facility, or non-ICF/IID certified

setting, as each Plaintiff deems appropriate.” (Doc. 1, ¶ 128(b)(ii)). Thus, the relief

sought by the plaintiffs, in part, involved precisely what the Commonwealth is

currently offering to do; namely, to work with families to either facilitate (1) a

community placement; (2) a transfer to a private ICF; or (3) a transfer to one of the

remaining state operated ICFs.

The plaintiffs then filed a motion to certify a class. (Doc. 19). This motion

asserted that there were, at that time, 248 residents of Polk Center and White Haven

Center that were opposing the closure of the centers and placement into a community

setting. Prior to the motion for class certification, the defendants had filed a motion

to dismiss the complaint, and thus, the district court stayed the motion for class

certification pending resolution of the motion to dismiss. (Doc. 65). The motion to

dismiss was subsequently denied. (Docs. 71, 72).12

Following the denial of the motion to dismiss, the plaintiffs filed their first

motion for a preliminary injunction. (Doc. 81). The plaintiffs averred that the

Commonwealth defendants began pressuring residents at Polk Center and White

Haven Center to begin the transition planning process, and that the state had doubled

down on its efforts to begin moving residents out of Polk Center and White Haven

Center at that time. (Doc. 82). The motion further asserted that staffing levels at the

facilities were decreasing, which led to a concern that the residents were not being

12 We note that the denial of this motion to dismiss does not in any way dictate the

outcome of our review of the plaintiffs’ motions for preliminary injunction. At the

motion to dismiss stage the court is simply tasked with determining on the face of

the complaint whether the plaintiff has stated a plausible claim for relief. In contrast,

when we are examining motions for preliminary injunction we must go beyond the

pleadings and delve into the facts. We must then assess whether the plaintiffs’ claims

go beyond the merely plausible and ascertain whether the plaintiff can show a

substantial likelihood of success on the merits. Additionally, we are mandated to

weigh and balance the competing interest of the parties and the public, while also

evaluating the degree of harm which may flow from the grant or denial of

extraordinary interim relief.

or would not be adequately cared for. (Id.) The plaintiffs requested that the Court

direct the defendants to provide adequate staff at Polk Center and White Haven

Center; to cease pushing the closure date of August 2022; and to stay consideration

of all moves, even of those residents who had consented, until an investigation was

undertaken to determine if such consent had been unduly coerced. (Id.)

This motion was briefed extensively. (Docs. 82, 92, 98). Additionally, the

plaintiffs filed a motion to expedite a ruling on the class certification motion, which

was also extensively briefed. (Docs. 114, 115, 117, 118). In the interim, this case

was referred to mediation (Doc. 93), although mediation efforts were ultimately

unsuccessful.13 Before the Court ruled on the motion for a preliminary injunction, a

second motion for a temporary restraining order and preliminary injunction was

filed. (Doc. 125). This second motion asserted that residents of Polk Center and

White Haven Center and their guardians/decisionmakers had been informed that

they must choose a location to be transferred to—Selinsgrove Center or Ebensburg

Center—and that all residents were to be moved by November 30, 2022. The motion

13 Counsel for the plaintiffs attested to a side agreement that was allegedly reached

during these mediation efforts, which entailed the Defendants’ agreement to halt any

transfers of named plaintiffs or proposed class members who had been identified

during the pendency of the preliminary injunction motion. While we noted for

counsel that the mediator’s report of an unsuccessful mediation barred us from

considering any motion to enforce such an agreement if one had been reached, we

further noted that since the undersigned was assigned to this case, we have ensured

that any transfers of named plaintiffs or putative class members who had been

identified were stayed pending the resolution of the pending motions.

averred that the residents did not consent to such a transfer, as they believed these

two state centers were not the least restrictive setting and could not adequately meet

their needs. Similarly, this motion was extensively briefed. (Docs. 127, 130, 134).

The case was ultimately assigned to the undersigned on September 20, 2022.

(Doc. 135). Following the assignment of this case to the undersigned, the plaintiffs

filed a motion to expedite rulings on the pending motions for preliminary injunction

and temporary restraining order. (Doc. 138). Realizing the exigency of the pending

motions, with the November 30 closure date rapidly approaching, we scheduled a

conference with counsel on September 27, 2022, to discuss scheduling of these

matters. (Doc. 139). Thereafter, we granted the motion to expedite in part, and

ordered counsel to provide us with the earliest possible dates for an evidentiary

hearing on the pending motions.14 (Doc. 141). We subsequently scheduled a hearing

to begin on October 18, 2022. (Dc. 143).

The hearing took place over a period of seven days. During this time, we heard

testimony from four expert witnesses retained by the plaintiffs. Much of this expert

testimony focused upon the notion that wholesale placement of the plaintiffs and

14 During this conference, we were informed that there had been a putative class

member identified that was scheduled to be moved from Polk Center on September

28, 2022. Given that we had received information that this individual was a putative

class member and did not consent to be moved, we stayed this transfer pending the

resolution of the pending motions for class certification and for preliminary

injunctive relief. (Doc. 140).

other severely disabled residents of Polk Center and White Haven Center into

community settings would be inappropriate. This testimony had limited value for us

since it is clear that the Commonwealth’s current placement policy does not force

this stark binary choice upon these residents. Instead, the Commonwealth is

committed to working with families to either facilitate (1) a community placement;

(2) a transfer to a private ICF; or (3) a transfer to one of the remaining state operated

ICFs. Nonetheless, the plaintiffs’ experts also provided a critique of the overall

transfer policy and planning, which has helped inform our analysis of these motions.

In particular, these experts described the phenomenon of transfer trauma, a condition

that is especially grave for the intellectually disabled, who often rely upon continuity

and routine for their well-being.

We also received testimony from many guardians of named plaintiffs and

putative class members.15 These family members underscored the human dimension

of this process for their loved ones. Their testimony reflected familial devotion to

these disabled individuals, which was inspiring, and in some instances spanned

generations. We learned of the many trials and triumphs experienced by the residents

at Polk Center and White Haven Center and their families over the years. While each

family’s story was unique, several common elements emerged from the testimony

15 The testimony of the guardians and family members is summarized and attached

as Appendix A.

of these witnesses. Thus, in many instances family members and guardians

continued to harbor a fear that their loved ones would be placed in a community

setting that they were ill equipped to address. This was a common concern despite

the fact that the evidence revealed the state has the ICF capacity to fully

accommodate all Polk Center and White Haven Center residents even after the

closure of these facilities. The families also provided a sharp critique of certain

aspects of the transition process, underscoring the need for greater communication

and transparency. Further, these witnesses voiced their fears that their family

members would suffer from transfer trauma if Polk Center and White Haven Center

were closed, and we learned that for the sake of their loved ones all family and

guardians would prefer that they remain where they currently reside.

Finally, we also heard testimony from the Commonwealth’s witnesses,

including their independent expert and the state officials tasked with the difficult job

of overseeing this transition. The hearing concluded on October 28, 2022.

After a thorough consideration of all of the evidence presented, and

recognizing that this situation presents a series of intractable challenges for all,

challenges thrust upon the parties by the imperfect nature of the available

alternatives, for the following reasons, we will grant the motion for class certification

but deny the motions for a preliminary injunction.

III. Discussion

A. The Development of the Law of Disability Rights: Olmstead and

its Progeny.

Any evaluation of a motion for preliminary injunction necessarily involves a

predictive assessment of the merits of the moving party’s legal claims. So it is here.

Accordingly, we begin our consideration of these motions with an examination of

the contours of federal disability law and how this law has developed over the past

forty years.

The national trend toward the deinstitutionalization of individuals with

intellectual disabilities in the 1960s and 1970s inspired legislative initiatives by

Congress, including the enactment of the Rehabilitation Act (“RA”) and the

Americans with Disabilities Act (“ADA”). See 42 U.S.C. § 12132, 29 U.S.C. §

794(a). Taken together, these two statutes largely frame the discussion of disability

rights in federal court. On this score, it has been noted that:

The ADA largely mirrors Section 504 of the RA, which states as

follows:

No otherwise qualified individual with a disability ... shall,

solely by reason of her or his disability, be excluded from

the participation in, be denied the benefits of, or be

subjected to discrimination under any program or activity

receiving Federal financial assistance or under any

program or activity conducted by any Executive agency or

by the United States Postal Service.

