# Jennings v. Wolf

> District Court, M.D. Pennsylvania · November 2, 2022

URL: https://www.frixlaw.com/law-library/cases/10412461

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** November 2, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10412461

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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 W

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10412461. Public record. Not legal advice.