explaining that the “most integrated setting” requirement is not satisfied when individuals effectively are forced to remain in their homes due to their disabilities and reasoning that “[i]f [the text of the regulation] stick[s] a knife in the state’s argument, the DOJ guidelines twist it”
How later courts described this case
- explaining that the “most integrated setting” requirement is not satisfied when individuals effectively are forced to remain in their homes due to their disabilities and reasoning that “[i]f [the text of the regulation] stick[s] a knife in the state’s argument, the DOJ guidelines twist it”
- finding that a state violates the ADA when it refuses to provide an existing benefit to a disabled person that would enable that individual to live in a more community-integrated setting
- employing the pre-Kisor standard that “we defer to an agency’s interpretation of its own regulation unless the agency’s interpretation is plainly erroneous or inconsistent with the regulation or there is reason to suspect that the agency’s interpretation does not reflect the agency’s fair and considered judgment on the matter in question” (quotations and citation omitted)
- denying certification of a (b)(2) class that sought an injunction ordering defendants to provide notice and particular services to class members because, without a sufficiently ascertainable class, the court “would not be able to say who should receive notice, be bound by the judgment, and . . . share in any recovery”
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐2377
KARLA STEIMEL,
Plaintiff‐Appellant,
and
THOMAS MAERTZ, et al.,
Intervening Plaintiffs‐Appellants,
v.
JOHN J. WERNERT, Secretary of the Indiana Family and Social
Services Administration, et al.,
Defendants‐Appellees.
____________________
No. 15‐2389
MICHAEL BECKEM AND LOIS BECKEM,
Plaintiffs‐Appellants,
v.
INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION, and
JOHN J. WERNERT, Secretary of the Indiana Family and Social
Services Administration,
Defendants‐Appellees.
____________________
2 Nos. 15‐2377 & 15‐2389
Appeals from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
Nos. 13‐cv‐00957, 14‐cv‐00668 — Jane E. Magnus‐Stinson, Judge.
____________________
ARGUED JANUARY 5, 2016 — DECIDED MAY 10, 2016
____________________
Before WOOD, Chief Judge, and KANNE and ROVNER, Circuit
Judges.
WOOD, Chief Judge. No one would accuse the Medicaid
program of simplicity. Our task in this appeal is to consider
whether Indiana has chosen an acceptable way to deliver cer‐
tain home‐ and community‐based services. It does so through
so‐called waiver programs that are operated by state Medi‐
caid agencies. The word “waiver” is used because the default
assumption under Medicaid is that these kinds of services will
be delivered in institutions. Congress has recognized, how‐
ever, that many people are better served by and prefer com‐
munity‐based care. For these people, it uses waiver programs
under which the state (and the federal government) will pick
up the tab.
The Indiana Family and Social Services Administration
(the Agency) runs three waiver programs relevant to this case:
the Aged and Disabled Medicaid Waiver Program (A&D
waiver), the Community Integration and Habilitation Medi‐
caid Waiver Program (CIH waiver), and the Family Supports
Medicaid Waiver Program (FS waiver). Importantly for our
case, the programs vary in how much money each client can
receive, what must be demonstrated to qualify for aid, and
who is entitled to assistance. Because Indiana has closed most
of its institutional facilities, these waiver programs serve the
Nos. 15‐2377 & 15‐2389 3
vast majority of people with disabilities in Indiana. The state’s
total institutional capacity can accommodate only one quarter
of the number of people on the CIH waiver alone.
Until 2011, the Agency placed many people with develop‐
mental disabilities on the A&D waiver, which has no cap on
services. That changed when the Agency decided that it had
not been adhering to certain A&D rules. In order to fix its mis‐
takes, it enacted a policy change that rendered many develop‐
mentally disabled persons, including the plaintiffs, ineligible
for care under the A&D waiver. These people were moved to
the FS waiver, under which they may receive services worth
no more than $16,545 annually. Developmentally disabled
people who were switched from the A&D waiver to the FS
waiver may apply for the CIH waiver, which is uncapped. But
not everyone qualifies for the CIH waiver, and so this possi‐
bility is an empty one for many.