29 U.S.C. § 794(a). We have construed the provisions of the RA and

the ADA in light of their close similarity of language and

purpose. See Helen L. v. DiDario, 46 F.3d 325, 330–32 (3d Cir.), cert.

denied, 516 U.S. 813, 116 S.Ct. 64, 133 L.Ed.2d 26 (1995).

The ADA and RA's anti-discrimination principles culminate in their

integration mandates, which direct states to “administer services,

programs, and activities in the most integrated setting appropriate to the

needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d).

“[T]he most integrated setting appropriate to the needs of qualified

individuals with disabilities” is “a setting that enables individuals with

disabilities to interact with nondisabled persons to the fullest extent

possible.” 28 C.F.R. pt. 35, App. A, p. 450 (1998). In short, where

appropriate for the patient, both the ADA and the RA favor integrated,

community-based treatment over institutionalization.

Frederick L. v. Dep't of Pub. Welfare of Com. of Pennsylvania, 364 F.3d 487, 491–

92 (3d Cir. 2004).

This legislation, in turn, led to the seminal Supreme Court decision in

Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999). In Olmstead, the plaintiffs—

two intellectually disabled individuals who had been institutionalized in the early

1990s—brought suit under the ADA to challenge their continued

institutionalization. Id. at 593. The plaintiffs asserted that their continued placement

in an institution, rather than a community-based setting, constituted discrimination

based on their disability in violation of Title II of the ADA. Id. at 594-95.

The Supreme Court held that continued placement in an institutional setting,

when such placement is medically unjustified, constitutes disability discrimination

in violation of the ADA. Id. at 597. In doing so the Court first recognized two

judgments that inevitably led to the conclusion that clinically unjustified isolation is

a form of discrimination:

First, institutional placement of persons who can handle and benefit

from community settings perpetuates unwarranted assumptions that

persons so isolated are incapable or unworthy of participating in

community life. Cf. Allen v. Wright, 468 U.S. 737, 755, 104 S.Ct. 3315,

82 L.Ed.2d 556 (1984) (“There can be no doubt that [stigmatizing

injury often caused by racial discrimination] is one of the most serious

consequences of discriminatory government action.”); Los Angeles

Dept. of Water and Power v. Manhart, 435 U.S. 702, 707, n. 13, 98

S.Ct. 1370, 55 L.Ed.2d 657 (1978) (“ ‘In forbidding employers to

discriminate against individuals because of their sex, Congress

intended to strike at the entire spectrum of disparate treatment of men

and women resulting from sex stereotypes.’ ”) (quoting Sprogis v.

United Air Lines, Inc., 444 F.2d 1194, 1198 (C.A.7 1971)). Second,

confinement in an institution severely diminishes the everyday life

activities of individuals, including family relations, social contacts,

work options, economic independence, educational advancement, and

cultural enrichment. See Brief for American Psychiatric Association et

al. as Amici Curiae 20–22. Dissimilar treatment correspondingly exists

in this key respect: In order to receive needed medical services, persons

with mental disabilities must, because of those disabilities, relinquish

participation in community life they could enjoy given reasonable

accommodations, while persons without mental disabilities can receive

the medical services they need without similar sacrifice. See Brief for

United States as Amicus Curiae 6–7, 17.

Id. at 600-01. The Court went on to note that the Developmentally Disabled

Assistance and Bill of Rights Act of 1975 provides that “[t]he treatment, services,

and habilitation for a person with developmental disabilities . . . should be provided

in the setting that is the least restrictive of the person’s personal liberty.” Id. at 599

(quoting 42 U.S.C. § 6010(2)). In doing so the Court explicitly acknowledged the

national trend towards deinstitutionalization and integration of disabled persons into

society whenever such integration is medically feasible. Thus, the Court concluded

that under the ADA, states are required to provide community-based services “when

the State's treatment professionals determine that such placement is appropriate, the

affected persons do not oppose such treatment, and the placement can be reasonably

accommodated, taking into account the resources available to the State and the needs

of others with mental disabilities.” Id. at 607. The Olmstead Court, however,

recognized another undeniable truth that “[f]or [some] individuals, no placement

outside the institution may ever be appropriate.” Id. at 605. Indeed, the Court noted

that absent a reasonable assessment from a professional indicating that a person is

eligible for a community-based program, “it would be inappropriate to remove a

patient from the more restrictive setting.” Id. at 602.

Thus, Olmstead recognized a statutory right on the part of the disabled to be

housed and treated in the least restrictive, medically-appropriate setting. However,

this statutory right is narrowly framed and in practice is only triggered when the

following conditions are satisfied:

[1] the State's treatment professionals have determined that community

placement is appropriate, [2] the transfer from institutional care to a less

restrictive setting is not opposed by the affected individual, and [3] the

placement can be reasonably accommodated, taking into account [a]

the resources available to the State and [b] the needs of others

with ... disabilities.

Doxzon v. Dep't of Hum. Servs., No. 1:20-CV-00236, 2020 WL 3989651, at *10

(M.D. Pa. July 15, 2020) (quoting Frederick L., 364 F.3d at 492 ). At bottom,

Olmstead and its progeny recognize a right to patient autonomy, which encompasses

an ability to receive medically appropriate care in the least restrictive, reasonably

available setting. Accordingly, Olmstead confers to the disabled a conditional ability

to dictate the level of their care, consistent with sound medical judgment and

available resources. However, nothing in Olmstead endorsed the notion advanced

here that disabled persons have an unqualified right to dictate the precise terms,

conditions, and venue for their care and treatment. Quite the contrary, Olmstead

expressly recognized “the State generally may rely on the reasonable assessments of

its own professionals in determining whether an individual ‘meets the essential

eligibility requirements’ for habilitation in a community-based program.” Olmstead,

527 U.S. at 602. Likewise the state is entitled “to show that, in the allocation of

available resources, immediate relief for the plaintiffs would be inequitable, given

the responsibility the State has undertaken for the care and treatment of a large and

diverse population of persons with mental disabilities.” Id. at 604.

These principles apply with particular force to state decisions to transfer

disabled individuals between comparable facilities. In Pennsylvania, the discretion

to transfer intellectually disabled persons between institutions providing a

comparable level of care is expressly recognized by statute, specifically, 50 Pa. Stat.

Ann. § 4416(a) which provides that: “The department may, upon application by the

director of any state operated facility, transfer a mentally disabled person to any

other state operated facility under its jurisdiction.”

Nonetheless, in the instant case, the plaintiffs invite us to take an

unprecedented action. In particular, they urge us to enjoin the state from engaging

in transfers of patients between state operated ICFs and ask us to dictate that the state

maintain four such facilities indefinitely despite the demographic evidence which

suggests that such a course would be improvident. In urging us to follow this course,

the plaintiffs encourage us to consider what some courts have called an “obverse

Olmstead” argument—the contention that intellectually disabled persons have the

right to remain in an institution, and specifically the institution of their choice, under

the ADA rather than be forced to live in a community setting. This argument was

rejected by one court in this circuit in Sciarrillo ex rel. St. Amand v. Christie, 2013

WL 6586569 (D.N.J. Dec. 13, 2013). In Sciarrillo, the plaintiffs challenged New

Jersey’s decision to close two state-run residential facilities for the developmentally

disabled. Id. at *1. The plaintiffs asserted that they were forced to choose between

being placed in a community setting or at another facility over 100 miles from the

other centers. Id. The plaintiffs relied on Olmstead for the proposition that they had

the right to oppose the state’s decision to move them from an institutional setting to

a community-based setting. Id.

The district court rejected this argument, holding that placement in a

community setting did not qualify as discrimination under the ADA. Id. at *3-4. On

this score, the court joined other federal district courts in rejecting the “obverse

Olmstead” argument:

Plaintiffs’ interpretation of Olmstead is untenable. Simply put, “there

is no basis [in Olmstead ] for saying that a premature discharge into the

community is an ADA discrimination based on disability.” Richard S.

v. Dep't of Developmental Servs. of the State of Cal., No. 97–cv–219,

2000 WL 35944246, at *3 (C.D. Cal. Mar.27, 2000) (emphasis in

original). Indeed, “[t]here is no ADA provision that providing

community placement is a discrimination. It may be a bad medical

decision, or poor policy, but it is not discrimination based on

disability.” Id. (emphasis in original). This Court will therefore join the

numerous other federal courts have rejected similar “obverse

Olmstead” arguments in circumstances where a State has decided to

close treatment facilities for the developmentally disabled or relocate

such disabled individuals to community settings. See, e.g., Richard C.

ex rel. Kathy B. v. Houstoun, 196 F.R.D. 288, 292 (W.D. Pa. 1999)

(rejecting interpretation of Olmstead identical to the one proffered in

this case and finding that “it does not logically follow [from Olmstead

] that institutionalization is required if any of the three Olmstead criteria

is not met”); Ill. League of Advocates for the Developmentally,

Disabled v. Quinn, No. 13–cv–1300, 2013 WL 3168758, at *5 (N.D.

Ill. June 20, 2013) (noting, in case brought to enjoin the State of Illinois

from closing development centers, that “[u]njustified isolation

constitutes discrimination under the ADA, but” Olmstead does not

mean the converse is true).

Id. at *4.

More fundamentally, the relief sought here—a federal court order directing

the state to operate two ICF centers which it has determined should be closed even

though there are available ICF beds in other state-run facilities—is acknowledged

by all to be entirely unprecedented. Thus, the plaintiffs have candidly admitted that

no court has adopted this invitation and granted this form of relief in the past.

Moreover, the practical experience described by multiple experts in the course of the

preliminary injunction hearing strongly suggested that this proposal runs contrary to

the growing state practice throughout the nation. Thus, Ms. Ahrens testified to the

fact that eleven or twelve states no longer operate any ICF centers and attested to her

personal experience with ICF closures both in Oregon and previously in

Pennsylvania. Similarly, Mr. Thomas and Dr. Diorio described the closure of state

ICFs in New Jersey and Virginia.

More fundamentally, the idea that Olmstead and its progeny implicitly

authorize federal courts to enjoin the closure of specific state ICFs when other

comparable facilities are available within the state to disabled persons has been

consistently rebuffed by the courts. Thus, other federal circuit and district courts

have rejected this argument, holding that a transfer from an institution to a

community placement does not qualify as discrimination under the ADA. See e.g.,

Ricci v. Patrick, 544 F.3d 8 (1st Cir. 2008) (denying request to reopen consent decree

to enjoin state transfers of residents from one state facility to another as part of a

closure plan); Lane v. Kitzhaber, 2014 WL 2807701, at *3 (D. Or. June 20, 2014)

(“[N]either the ADA nor the Rehabilitation Act creates a right to remain in the

program or facility of one’s choosing”); D.T. v. Armstrong, 2017 WL 2590137, at

*7-8 (D. Idaho June 14, 2017) (denying a preliminary injunction and holding that

the plaintiffs were not likely to succeed on their claim that the closure of an ICF and

placement of a resident into a community setting “would violate the integration

mandate of the ADA and Rehabilitation Act and result in unlawful discrimination”).

Further, while a number of these cases dealt with transfers from an ICF to a

community-based setting, our research has not yielded any authority, and the parties

have not provided us with any authority that recognizes an ADA violation based on

the transfer of an intellectually disabled person from one state-operated ICF to

another comparable ICF. Indeed, in our view, it would seem unlikely that such a

transfer—an ICF to another ICF—would violate the ADA if the transfer from an

ICF to a community setting has been held not to violate the ADA.

Thus, the relief sought here is truly extraordinary. It would contradict and

contravene existing state law, which authorizes the transfer of patients between state-

run ICFs. It would go beyond anything expressly or implicitly authorized by

Olmstead, and it would fly in the face of a rising tide of case law that has refused to

enjoin states from closing institutions and transferring persons to other comparable

facilities.

It is against this legal and factual backdrop that we now consider the pending

motions for class certification and preliminary injunction.

B. Class Certification Standard of Review

Turning first to the question of class certification, it is well settled that:

The class action is “an exception to the usual rule that litigation is

conducted by and on behalf of the individual named parties

only.” Califano v. Yamasaki, 442 U.S. 682, 700–701, 99 S.Ct. 2545, 61

L. Ed. 2d 176 (1979). In order to justify a departure from that rule, “a

class representative must be part of the class and ‘possess the same

interest and suffer the same injury’ as the class members.” East Tex.

Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct.

1891, 52 L.Ed.2d 453 (1977) (quoting Schlesinger v. Reservists Comm.

to Stop the War, 418 U.S. 208, 216, 94 S.Ct. 2925, 41 L.Ed.2d 706

(1974)).

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348–49 (2011). Because class action

litigation is an exception to the general rule favoring litigation of individual claims

by specific plaintiffs: “[t]o determine whether the putative class has satisfied . . . all

applicable Rule 23 [class action certification] requirements[], the District Court must

conduct a ‘rigorous analysis’ of the evidence and arguments presented.” In re

Lamictal Direct Purchaser Antitrust Litig., 957 F.3d 184, 190–91 (3d Cir. 2020).

Motions for class certification are governed by Rule 23 of the Federal Rules

of Civil Procedure, and entail a multi-faceted analysis. At the outset, the party

seeking class certification must satisfy the threshold requirements of Rule 23(a)

which sets the following four prerequisites for class certification:

(a) Prerequisites. One or more members of a class may sue or be sued as

representative parties on behalf of all members only if:

(1) the class is so numerous that joinder of all members is

impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the

claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the

interests of the class.

Fed. R. Civ. P. 23(a).

Each of these four threshold requirements—numerosity, commonality,

typicality and adequacy—are, in turn, defined by case law to require specific and

exacting showings. For example, with respect to Rule 23’s numerosity requirement,

the Court of Appeals counsels us that:

Under Rule 23, the proposed class must be “so numerous that joinder

of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). This “rule

prevents putative class representatives and their counsel, when joinder

can be easily accomplished, from unnecessarily depriving members

of a small class of their right to a day in court to adjudicate their own

claims.” Marcus, 687 F.3d at 594–95. As with every Rule 23

requirement, plaintiffs must show the class is numerous enough by a

preponderance of the evidence. Steak 'n Shake, 897 F.3d at 483–84. We

presume joinder is impracticable when the potential number of class

members exceeds forty. Id. at 486. This is a guidepost: showing the

number of class members exceeds forty is neither necessary nor always

sufficient. Marcus, 687 F.3d at 595. “The text” of Rule 23(a)(1) is

“conspicuously devoid of any numerical minimum required for class

certification.” In re Modafinil Antitrust Litig., 837 F.3d 238, 249 (3d

Cir. 2016). But while a class of forty-one does not automatically

satisfy Rule 23(a)(1), a putative class that size faces a relaxed burden

under our precedent. By contrast, the “inquiry into impracticability

should be particularly rigorous when the putative class consists of fewer

than forty members.” Id. at 250.

In recent opinions, we have given the numerosity requirement “real

teeth.” Steak 'n Shake, 897 F.3d at 484. When plaintiffs cannot directly

identify class members, they “must show sufficient circumstantial

evidence specific to the products, problems, parties, and geographic

areas actually covered by the class definition to allow a district court to

make a factual finding. Only then may the court rely on ‘common

sense’ to forgo precise calculations and exact numbers.” Marcus, 687

F.3d at 596. And “where a putative class is some subset of a larger pool,

the trial court may not infer numerosity from the number in the larger

pool alone.” Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 358 (3d Cir.

2013).

Allen v. Ollie's Bargain Outlet, Inc., 37 F.4th 890, 895–96 (3d Cir. 2022).

Further:

A class may be certified only if “there are questions of law or

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

“Commonality requires the plaintiff to demonstrate that the class

members have suffered the same injury. This does not mean merely that

they have all suffered a violation of the same provision of law.” Dukes,

564 U.S. at 349–50, 131 S.Ct. 2541 (citation and quotation marks

omitted). Instead, the claims “must depend upon

a common contention.” Id. at 350, 131 S.Ct. 2541. “That common

contention, moreover, must be of such a nature that it is capable of

classwide resolution—which means that determination of its truth or

falsity will resolve an issue that is central to the validity of each one of

the claims in one stroke.” Id. This test ensures that the “claims can

productively be litigated at once.” Id. When deciding whether the class

raises a common question, “the court cannot be bashful. It must resolve

all factual or legal disputes relevant to class certification, even if they

overlap with the merits—including disputes touching on elements of

the cause of action.” Marcus, 687 F.3d at 591 (quotation marks

omitted).