The plaintiffs in the two cases we have consolidated for
disposition are developmentally disabled persons who were
moved from the A&D waiver to the FS waiver. They argue
that their new assignment violates the integration mandate of
the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101
et seq., because it deprives them of community interaction and
puts them at risk of institutionalization. They also seek class
certification.
The district court granted summary judgment to the de‐
fendants on the integration‐mandate claims and denied class
certification. We conclude that there is a genuine dispute of
material fact with respect to the individual claims based on
the integration mandate, and so judgment for the defendants
to that extent was premature. The district court did not abuse
4 Nos. 15‐2377 & 15‐2389
its discretion, however, in declining to certify the class, be‐
cause the proposed class is too vague.
I
A
In 1981, Congress enacted Section 1915(c) of the Social Se‐
curity Act (SSA), 42 U.S.C. § 1396n, which established the
Home and Community‐Based Care Waiver Program. See An‐
drew I. Batavia, A Right to Personal Assistance Services: “Most
Integrated Setting Appropriateʺ Requirements and the Independent
Living Model of Long‐Term Care, 27 AM. J.L. & MED. 17, 24
(2001). The program allowed states to diverge from the tradi‐
tional Medicaid structure by providing community‐based
services to people who would, under the traditional Medicaid
structure, require institutionalization. Its purpose was to
“provid[e] real choices and opportunities to control their lives
for individuals who wish to live in the community” and allow
deviation from Medicaid’s traditional “institutional bias.” Id.
Participating states have significant discretion in how they
craft their waiver programs. Nonetheless, the programs must
conform to several restrictions: the average annual cost of a
state’s waiver programs cannot exceed that of institutional
services, id.; states must inform eligible persons of their op‐
tions and allow those qualified to take advantage of waiver
slots up to the number available, id.; and states must comply
with the ADA’s integration mandate, which dictates that
states “shall administer services, programs, and activities in
the most integrated setting appropriate to the needs of quali‐
fied individuals with disabilities,” 28 C.F.R. § 35.130(d) (1998).
B
Nos. 15‐2377 & 15‐2389 5
States submit detailed applications for each waiver pro‐
gram to the Centers for Medicare and Medicaid Services
(CMS). CMS approves waiver programs for an initial term of
three years, after which it may re‐approve them for five‐year
periods. The A&D waiver, the FS waiver, and the CIH waiver
all fall under SSA § 1915(c), 42 U.S.C. § 1396n(c), and have
been approved by CMS. (That approval is not at issue here.)
The Agency oversees all of Indiana’s waiver programs,
through different subdivisions for each one.
Under Indiana law, the A&D waiver is meant “to provide
home‐ and community‐based services to individuals who, but
for the provision of such services, would require nursing fa‐
cility level of care.” The FS waiver provides “waiver services
to participants of any age residing in a range of community
settings as an alternative to care in an intermediate care facil‐
ity for individuals with intellectual disabilities … or related
conditions.” The CIH waiver provides services to a similar
population that meets additional criteria. While the FS waiver
caps services at $16,545 per year, there is no cap on services
under the A&D or CIH waivers. Different services are availa‐
ble under each waiver, and the rules for reimbursement vary
by program.
Waiver participants may also use services provided
through the state’s traditional Medicaid plan. These include
“prior‐authorization services,” which are services that the
state has pre‐approved as medically necessary. 405 IND.
ADMIN. CODE § 5‐3‐13. There is one type of prior‐authoriza‐
tion service relevant to this case: “home health services.” Id.
§ 5‐3‐13(a)(9). Home‐health services include “[s]killed nurs‐
ing,” “[h]ome health aid services,” “[p]hysical and occupa‐
6 Nos. 15‐2377 & 15‐2389
tional therapies,” “[s]peech pathology services,” “[r]enal dial‐
ysis,” and “[t]elehealth services.” Id. § 1‐4.2‐3(a). Home‐
health services, as the name suggests, “must be performed in
the home.” Id. § 1‐4.2‐3. If a service is available under both the
relevant waiver and the state Medicaid programs, partici‐
pants must generally use prior‐authorization services before
tapping into their waiver funds.