Id., at 900. With respect to this commonality requirement, “[w]hat matters

to class certification . . . is not the raising of common ‘questions’—even in droves—

but rather, the capacity of a class-wide proceeding to generate common answers apt

to drive the resolution of the litigation. Dissimilarities within the proposed class are

what have the potential to impede the generation of common answers.” Ferreras v.

Am. Airlines, Inc., 946 F.3d 178, 185 (3d Cir. 2019) (quoting Wal-Mart Stores, Inc.,

564 U.S. at 350)) (emphasis in original).

Moreover, under Rule 23(a), the party seeking to certify a class action must

show both that the claims of the representative plaintiff are typical of those of the

class as a whole, and that the representative party will adequately advance and

protect the interests of this putative class. These two factors are frequently

considered together since as a practical matter, oftentimes “[t]he adequacy-of-

representation requirement ‘tend[s] to merge’ with the commonality and typicality

criteria of Rule 23(a).” Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 626, 117 S.

Ct. 2231, 2251, 138 L. Ed. 2d 689 n. 20 (1997). “The requirement of typicality is

imposed to prevent certification when ‘the legal theories of the named plaintiffs

potentially conflict with those of the [class] absentees.’” Boley v. Universal Health

Servs., Inc., 36 F.4th 124, 133 (3d Cir. 2022). Moreover,

To avoid conflict, typicality seeks to ensure “the interests of the class

and the class representatives are aligned ‘so that the latter will work to

benefit the entire class through the pursuit of their own goals.’

” Newton, 259 F.3d at 182–83 (quoting Barnes v. Am. Tobacco Co.,

161 F.3d 127, 141 (3d Cir. 1998)). In evaluating typicality, we focus on

whether the class representatives' legal theory and claim, or the

individual circumstances on which those theories and claims are based,

are different from those of the class. In re Schering Plough Corp.

ERISA Litig., 589 F.3d 585, 597–98 (3d Cir. 2009).

Id.

In addition, Rule 23(a) requires that “the representative parties will fairly and

adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). In practice,

the primary purpose of Rule 23(a)’s adequacy requirement is:

“[T]o determine whether the named plaintiffs have the ability and the

incentive to vigorously represent the claims of the class.” In re Cmty.

Bank of N. Va. Mortg. Lending Pracs. Litig., 795 F.3d 380, 393 (3d

Cir. 2015). Thus, for a class representative to be adequate, she must

“have a minimal degree of knowledge about the case and have no

conflict of interest with class counsel and members of the class[.]” In

re Suboxone (Buprenorphine Hydrochlorine & Naloxone) Antitrust

Litig., 967 F.3d 264, 272 (3d Cir. 2020) (cleaned up).

Duncan v. Governor of Virgin Islands, 48 F.4th 195, 209 (3d Cir. 2022).

However, satisfying these four threshold prerequisites for class certification

is only the first step in the multi-faceted analysis required by law. Once Rule 23(a)’s

initial class certification criteria are met, the Court must also consider the provisions

of Rule 23(b), which sets further limits on class certification, stating that:

(b) A class action may be maintained if Rule 23(a) is satisfied and if:

(1) prosecuting separate actions by or against individual class members

would create a risk of:

(A) inconsistent or varying adjudications with respect to individual

class members that would establish incompatible standards of conduct

for the party opposing the class; or

(B) adjudications with respect to individual class members that, as a

practical matter, would be dispositive of the interests of the other

members not parties to the individual adjudications or would

substantially impair or impede their ability to protect their interests;

(2) the party opposing the class has acted or refused to act on grounds that

apply generally to the class, so that final injunctive relief or corresponding

declaratory relief is appropriate respecting the class as a whole; or

(3) the court finds that the questions of law or fact common to class

members predominate over any questions affecting only individual

members, and that a class action is superior to other available methods for

fairly and efficiently adjudicating the controversy. The matters pertinent to

these findings include:

(A) the class members' interests in individually controlling the

prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy

already begun by or against class members;

(C) the desirability or undesirability of concentrating the litigation of

the claims in the particular forum; and

(D) the likely difficulties in managing a class action.

Fed. R. Civ. P. 23(b).

Parties seeking class certification frequently rely upon Rule 23(b)(3)’s

“predominance” requirement to satisfy their burden of proof and persuasion under

Rule 23(b). “ ‘To assess predominance, a court ... must examine each element of a

legal claim through the prism of Rule 23(b)(3)’ by determining whether each

element is ‘capable of proof at trial through evidence that is common to the class

rather than individual to its members.’ ” In re Suboxone (Buprenorphine

Hydrochlorine & Naloxone) Antitrust Litig., 967 F.3d 264, 269 (3d Cir. 2020)

(citations omitted). Therefore, “[t]he predominance requirement ‘asks whether the

common, aggregation-enabling, issues in the case are more prevalent or important

than the non-common, aggregation-defeating, individual issues.’ ” Ferreras, 946

F.3d at 185. In practice:

The commonality and predominance requirements are closely

linked. But the Rule 23(b)(3) predominance requirement is “far more

demanding than the commonality requirement” found in Rule 23(a). In

re Hydrogen Peroxide, 552 F.3d at 311 (internal quotation marks

omitted). In fact, “where an action is to proceed under Rule 23(b)(3),

the commonality requirement is subsumed by the predominance

requirement.” Danvers Motor Co., Inc. v. Ford Motor Co., 543 F.3d

141, 148 (3d Cir. 2008) (internal quotation marks omitted). If the

commonality requirement cannot be met, then the more

stringent predominance requirement obviously cannot be met

either. Cf. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623-24, 117

S.Ct. 2231, 138 L.Ed.2d 689 (1997) (“Even if Rule 23(a)’s

commonality requirement may be satisfied. . . , the predominance

criterion is far more demanding.”).

Id.

Finally, when making a class certification determination, we are enjoined that:

Class “certification is proper only if the trial court is satisfied, after a

rigorous analysis” that all of the necessary Rule 23 requirements have

been fulfilled. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-51,

131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). The Rule “does not set forth

a mere pleading standard.” Id. at 350, 131 S.Ct. 2541. . . . A rigorous

analysis requires that factual determinations be made by a

preponderance of the evidence. Mielo v. Steak ‘n Shake Operations,

Inc., 897 F.3d 467, 483-84 (3d Cir. 2018). Thus, although a trial court

has “broad discretion to control proceedings and frame issues for

consideration under Rule 23[,]” “a class may not be certified without a

finding that each Rule 23 requirement is met.” In re Hydrogen

Peroxide, 552 F.3d at 310. Prior to certifying a class, a district court

must resolve every dispute that is relevant to class certification. Id. at

320.

Id. at 183.

This exacting burden for class certification means that class certification

decisions cannot rest upon speculation or supposition. Instead, the scope and nature

of the proposed class must be readily ascertainable based upon the evidence. In this

regard: “[i]n determining whether the ascertainability requirement is satisfied, [the

court] must determine that the plaintiff has (1) ‘defined [the class] with reference to

objective criteria,’ and (2) identified a ‘reliable and administratively feasible

mechanism for determining whether putative class members fall within the class

definition.’ ” Kelly v. RealPage Inc., 47 F.4th 202, 222 (3d Cir. 2022).

C. The Motion for Class Certification will be Granted.

Over time, the plaintiffs’ descriptions of the putative class which they seek to

certify have shifted somewhat. To some degree these changing class descriptions

have responded to what the plaintiffs have perceived to be revisions in the state’s

transfer plans. Specifically, these revised proposed class definitions have reflected

an increased awareness by the plaintiffs of the changed focus in this litigation from

a binary choice between state-run ICF and community or home placements, to a

more multi-facetted series of care options including both state and private ICFs as

well as home and community resources.

The current iteration of the proposed class definition is as follows:

All current and future residents of White Haven Center and Polk Center

who are not on the Planning List and who do not want to be placed in a

“community” setting or in another ICF because they believe that their

current placements at Polk Center or at White Haven Centers are the

least restrictive environments that are available that can meet all their

needs.

(Doc. 146, at 22). In the course of the hearing we conducted in this case, Kevin

Dressler, the Director of the Bureau of State Operated Facilities for ODP, testified

regarding the size and scope of this proposed class stating that seventy-seven

individuals had been identified as members of this putative class. The parties’ pre-

hearing submissions, in turn, provided varying, but numerically significant,

estimates of the number of putative class plaintiffs in this case. For example,

plaintiffs’ counsel has estimated that number as falling between 80 and 100

individuals. The defendants’ pre-hearing memorandum contained a more modest,

but still significant, estimate of approximately 50 putative plaintiffs who fit this class

definition. (Doc. 145, at 2-3).

Having conducted the rigorous legal and factual analysis mandated by law,

upon consideration we find that the plaintiffs’ proposed class satisfies the requisites

of Rule 23. Therefore, we will grant this motion for class certification.

Turning first to the threshold class certification requirement of numerosity,

we acknowledge that a numerosity determination is not merely an exercise in

arithmetic. Rather, we must assess both the number of putative class members and

the feasibility of joinder of the individual plaintiffs when evaluating numerosity. On

this score, “[w]e presume joinder is impracticable when the potential number of class

members exceeds forty.” Allen, 37 F.4th at 895–96. However, it is also well settled

that: “This is a guidepost: showing the number of class members exceeds forty is

neither necessary nor always sufficient.” Id. Judged by these guideposts, we find that

Rule 23’s numerosity requirement is fully satisfied here. Indeed, there is a consensus

among all parties that the number of putative class members well exceeds forty, the

presumptive numerosity benchmark prescribed by the Court of Appeals. Moreover,

while the Commonwealth argues that joinder of all putative plaintiffs is not

impossible and decry the failure of putative class members to join this lawsuit at

earlier stages of the litigation, we find that the number of potential plaintiffs—which

may well exceed 80—makes individual joinder a cumbersome and unwieldy

process. Further, we decline the defendants’ invitation to draw some sort of adverse

inference from the failure of individuals to join the lawsuit at an earlier stage of the

litigation because we believe that these putative class members could have

reasonably elected to await a class certification ruling from the court before choosing

this course.

In addition, while we find that the scope of the putative class has not been

precisely defined, we conclude that the size of this class is clearly ascertainable. On

this score: “[i]n determining whether the ascertainability requirement is satisfied,

[the court] must determine that the plaintiff has (1) ‘defined [the class] with reference

to objective criteria,’ and (2) identified a ‘reliable and administratively feasible

mechanism for determining whether putative class members fall within the class

definition.’ ” Kelly, 47 F.4th at 222. Here, we are presented with a finite universe of

potential class members, the approximately 158 current residents at Polk Center and

White Haven Center. Moreover, the class definition relies upon objective criteria to

determine the full scope of the class; namely, identifying class plaintiffs as persons

who are not on the Planning List and who do not want to be placed in a community

setting or in another ICF because they believe that their current placements at Polk

Center or at White Haven Center are the least restrictive environments that are

available that can meet all their needs. Therefore, the proposed class, while not yet

fully ascertained, is completely ascertainable.

Recognizing that the primary purpose of Rule 23(a)’s adequacy requirement

is “to determine whether the named plaintiffs have the ability and the incentive to

vigorously represent the claims of the class[]” In re Cmty. Bank of N. Va. Mortg.

Lending Pracs. Litig., 795 F.3d at 393, we further find that this prerequisite for class

certification is also fully satisfied here. Plaintiffs’ counsel is highly skilled and fully

informed regarding the law in this field, the plaintiffs’ claims, and the factual

underpinnings of this litigation. Moreover, no conflicts among or between members

of this proposed class have been identified for us. Indeed, we note that the defendants

have conceded that this class certification requirement is satisfied given plaintiffs’

counsel’s skill and tenacity. Thus, Rule 23’s adequacy requirement is met in the

instant case.

In our view, the issue of whether there are common class claims that

predominate over the individual concerns of specific class members presents a

somewhat closer question. To be sure, each resident at Polk Center and White Haven

Center presents with a very specific and unique set of physical, mental, emotional,

and social concerns all of which must be considered when making care and

placement decisions. Yet, these individual qualities, while doubtless important for

specific care decisions, are subordinated to a large array of common interests in the

context of this litigation which seeks to forestall the closure of Polk Center and

White Haven Center. With respect to the question of whether federal law authorizes

the court to order these state-run facilities to remain open, the common interests of

the plaintiffs as a class predominate. All putative class members reside at these

facilities. Indeed, in many instances Polk Center and White Haven Center have been

the plaintiffs’ homes for decades and may be the only home they have ever known.

Further, all of the putative class members would suffer similar harms were the

facilities to be closed. These are material, common elements to the claims of all

putative class members. Recognizing that Rule 23’s commonality analysis and

“[t]he predominance requirement ‘asks whether the common, aggregation-enabling,

issues in the case are more prevalent or important than the non-common,

aggregation-defeating, individual issues[]’ ” Ferreras, 946 F.3d at 185, we find that

these common interests have greater weight and predominance in this case where

we are invited to make a determination regarding whether federal law compels the

state to operate these specific ICFs even though other comparable state-run ICFs are

able to accommodate the plaintiffs.

Finally, concluding that these common interests of the putative class

predominate over their individualized concerns, we also find that Rule 23’s

typicality requirement is satisfied here. As we have noted, “[t]he requirement

of typicality is imposed to prevent certification when ‘the legal theories of the named

plaintiffs potentially conflict with those of the [class] absentees.’” Boley, 36 F.4th

at 133. Moreover, in practice there is often a significant overlap between Rule

23(a)’s commonality and typicality criteria. Amchem Prod., Inc., 521 U.S. at 626.

So it is here. The named plaintiffs’ concerns regarding transfers of these residents

from Polk Center and White Haven Center are typical of the common concerns of

all class members. Therefore, a rigorous analysis of Rule 23’s class certification

requirements weighs in favor of class certification in this case.

We note that we are not alone in finding that a class of intellectually disabled

persons who may allegedly suffer a common injury due to some state action may be

properly certified under Rule 23. Quite the contrary, courts that have considered

similar putative class claims have frequently certified these cases as class actions.

See e.g., Frederick L., 364 F.3d at 489; S.R., by & through Rosenbauer v.

Pennsylvania Dep't of Hum. Servs., 325 F.R.D. 103, 105 (M.D. Pa. 2018). Therefore,

we will certify this case as a class action.

D. Preliminary Injunctions – The Legal Standard

Having decided that this case is properly brought as a class action, we turn to

the question of whether the plaintiffs are entitled to a preliminary injunction.

Motions for preliminary injunctions are governed by Federal Rule of Civil Procedure

65 and are judged by exacting legal standards. In order to obtain a preliminary

injunction, the moving party must show (1) a substantial likelihood of success on the

merits; (2) irreparable injury to the moving party if relief is not granted; (3) that a

balance of equities favors the movant’s request for injunctive relief; and (4) that a

preliminary injunction is in the public interest. Benisek v. Lamone, 138 S. Ct. 1932,

1943-44 (2018) (quoting Winter v. Natural Resources Defense Council, Inc., 555

U.S. 7, 24 (2008)). The first two elements are critical, and are set forth in the

conjunctive, as the Court of Appeals for the Third Circuit has held that “[a] failure

to show a likelihood of success or a failure to demonstrate irreparable injury must

necessarily result in the denial of a preliminary injunction.” Instant Air Freight, Co.

v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir. 1989) (quoting In Re Arthur

Treacher’s Franchisee Litigation, 689 F.2d 1137, 1143 (3d Cir. 1982) (internal

quotations omitted)). In this regard, it is well settled that:

The movant must, as a threshold matter, establish the two “most

critical” factors: likelihood of success on the merits and irreparable

harm. Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017).

Under the first factor, the movant must show that “it can win on the

merits.” Id. This showing must be “significantly better than negligible

but not necessarily more likely than not.” Id. The second factor carries

a slightly enhanced burden: the movant must establish that it is “more

likely than not” to suffer irreparable harm absent the requested

relief. Id. Only if these “gateway factors” are satisfied may the court

consider the third and fourth factors, which aim to balance the equities

by examining the potential for harm to others if relief is granted and

whether the public interest favors injunctive relief. Id. at 176, 179. The

court must then balance all four factors to determine, in its discretion,

whether the circumstances warrant injunctive relief. Id. at 179.

Camacho Lopez v. Lowe, 452 F. Supp. 3d 150, 157 (M.D. Pa. 2020).