The Agency assigns a case manager to each waiver partic‐
ipant. The case manager works with the participant and his or
her guardian to determine the appropriate services for that
participant. Certain services are available under some waivers
but not under others. After the case manager, participant, and
guardian create an individualized plan, the case manager
submits it for approval to the appropriate Agency subdivi‐
sion.
C
In 2006, the state opened the A&D waiver to persons with
developmental disabilities, so long as they had either “skilled
medical need” or substantial functional limitations. In 2011, it
reversed this policy, and thereafter allowed only people who
could demonstrate both a skilled medical need and substantial
functional limitations to participate in the A&D waiver. As
space became available on the FS waiver, the state moved
A&D waiver participants to the FS waiver.
The plaintiffs are developmentally disabled people who
rely on Indiana’s home‐ and community‐based Medicaid
waiver programs. Karla Steimel suffers from cerebral palsy,
while Thomas Maertz has been diagnosed with both cerebral
palsy and mental retardation. Colton and Cody Cole are twin
Nos. 15‐2377 & 15‐2389 7
brothers; they both suffer from cerebral palsy. Timothy Keis‐
ter has been diagnosed with mental retardation. Michael and
Lois Beckem are siblings; Michael has been diagnosed with
mild mental retardation, and Lois has Down’s syndrome.
Before 2013, the plaintiffs were served under Indiana’s
A&D waiver. Under the A&D waiver, they were able to enjoy
community activities such as eating in restaurants, visiting
flea markets, and window‐shopping. Michael and Lois
Beckem attended day services, which allowed them to go into
the community and interact with people without disabilities.
While all of the plaintiffs suffer from severe conditions, none
of them needs the skilled medical services necessary to meet
the prerequisites of the A&D waiver, as it has been structured
since 2011. All were shifted to the FS waiver in 2013. Later,
Karla Steimel and Timothy Keister were moved to the CIH
waiver; they concede that their claims are moot. While Lois
Beckem has since been moved back to the A&D waiver, she
asserts a damages claim. The Coles, Maertz, and Michael
Beckem remain on the FS waiver.
The plaintiffs still before us allege that their forced move
to the FS waiver has dramatically curtailed their ability to par‐
ticipate in community activities. According to their guardi‐
ans’ affidavits, the plaintiffs were able to enjoy roughly 40
hours in the community each week under the A&D waiver.
Since their transition to the FS waiver, their community time
has shrunk to 10 to 12 hours per week. This roughly 30‐hour‐
per‐week reduction is a result of the FS waiver cap, under
which they are allowed to use only $16,545 in waiver services.
(That amount of money works out, plaintiffs say, to roughly
12 hours per week in services that can be used outside the
home.) Although the plaintiffs are also eligible for Medicaid
8 Nos. 15‐2377 & 15‐2389
prior‐authorization services, those services may not be used
outside the home and so are not relevant to these claims.
The plaintiffs’ guardians also aver that despite the availa‐
bility of prior‐authorization services, restrictions on those ser‐
vices have led to lapses in supervision that have either led to
injury or serious risk of injury to the plaintiffs. The plaintiffs
contend that, given the limitations on prior‐authorization ser‐
vices and the monetary cap on the FS waiver, these gaps in
supervision are unavoidable and have put them at serious
risk of institutionalization. Tamara Awald, the mother of Col‐
ton and Cody Cole, also indicates that she has had to pay out‐
of‐pocket for care when she travels for work.
Karla Steimel filed her initial class‐action complaint and
motion for class certification on June 14, 2013. Before the court
ruled on that motion, Maertz, the Coles, and Keister moved
for leave to intervene as named plaintiffs. The district court
granted the intervention motion, but on March 24, 2014 it de‐
nied class certification. The Beckems commenced their sepa‐
rate case on April 30, 2014.