In weighing these factors, we are cautioned that: “How strong a claim on the

merits is . . . depends on the balance of the harms: the more net harm an injunction

can prevent, the weaker the plaintiff's claim on the merits can be while still

supporting some preliminary relief.” Reilly v. City of Harrisburg, 858 F.3d 173, 179

(3d Cir. 2017) (citations omitted). Ultimately, with respect to this threshold

preliminary injunction showing of a likelihood of success on the merits what is

called for is “a reasonable probability of eventual success.” Id., n. 3.

Further, a preliminary injunction is “never awarded as of right.” Benisek, 138

S. Ct. at 1943. Rather, when considering a motion for a preliminary injunction, we

are reminded that “a preliminary injunction is an extraordinary and drastic remedy,

one that should not be granted unless the movant, by a clear showing, carries the

burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (quoting

11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948, pp.

129–130 (2d ed. 1995)). As such, the Third Circuit has long observed that “upon an

application for a preliminary injunction to doubt is to deny.” Madison Square Garden

Corp. v. Braddock, 90 F.2d 924, 927 (3d Cir. 1937).

Our assessment of a motion for preliminary injunction entails a threefold

analysis. First, we must draw legal conclusions regarding the viability of the

plaintiffs’ claims. We must then make factual determinations regarding the harms

that may result from the grant or denial of the injunction. Finally, we engage in an

exercise of sound discretion in deciding whether to issue some extraordinary form

of injunctive relief under the applicable law and facts. Each of these determinations,

in turn, is subject to a different standard of review on appeal. Thus, “[w]hen

reviewing a district court's [resolution] of a preliminary injunction, [the court of

appeals] review[s] the court's findings of fact for clear error, its conclusions of law

de novo, and the ultimate decision ... for an abuse of discretion.” Reilly, 858 F.3d at

176 (quoting Bimbo Bakeries USA, Inc. v. Botticella, 613 F.3d 102, 109 (3d Cir.

2010)).

E. The Motions for Preliminary Injunction will be Denied.

1. The Plaintiffs Have Not Demonstrated a Substantial

Likelihood of Success on the Merits.

In our view, the plaintiffs’ motions for preliminary injunction founder upon

the first obstacle they must meet, Rule 65’s requirement that the movants show a

substantial likelihood of success on the merits. To clear this hurdle the plaintiffs

must show “a reasonable probability of eventual success.” Reilly, 858 F.3d at 179 n.

3. 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 Center 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 relief sought here is truly unprecedented. Moreover, granting this relief

would require us to contravene and set aside a state statute which specifically

authorizes the transfer of patients between state facilities. Such a course should not

be taken lightly. Further, we believe that the plaintiffs’ claims stem from a factual

misunderstanding regarding the state’s proposed course of action, as well as a

fundamental misreading of the seminal Olmstead decision.

First, as a factual matter much of the plaintiffs’ case and requests for

preliminary injunction rests upon a straw man argument, the assertion that the state

is attempting to compel all residents at Polk Center and White Haven Center into

medically inappropriate community settings. This simply is not the case. Instead,

the Commonwealth is currently offering to work with families to facilitate either (1)

a community placement; (2) a transfer to a private ICF; or (3) a transfer to one of the

remaining state operated ICFs. Moreover, it is clear that the remaining ICFs have

the capacity to fully accommodate all putative class members in an ICF setting.

Thus, the options offered by the Commonwealth precisely parallel one form of relief

sought by the plaintiffs in their complaint; namely, the opportunity “to receive

treatment in accordance with the independent recommendations of the

multidisciplinary evaluation, either at his/her current residence, another state

operated ICF/IID facility, or non-ICF/IID certified setting, as each Plaintiff deems

appropriate.” (Doc. 1, ¶ 128(b)(ii)). Further, while we find that the various state ICFs

are not identical, we conclude that in their material respects they are comparable,

and state officials have pledged to ensure that individual needs are accommodated

to the greatest extent possible. On these facts, the plaintiffs cannot show a substantial

likelihood that they are entitled to enjoin these transfers and compel the state to keep

Polk Center and White Haven Center open indefinitely.

Nor can Olmstead and its progeny be read to confer a right upon the plaintiffs

to command this course of action by the state. Quite the contrary, while Olmstead

allowed disabled persons a limited degree of autonomy in determining the level of

their care, subject to the exercise of medical judgment and reasonable practical

constraints, 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 care options.

Moreover, a rising tide of case law has rejected the arguments advanced here

and refused to enjoin states from closing institutions and transferring persons to other

comparable facilities. See e.g., Ricci, 544 F.3d 8 (denying request to reopen consent

decree to enjoin state transfers of residents from one state facility to another as part

of a closure plan); Lane, 2014 WL 2807701, at *3 (“[N]either the ADA nor the

Rehabilitation Act creates a right to remain in the program or facility of one’s

choosing”); D.T, 2017 WL 2590137, at *7-8 (denying a preliminary injunction and

holding that the plaintiffs were not likely to succeed on their claim that the closure

of an ICF and placement of a resident into a community setting “would violate the

integration mandate of the ADA and Rehabilitation Act and result in unlawful

discrimination”).

Simply put, this unprecedented application for extraordinary injunctive relief

goes far beyond anything that has been recognized by the courts; is inconsistent with

state law; and is unsupported by federal statutory or case law. Accordingly, we

cannot conclude that these requests for preliminary injunction are supported by “a

reasonable probability of eventual success.” Reilly, 858 F.3d at 179 n. 3. Finding

that this threshold requirement for Rule 65 relief is not satisfied, we will deny these

motions for injunctive relief.

2. The Balancing of the Remaining Rule 65 Factors Does Not

Favor Extraordinary Injunctive Relief.

While our determination that the plaintiffs have not shown a likelihood of

success on the merits forecloses preliminary injunctive relief at this time, since “[a]

failure to show a likelihood of success or a failure to demonstrate irreparable injury

must necessarily result in the denial of a preliminary injunction,” Instant Air Freight,

Co., 882 F.2d at 800, we are addressing the remaining Rule 65 factors. We follow

this course because we are inviting the parties to seek further review of this decision

if they choose, and we believe that a more fulsome discussion made aid all in

assessing this vitally important question.

Turning first to the potential for harm to the plaintiffs, we find that any

transfers of this largely elderly, and fragile, population may potentially result in

significant transfer trauma for some residents of Polk Center and White Haven

Center. Transfer trauma is a real and universally recognized phenomenon and the

intellectually disabled, who rely upon continuity to maintain their emotional

moorings, are particularly susceptible to this trauma. Therefore, we concede that this

course of action creates a real risk of some degree of harm to some members of this

population, even though the state’s proposed collaborative, inter-disciplinary

approach to these transfers is designed to minimize this trauma.16

Nonetheless there are other countervailing considerations and concerns

regarding the prospects of other harms to the 158 residents at Polk Center and White

16 During closing arguments at this preliminary injunction and class certification

hearing, the plaintiffs endeavored to identify another potential harm which they have

suffered, arguing that they were irreparably injured by the alleged failure of the

defendants to make more fulsome discovery. We have given this argument only

modest weight in our consideration of the pending preliminary injunction motions

for several reasons.

First it has been represented without contradiction that the defendants have produced

some 32,600 pages of material in the course of discovery. Given the reported scope

of this discovery, we simply are not in a position to assess the degree to which any

harm has been visited upon the plaintiffs.

Second, we note that the docket is devoid of any motions seeking to compel further

discovery from the defendants. Thus, we are not presented with a timely, well-

documented, and more complete effort to secure additional discovery. Instead, the

issue of alleged discovery defaults was presented to us at the close of the preliminary

injunction and class certification hearing in the form of argument by counsel.

Third, as a practical matter preliminary injunctions are routinely sought by parties at

a time when discovery is not complete. Therefore, typically the alleged failure to

provide complete discovery would not, standing alone, constitute an unusual

circumstance which would compel relief for the movant.

Yet while we have not endeavored to factor these discovery questions into our

analysis of the merits of these preliminary injunction motions, we urge all parties to

promptly notify us of any previously undisclosed and unresolved discovery issues

so we can work cooperatively with counsel to address these outstanding questions.

Haven Center as well as to the larger intellectually disabled community throughout

Pennsylvania. In short, while following this course and closing Polk and White

Haven presents a risk of harm, failing to act leads to other real and identifiable harms.