The parties in both cases filed cross‐motions for summary
judgment. The state argued that it should prevail because the
plaintiffs’ claims did not even implicate the integration man‐
date, while the plaintiffs contended that they were entitled to
judgment because they had shown beyond dispute that the
state was violating the integration mandate. The district court
agreed with the state and granted it summary judgment in
both cases on June 9, 2015. This appeal followed.
II
Nos. 15‐2377 & 15‐2389 9
Congress intended the ADA “to provide a clear and com‐
prehensive national mandate for the elimination of discrimi‐
nation against individuals with disabilities.” Olmstead v. L.C.
ex rel. Zimring, 527 U.S. 581, 589 (1999) (quoting 42
U.S.C. § 12101(b)(1)). Section 12132 decrees that “no qualified
individual with a disability shall, by reason of such disability,
be excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” A “public en‐
tity” includes “any State or local government” or “any depart‐
ment [or] agency … of a State … or local government.” Id.
§§ 12131(1)(A), (B). A “qualified individual with a disability”
is someone who, “with or without reasonable modifications
to rules, policies, or practices … meets the essential eligibility
requirements for the receipt of services or the participation in
programs or activities provided by a public entity.” Id.
§ 12131(2).
The ADA directs the Attorney General to “promulgate
regulations … that implement” the provisions of Title II, in‐
cluding § 12132. Id. § 12134(a). In response to this command,
the Attorney General implemented the regulation known as
the “integration mandate.” The integration mandate states
that “[a] public entity shall 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) (1998). The regulations’ preamble defines “the
most integrated setting appropriate to the needs of qualified
individuals with disabilities” as “a setting that enables indi‐
viduals with disabilities to interact with non‐disabled persons
to the fullest extent possible.” 28 C.F.R. pt. 35, App. B. Public
entities are required to “make reasonable modifications” to
10 Nos. 15‐2377 & 15‐2389
avoid “discrimination on the basis of disability” except if do‐
ing so would “fundamentally alter” the nature of the pro‐
grams. 28 C.F.R. § 35.130(b)(7).
Because the relevant provisions of the Rehabilitation Act
and its regulations are “materially identical” to their ADA
counterparts, Bruggeman ex rel. Bruggeman v. Blagojevich, 324
F.3d 906, 912 (7th Cir. 2003), courts “construe and apply them
in a consistent manner.” Radaszewski ex rel. Radaszewski v.
Maram, 383 F.3d 599, 607 (7th Cir. 2004). The state does not
challenge the validity of any of the regulatory provisions at
issue.
We address the parties’ arguments in two stages: first, we
consider whether the plaintiffs’ claims fall within the scope of
the integration mandate; and second, we ask whether the
state’s policy violated the mandate. The plaintiffs offer two
theories for our consideration: (1) that the state’s policies have
impermissibly rendered the plaintiffs institutionalized in
their own homes, and (2) that the state’s policies have put
them at serious risk of institutionalization.
We review de novo the district court’s decision to grant
summary judgment. Advance Cable Co., LLC v. Cincinnati Ins.
Co., 788 F.3d 743, 746 (7th Cir. 2015). When reviewing cross‐
motions for summary judgment, we “take the motions one at
a time and then, as usual, construe all facts and draw all rea‐
sonable inferences in favor of the non‐moving party.” Id. Sum‐
mary judgment is appropriate only “if the movant shows that
there is no genuine dispute as to any material fact and the mo‐
vant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a).
A
Nos. 15‐2377 & 15‐2389 11
In enacting the ADA, Congress prohibited outright dis‐
crimination and “identified unjustified ‘segregation’ of per‐
sons with disabilities as a ‘for[m] of discrimination.’”
Olmstead, 527 U.S. at 600 (quoting § 12101(a)(2)). “Unjustified
isolation” is therefore “properly regarded as discrimination
based on disability.” Id. at 597. The Supreme Court held that
“discrimination” under § 12132 included “not only disparate
treatment of comparably situated persons but also undue in‐
stitutionalization of disabled persons, no matter how anyone
else is treated.” Amundson ex rel. Amundson v. Wisconsin Dep’t of
Health Servs., 721 F.3d 871, 874 (7th Cir. 2013) (citing Olmstead,
527 U.S. at 597–603).
Olmstead dealt only with the problem of unjustified insti‐
tutional segregation. See Olmstead, 527 U.S. at 600. Its ra‐
tionale, however, reaches more broadly. The Court saw “two
evident judgments” in the integration mandate. Id. The first is
that “institutional placement of persons who can handle and
benefit from community settings perpetuates unwarranted
assumptions that persons so isolated are incapable or unwor‐
thy of participating in community life.” Id. The second is that
“confinement in an institution severely diminishes the every‐
day life activities of individuals, including family relations,
social contacts, work options, economic independence, edu‐
cational advancement, and cultural enrichment.” Id. at 601.
The Court had no occasion to consider whether the same
evils it had identified for institutional placements might exist
in some settings outside of an institution. This case presents
that question: whether isolation in the home for a person
“who can handle and benefit from” time out in the general
community is also inconsistent with the integration mandate.
We see no reason why the same analysis should not apply.
12 Nos. 15‐2377 & 15‐2389
See, e.g., Mark C. Weber, Home and Community‐Based Services,
Olmstead, and Positive Rights: A Preliminary Discussion,
39 WAKE FOREST L. REV. 269, 274 (2004) (“As with race discrim‐
ination, government‐sanctioned separation transmits a strong
message that the out‐group is inferior and that private dis‐
crimination is acceptable.”) (citing Brown v. Bd. of Ed. of Topeka,
347 U.S. 483, 492 n.5 (1954)); Timothy M. Cook, The Americans
with Disabilities Act: The Move to Integration, 64 TEMP. L. REV.
393, 441 (1991) (collecting studies concluding that “[t]he re‐
search data shows, without doubt … that prejudice is less‐
ened through integration”). Isolation in a home can just as
“severely diminish[] the everyday life activities” of people
with disabilities. Olmstead, 527 U.S. at 601. In fact, although
family relations might be enhanced at home if people are
around, isolation in a home may often be worse than confine‐
ment to an institution on every other measure of “life activi‐
ties” that Olmstead recognized.
In accordance with Olmstead, the Department of Justice
has released guidance directing that the integration mandate
be read broadly. The DOJ’s interpretation of the mandate
“warrant[s] respect” because Congress gave it the task of is‐
suing the relevant regulations. Id. at 597–98. The degree of
deference is another matter: Olmstead said nothing on the sub‐
ject. In general, we defer to an agency’s interpretation of its
own regulation unless the agency’s interpretation is “plainly
erroneous or inconsistent with the regulation” or “there is rea‐
son to suspect that the agency’s interpretation ‘does not reflect
the agency’s fair and considered judgment on the matter in
question.’” Christopher v. SmithKline Beecham Corp., 132 S. Ct.
2156, 2166 (2012) (quoting Auer v. Robbins, 519 U.S. 452, 461–
62 (1997)). We see no such flaws in the path that DOJ has
taken.
Nos. 15‐2377 & 15‐2389 13
The guidance indicates that the “most integrated setting”
is “a setting that enables individuals with disabilities to inter‐
act with non‐disabled persons to the fullest extent possible.”
U.S. Dep’t of Justice, Statement of the Department of Justice on
the Integration Mandate of Title II of the ADA and Olmstead v. L.C.
(June 22, 2011). It notes that “[i]ntegrated settings are located
in mainstream society.” Id. Such settings “offer access to com‐
munity activities and opportunities at times, frequencies and
with persons of an individual’s choosing; afford individuals
choice in their daily life activities; and, provide individuals
with disabilities the opportunity to interact with non‐disabled
persons to the fullest extent possible.” Id.