These harms include the risk that the Polk Center residents may be exposed to the

legionella, which persists at this facility. In addition, as the population housed at

Polk Center and White Haven Center inevitably ages and declines, the essential

community quality of those facilities inevitably deteriorates, leading to a loss of the

socialization which the residents have enjoyed in the past. These, too, are real

physical and emotional harms which could flow from a failure to consolidate these

facilities.

Finally, as we have noted, maintaining these facilities for an indefinite time

into the future at a projected annual cost of $21,000,000 has a profoundly adverse

impact upon the entire 57,000 person community of intellectually disabled

individuals who qualify for ICF level of care in Pennsylvania. Since the closure of

these facilities would enable the state to use these moneys to fund other state

programs and services, the issuance of a preliminary injunction would compel the

state to maintain Polk Center and White Haven Center at an annual estimated cost

of $21,000,000 for the benefit of a shrinking population of 158 persons, instead of

closing these underpopulated centers, and reallocating $21,000,000 annually to

address the needs of the other 57,000 Pennsylvanians who confront the challenges

of intellectual disabilities daily.

Thus, the balancing of these countervailing public and private interest reveals

a Hobson’s choice, a necessary choice between competing, imperfect options, each

of which entails some significant risk of harm. Mindful that the exercise of our

discretion in this field is guided by the concept that: “How strong a claim on the

merits is . . . depends on the balance of the harms: the more net harm an injunction

can prevent, the weaker the plaintiff's claim on the merits can be while still

supporting some preliminary relief[]” Reilly, 858 F.3d at 179, we find that the harms

that may flow from denying a preliminary injunction are largely offset by the harms

that would flow from granting this unprecedented preliminary injunction. In this

setting, where the competing equities stand in equilibrium, we are reminded that

“upon an application for a preliminary injunction to doubt is to deny.” Madison

Square Garden Corp., 90 F.2d at 927. Therefore, the plaintiffs’ motions for

preliminary injunction will be denied.17

17 In denying these motions we note that one remaining speculative concern voiced

by the plaintiffs was a fear that the Ebensburg and Selinsgrove Centers would also

be closed by the state at some time in the future. This concern, however, was

advanced without any supporting evidence and the state officials who testified

uniformly indicated that there were no current plans to close either of these facilities

while candidly acknowledging that they could not speak for future administrations.

In the absence of any proof we cannot base a preliminary injunction upon speculation

regarding what may take place in the future. Instead, we can only address those

F. Appealability

As we reach these conclusions, we recognize that for all parties there is a sense

of urgency to this litigation, coupled with a need for finality. Recognizing these dual

and competing impulses, we encourage any party aggrieved by our rulings to seek

further review of these decisions.

On this score at this juncture we believe that the denial of preliminary

injunction relief can be appealed immediately under 28 U.S.C. § 1292(a)(1). Section

1292(a)(1) provides that “the courts of appeals shall have jurisdiction of appeals

from: (1) Interlocutory orders of the district courts of the United States … granting,

continuing, modifying, refusing or dissolving injunctions . . . .” 28 U.S.C. §

1292(a)(1). According to section 1292(a)(1), the portions of our order denying these

preliminary injunctions is appealable because it is a recognized exception to the

basic rule that interlocutory orders are not appealable. Kershner v. Mazurkiewicz,

670 F.2d 440, 448-49 (3d Cir. 1982); Hoxworth v. Blinder, Robinson & Co., Inc.,

903 F.2d 186, 208 (3d Cir. 1990) (“The order granting a preliminary injunction was

immediately appealable, however.”). Further, while the class certification portion of

the order may not be reviewable under § 1292(a)(1), an interlocutory appeal of this

class certification decision is permitted under Rule 23(f) of the Federal Rules of Civil

concerns if and when they become real. See D.T. v. Armstrong, 2017 WL 2590137,

at *9

Procedure. Rule 23(f) provides that: “A court of appeals may permit an appeal from

an order granting or denying class-action certification under this rule, but not from

an order under Rule 23(e)(1).” Fed. R. Civ. P. 23(f).

IV. Conclusion

We conclude this opinion as we began, with an acknowledgment that

demographic factors beyond the control of all parties present a series of intractable

challenges for all, challenges thrust upon the parties by the imperfect nature of the

available alternatives. In this decision we have endeavored to steer the path dictated

by the law based upon the facts before us, but we recognize that the difficult dilemma

presented to the parties means that no easy solutions exist in this litigation.

However, we commend one thought to all parties. Sometimes litigation

highlights what separates us, emphasizing the scope of our disagreement. But often,

upon reflection, we may see that we share some common ground. In this case, the

parties have many profound disagreements regarding how best to meet the needs of

the remaining residents at Polk Center and White Haven Center, but both the state

officials who care for these individuals, and the family members who deeply care

about their loved ones, share a common interest in doing what is best for these

individuals. Therefore, even as the parties litigate the issues which divide them, we

urge all parties to endeavor to work cooperatively in ensuring to the best of their

abilities that these plaintiffs have lives that are safe and marked by dignity.

An appropriate order follows.

/s/ Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge

DATED: November 2, 2022

APPENDIX A

Summary of Lay Witness Testimony

at Hearing on Class Certification and Preliminary Injunction

Kathryn Miller

Kathryn Miller testified on behalf of her son, Joshua Miller, a resident of Polk

Center since December 2010. Joshua was diagnosed with autism, is nonverbal, and

suffers from explosive behaviors. He also has a plethora of life-threatening food

allergies. Joshua lived with his mother until he was admitted to Western Psychiatric

in March of 2010. Joshua stayed at Western Psychiatric for five months, during

which time Ms. Miller visited him every day. He was eventually released to a group

home, where he began to exhibit explosive and destructive behaviors to the extent

that the home requested Ms. Miller remove her son from that setting. Joshua was

again admitted to Western Psychiatric but was ultimately released in October 2010.

Following an incident at Barnes N’ Noble, during which Joshua had a “meltdown”

and 9-1-1 was called, Joshua was taken to the psychiatric ward at St. Clair hospital,

after which he received court-ordered admission to Polk Center.

Ms. Miller testified that Joshua has done well at Polk Center. He has a very

extensive Individual Support Plan (“ISP”), which includes a cooking program due

to his multiple life-threatening food allergies. Joshua is able to function somewhat

independently at Polk Center, including doing his own laundry. Ms. Miller further

testified that Joshua’s residence at Polk Center, which is an apartment-like setting,

enables him to have his own refrigerator so that he can avoid any potential contact

with foods he is allergic to. Overall, Ms. Miller believes that Polk Center saved her

son’s life.

Susan Jennings

Susan Jennings testified on behalf of her son, Russell “Joey” Jennings, the

lead named plaintiff and a resident of White Haven Center. Joey, who is now 29

years old, was diagnosed with developmental delay and autism at a young age, after

he began displaying behavioral meltdowns, as well as injurious behavior toward

himself and others. His behavior was so concerning that Joey’s father would take

him on business trips to alleviate any concerns regarding Mrs. Jennings’ safety. Mrs.

Jennings testified that she finally called social services after an incident in which she

attempted to prevent Joey from harming himself and he pushed her to the ground.

After several failed placements in group home settings, where Joey was in and

out of psychiatric wards due to his behavior, Mrs. Jennings obtained a lawyer, and

Joey obtained court-ordered admission to White Haven Center. Mrs. Jennings stated

that Joey has been “thriving” since his admission to White Haven Center.

Joseph Lambo

Joseph Lambo testified on behalf of his daughter, Beth Lambo, who is a

named plaintiff and a resident of Polk Center since 1969. Mr. Lambo testified that

Beth displayed abnormal behavior, such as banging her head on things, from the

time she was 8 months old. Mr. Lambo stated that he and his wife became concerned

when Beth’s sibling started emulating her self-injurious behavior. Beth was

diagnosed with autism by the Children’s Hospital of Pittsburgh, and she was

admitted to Polk Center in December of 1969 after an emergency hearing. Since her

placement at Polk Center, Beth has been diagnosed as nonverbal autistic and has

atypical bipolar disorder symptoms, and she suffers from various physical conditions

as well.

Mr. Lambo testified that Polk Center is able to give Beth the one-on-one care

that she needs, which entails 24/7, around the clock care, in order to prevent Beth

from harming herself. Beth’s caregivers are able to read her body language and

nonverbal cues in order to determine her needs, and Mr. Lambo testified that he was

very pleased with the continuity of care Beth has received at Polk Center for over 53

years.

Kimberly Schroeder

Kimberly Schroeder testified on behalf of her daughter, Amanda, a resident

of Polk Center. Amanda’s behavioral issues began when she was one year old, and

she was diagnosed with autism and intellectual disabilities at the age of two.

Amanda, who was initially nonverbal, gained the ability to speak at 5 years old with

assistance she received from the Barber Center, and Ms. Schroeder testified that

Amanda lived a relatively normal life until she was 12 years old. At that point,

Amanda’s behavior became aggressive, angry, and injurious to herself and her

siblings.18 Ms. Schroeder testified that Amanda was hospitalized 18 times in a 15-

month period. The Barber Center took Amanda in, but after several instances in

which Amanda was assaultive toward staff, which at one time resulted in criminal

charges, Amanda was admitted to Western Psychiatric and ultimately Polk Center.

Since her placement at Polk Center, Ms. Schroeder stated that Amanda’s

behavior has improved, she has fewer behavioral outbursts, she is happy, and she is

able to safely make home visits with staff from the Polk Center.

Robin Mason

Robin Mason testified on behalf of her aunt, Linda Tregellas, a resident of

White Haven Center since in 1965. Ms. Mason became a co-guardian of Linda in

2009. Linda was diagnosed at the young age of 18 months old with profound

intellectual disabilities with her ISP indicating she has the mental capacity of a two-

or three-year-old. She also suffers from dissociative identity disorder.

Linda was placed at White Haven Center in 1965, where she has resided since.

Ms. Mason testified that since Linda’s placement at White Haven Center, she has

been able to attend various field trips with White Haven Center staff, such as going

18 Ms. Schroeder testified that she has six children, three of which, including

Amanda, have been diagnosed with autism and other intellectual and medical

disabilities.

to plays and movies, and going shopping and for milkshakes. Ms. Mason testified

that despite Linda’s disabilities, she is leading a happy and fulfilled life.

Luciana Dudich

Luciana Dudich testified on behalf of her brother, Rinaldo Scruci, a named

plaintiff in this case and a resident of Polk Center since 1964. Rinaldo was diagnosed

at a young age with extreme cerebral palsy, and he lived at home until he was nine

years old. At that time, there was an incident that led his parents to be concerned for

the safety of Rinaldo’s younger brother. Rinaldo was admitted to Polk Center in

December of 1964 and has resided there since.

Ms. Dudich testified that Rinaldo works on a loom at Polk Center with his

friend John and makes rugs. Ms. Dudich stated that the staff at Polk Center are

particularly helpful regarding Rinaldo’s ability to feed himself. Rinaldo has attended

several field trips with the staff at Polk Center, including going to church, baseball

games, and other events.

Arthur Ciullo

Aurthur Ciullo testified on behalf of his son Gabriel, a resident of White

Haven Center for the past 44 years. Gabriel is nonverbal, and at eleven years old,

Gabriel was placed in a group home setting. However, Gabriel engaged in self-

injurious behaviors, and after three years in this group home, his parents were told

that the group home could no longer provide Gabriel with the services he needed.

Gabriel was admitted to White Haven Center in 1978.

Mr. Ciullo testified that Gabriel wears a helmet and hand pads, is nonverbal,

and has lost his ability to walk. Mr. Ciullo stated that his son has the mental capacity

of a one-year-old. Mr. and Mrs. Ciullo visit their son regularly at White Haven

Center, and Mr. Ciullo stated that Gabriel has improved since his placement at White

Haven Center.

Ann D’Amico

Ann D’Amico testified on behalf of her cousin, Rosemary “Rosie” Delaney,

a resident of White Haven Center. Ms. D’Amico testified that Rosie has severe

cerebral palsy and is profoundly intellectually disabled. She is also wheelchair bound

and nonverbal. Rosie’s parents passed away in 1963 and 1975, and in 1975, Rosie

was admitted to White Haven Center when she was 32 years old.

Rosie, who is now 79 years old, has done well at White Haven Center, and

she is very fond of the staff that have taken care of her since her admission in 1975.

White Haven Center regularly plays polka music, which is Rosie’s favorite, and

Rosie enjoys the many activities that White Haven Center is able to provide.

Georgine Jorda

Georgine Jorda testified on behalf of her sister, Maureen, a resident of White

Haven Center. Maureen suffers from cerebral palsy due to an incident during her

birth. She cannot walk and she is nonverbal. Maureen was in an automobile accident

at the age of 5, and also during her childhood she underwent a surgery in hopes of

helping her walk that did not go as planned and had detrimental results. In April of

1970, when she was 13 years old, Maureen was admitted to White Haven Center,

where she has resided since.

In addition to her developmental disabilities, Maureen also suffers from

several physical impairments, including lung disease and osteoporosis, and she is on

a feeding tube. Maureen’s only interests are family and music. Ms. Jorda testified

that the staff at White Haven Center understand Maureen’s nonverbal cues and have

given her great care for the 52 years she has resided there.

Carol Jean Boord

Carol Boord testified on behalf of her sister, Joyce Shibilsky, a resident of

Polk Center since 2008. Ms. Boord testified that Joyce lived at home until she was

about 8 years old, when she was placed into a facility due to her disabilities. Joyce

was moved around to several facilities, and she was eventually placed at Ebensburg

Center, where she resided for about 30 years. Ms. Boord stated that toward the end

of Joyce’s stay at Ebensburg Center, there were incidents which resulted in Joyce’s

placement at Western Psychiatric for a period of time. When she returned to

Ebensburg Center, Joyce had lost her ability to ambulate, and she had lost weight.

After another placement in Western Psychiatric, Joyce was ultimately placed at Polk

Center in 2008.

Following her placement at Polk Center, Joyce regained her ability to

ambulate, and she gained weight. Ms. Boord testified that Joyce has a good quality

of life at Polk Center, and that the staff is able to deal with her change in moods, as

well as her physical needs.

Beverly Sea

Beverly Sea testified as the co-guardian of her cousin, Deborah “Debbie”

Gissindanner, a resident of White Haven Center. Ms. Sea testified that Debbie was

placed in White Haven Center when she was 12 years old due to her profound

intellectual disabilities and cerebral palsy. Ms. Sea stated that Debbie would wander

off and her family would be unable to find her at times. Debbie has been a resident

of White Haven Center for 59 years.

Ms. Sea testified that initially, Debbie would have home visits with her family,

but that Debbie was more comfortable at White Haven Center, so her family began

to visit her there instead. At White Haven Center, Debbie is engaged in activities,

and Ms. Sea testified that she attended camp prior to the Covid-19 pandemic. Ms.

Sea stated that she always brings fried chicken and a radio when she visits Debbie

at White Haven Center, two of Debbie’s favorite things. While Debbie is currently

wheelchair bound, Ms. Sea testified that she is engaged and living a full life at White

Haven Center.

Deborah Blake

Deborah Blake testified on behalf of her sister, Juliette “Julia” Papay, a

resident of White Haven Center. Julia is profoundly intellectually disabled, with an

IQ of 20, and suffers from anxiety disorder. She is also a breast cancer survivor. Ms.

Blake testified that Julia lived at home until she was 18 years old. She was taken

care of by a nanny, and when the nanny passed away, she was placed in the Hamburg

Center and ultimately placed at White Haven Center in 2018.

While she has resided at White Haven Center, Julia has been able to go to

plays, including a Christmas musical. Ms. Blake testified that Julia’s family is able

to visit her at White Haven Center, and that Julia has lived a wonderful life since she

was placed at White Haven Center.

Elizabeth Fry

Elizabeth Fry testified on behalf of her son, Douglas Fry, a resident of Polk

Center. Ms. Fry testified that Doug spoke normally until about age 3, when he began

making noises and staring at the ceiling. She stated that around puberty, Doug

became violent and would attack others, including her. Ms. Fry testified that Doug

would grab her hair and slam her head, and that on one occasion, he bit her so hard

she ended up in the hospital. Initially, Doug was placed in group homes, but he was

eventually placed in Polk Center in 1990.

Ms. Fry stated that following his placement at Polk Center, Doug participated

in activities with his brother, who was also a resident there. She testified that the

staff at Polk Center were able to care for Doug, in that they would not allow him to

hurt other people or destroy things. Ms. Fry believes that Polk Center has been

successful in helping Doug.