Under the Guidance, the state might violate the integra‐
tion mandate if it “operates … programs that segregate indi‐
viduals with disabilities” or “through its planning, service
system design, funding choices, or service implementation
practices, promotes or relies upon the segregation of individ‐
uals with disabilities in private facilities or programs.” Id. The
mandate “extend[s] to persons at serious risk of institutional‐
ization or segregation and [is] not limited to individuals cur‐
rently in institutional or other segregated settings.” Id. Finally,
so long as any additional services do not cause a fundamental
alteration in the state program, the state may be required to
provide them; budget cuts can violate the integration man‐
date. Id. Given the integration mandate’s maximalist lan‐
guage—it demands “the most integrated setting appropri‐
ate,” 28 C.F.R. § 35.130(d), which it defines as allowing inter‐
action with non‐disabled persons “to the fullest extent possi‐
ble,” 28 C.F.R. pt. 35, App. B—we have no reason not to follow
the DOJ’s interpretation of the mandate. And the mandate, as
14 Nos. 15‐2377 & 15‐2389
we have noted, logically applies to all settings, not just to in‐
stitutional settings. It bars unjustified segregation of persons
with disabilities, wherever it takes place.
The state responds with a narrow reading of the integra‐
tion mandate and an unwillingness to engage with the DOJ’s
interpretation. It argues that the integration mandate covers
only claims by people who literally have been institutional‐
ized, and that a person with a disability who is housed in the
community is therefore outside its scope. The state insists that
“setting” refers only to two kinds of physical structures: an
institution or a location in the community. But there is no rea‐
son to think that the mandate presents such a crabbed binary.
First, “there is nothing in the plain language of the regulations
that limits protection to persons who are currently institution‐
alized.” Pashby v. Delia, 709 F.3d 307, 322 (4th Cir. 2013) (quot‐
ing Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1181
(10th Cir. 2003)). The mandate’s text uses the general word
“setting” and states that people are entitled to be served “in
the most integrated setting appropriate to the needs of quali‐
fied individuals with disabilities.” 28 C.F.R. § 35.130(d). The
“most integrated setting appropriate” is “a setting that ena‐
bles individuals with disabilities to interact with non‐disabled
persons to the fullest extent possible.” 28 C.F.R. pt. 35, App. B.
Just as importantly, there is plentiful evidence that the
state’s interpretation is incorrect. When interpreting adminis‐
trative rules, a court asks first “whether the language at issue
has a plain and unambiguous meaning with regard to the par‐
ticular dispute in the case.” Exelon Generation Co., LLC v. Local
15, Int’l Bhd. of Elec. Workers, AFL‐CIO, 676 F.3d 566, 570 (7th
Cir. 2012). In doing so, the court “giv[es] the words used their
ordinary meaning.” Lawson v. FMR LLC, 134 S. Ct. 1158, 1165
Nos. 15‐2377 & 15‐2389 15
(2014) (internal citation omitted). Neither the ADA nor its reg‐
ulations specifically define the word “setting.” Ordinarily,
that word denotes an environment or situation rather than
any particular physical structure. See THE AMERICAN
HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1593 (4th
ed. 2000) (“The context and environment in which a situation
is set; the background.”); RANDOM HOUSE WEBSTER’S COLLEGE
DICTIONARY 1200 (2d ed. 1999) (“[T]he surroundings or envi‐
ronment of anything.”); MERRIAM‐WEBSTER’S COLLEGIATE
DICTIONARY 1072 (10th ed. 1994) (“[T]he time, place, and cir‐
cumstances in which something occurs or develops[.]”). The
regulation’s use of the word “most” (integrated) and its refer‐
ence to “a” setting also imply more than two possibilities.
If these facts stick a knife in the state’s argument, the DOJ
guidelines twist it. They specifically include the plaintiffs’ two
theories within the integration mandate’s ambit. Moreover,
the ADA and the integration mandate’s “protections would be
meaningless if plaintiffs were required to segregate them‐
selves by entering an institution before they could challenge
an allegedly discriminatory law or policy that threatens to
force them into segregated isolation.” Fisher, 335 F.3d at 1181.
In this case, the plaintiffs’ quandary is Kafkaesque: Indiana’s
institutions can serve only a quarter of the persons with disa‐
bilities currently on the CIH waiver alone. Even if the plain‐
tiffs had to be institutionalized, it is quite possible that they
could not be.
Amundson is not to the contrary. Nowhere did Amundson
indicate that segregation within the community beyond an in‐
stitution’s walls could not implicate the integration mandate.
The Amundson plaintiffs did not present such a claim, and so
the opinion does not address it. Amundson decided instead
16 Nos. 15‐2377 & 15‐2389
that the plaintiffs’ claims were not ripe because they had not
pleaded sufficient facts to allege that they were at serious risk
of institutionalization. While some of the Amundson plaintiffs
had been required to leave group homes, they did “not allege
inability to find another group home willing to accept the
level of reimbursement” Wisconsin was offering. 721 F.3d at
873–74. Wisconsin had represented that it had “safeguards in
place that [would] prevent any plaintiff from being trans‐
ferred to an institution”; the plaintiffs had not given “suffi‐
cient reason to think that these [would] fail.” Id. at 874.
Amundson did not mention the DOJ Guidance one way or the
other; the state thus overreaches when it contends that
Amundson “presumably” rejected the DOJ Guidance.
The plaintiffs in our case have provided evidence that they
need constant supervision and, despite their best efforts, the
services provided under the FS waiver have proved inade‐
quate to prevent life‐threatening gaps in care. Again turning
to Amundson, the state argues that the hypothetical availabil‐
ity of a CIH waiver is a sufficient safeguard. But the state did
not present this argument to the district court, and it is there‐
fore waived. See Domka v. Portage Cnty., Wis., 523 F.3d 776, 783
(7th Cir. 2008). Even if it were not, the CIH waiver is among
the measures the plaintiffs argue they need to prevent their
institutionalization. The plaintiffs have provided evidence
that they are at serious risk of being institutionalized. At this
point, the state has provided no evidence to the contrary and
has decided that the plaintiffs are currently ineligible for the
CIH waiver. This is enough to raise a genuine question of fact
about the adequacy of the CIH waiver as a safeguard against
a serious risk of institutionalization. The plaintiffs’ claims are
therefore ripe.
Nos. 15‐2377 & 15‐2389 17
Another argument the state advances to avoid the integra‐
tion mandate rests on language in Amundson and a footnote
in Olmstead, both of which it reads to support the idea that the
integration mandate imposes neither a “standard of care” nor
“a certain level of benefits to individuals with disabilities.”
Olmstead, 527 U.S. at 603 n.14; Amundson, 721 F.3d at 875
(holding that the ADA does not support “a claim of absolute
entitlement” to Medicaid benefits); see also Cohon ex rel. Bass
v. New Mexico Depʹt of Health, 646 F.3d 717, 729 (10th Cir. 2011)
(holding that ADA did not give plaintiff “legal entitlement”
to specific requested services and that she did not state an
Olmstead claim because she failed to allege that the program
would lead to her unjustified isolation or premature institu‐
tionalization); Rodriguez v. City of New York, 197 F.3d 611, 619
(2d Cir. 1999) (noting that “Olmstead reaffirms that the ADA
does not mandate the provision of new benefits” and “ad‐
dressed only [] where Georgia should provide treatment, not
whether it must provide it”).
The problem with that argument is that it misconstrues the
plaintiffs’ theory. They have not argued that they have an ab‐
solute entitlement to any particular services or program. They
instead seek access to existing benefits available under either
the uncapped A&D or CIH waivers—benefits that have been
granted to some persons with disabilities, but not to them.
While “a State is not obligated to create new services,” it “may
violate Title II when it refuses to provide an existing benefit
to a disabled person that would enable that individual to live
in a more community‐integrated setting.” Radaszewski, 383
F.3d at 609 (citing Olmstead, 527 U.S. at 603 n.14 for the princi‐
ple “that States must adhere to the ADA’s nondiscrimination
requirement with regard to the services they in fact provide”).
The plaintiffs seek services that exist and are given to others.
18 Nos. 15‐2377 & 15‐2389
The state may already be providing at least some of those ser‐
vices through the prior‐authorization program, albeit not out
in the community. That, in fact, is the key difference between
waiver and prior‐authorization services: the former are more
flexible with regard to their timing and may be used outside
the home in the community; the latter must be used in the
home.
The state’s final plea invokes vagueness: If the integration
mandate applies to a multiplicity of “settings” and can re‐
quire the shifting of resources to increase community partici‐
pation, where will it end? The short answer may be that it
ends wherever the state has chosen—this is an anti‐discrimi‐
nation mandate, as we said, not a floor or ceiling. Here, the
state has ways to allow otherwise qualified persons to spend
upwards of 40 hours per week outside their home and in the
community. It thus may not, by invoking the rules of its
waiver program, limit qualified persons to only 12 hours in
the community each week. That fails to “administer services,
programs, and activities in the most integrated setting appro‐
priate to the needs of qualified individuals with disabilities.”
28 C.F.R. § 35.130(d). Based on the purpose and text of the
ADA, the text of the integration mandate, the Supreme
Court’s rationale in Olmstead, and the DOJ Guidance, we hold
that the integration mandate is implicated where the state’s
policies have either (1) segregated persons with disabilities
within their homes, or (2) put them at serious risk of institu‐
tionalization.
B
Because it thought that the integration mandate was not
even implicated here, the district court did not reach the ques‐
tion whether it was violated. We, however, must press on, in
Nos. 15‐2377 & 15‐2389 19
light of our conclusion that the mandate is in play. On cross‐
motions for summary judgment, plaintiffs presented evi‐
dence that they were segregated from the community and
that the state’s 2011 policy was to blame. Without challenging
the contentions about the degree of community interaction
plaintiffs are receiving, the state presented evidence that
showed, in its view, that the 2011 policy change was not the
cause of whatever segregation is occurring.
1
We turn once again to Olmstead for the proper way to ana‐
lyze these arguments. It set out a test for determining whether
the ADA’s integration mandate is violated:
[U]nder Title II of the ADA, States are required
to provide community‐based treatment for per‐
sons with mental disabilities when [1] the State’s
treatment professionals determine that such
placement is appropriate, [2] the affected per‐
sons do not oppose such treatment, and [3] the
placement can be reasonably accommodated,
taking into account the resources available to
the State and the needs of others with mental
disabilities.
Olmstead, 527 U.S. at 607. We have understood this to be the
Court’s last word on the point. See Omega Healthcare Inv’rs,
Inc. v. Res‐Care, Inc., 475 F.3d 853, 864 (7th Cir. 2007) (noting
that “Olmstead stands for the proposition that in order to
avoid violating the [ADA], the placement of individuals in
community‐based settings is appropriate” when the test is
20 Nos. 15‐2377 & 15‐2389
met); Radaszewski, 383 F.3d at 608 (noting, without clearly ap‐
plying the test, that “the [Olmstead] Court agreed” with the
plaintiffs’ formulation of it).
The first two elements of the test appear in Section III.A of
the Olmstead decision, which commanded a majority of the
Court and is thus binding on us. The Court noted there that
(1) “the State may generally rely on the reasonable assess‐
ments of its own professionals in determining whether an in‐
dividual ‘meets the essential eligibility requirements’” of the
program, and (2) that there exists no “federal requirement
that community‐based treatment be imposed on patients who
do not desire it.” Olmstead, 527 U.S. at 602.
Olmstead’s articulation of the third element of the test,
however, represents the thinking of only a plurality of the
Court. Those Justices addressed the question of the level at
which the “reasonable modifications” provision should be
evaluated—that is, which matters should be considered in de‐
ciding whether a requirement to provide integrated care
would constitute a fundamental alteration of the state’s pro‐
gram. See 28 C.F.R. § 35.130(b)(7). It is clear that some version
of the “reasonable modifications” provision—and its flip side,
the fundamental‐alteration defense—must be taken into ac‐
count before deciding that the integration mandate was vio‐
lated. Justice Stevens, concurring in the judgment, thought
that the fundamental‐alteration defense rested ultimately on
the facts; he thus saw no need to delve into the limitations on
the state’s duty. See Olmstead, 527 U.S. at 607–08 (Stevens, J.,
concurring in part and concurring in the judgment). Justice
Kennedy, writing for himself and Justice Breyer, focused on
the need for courts to defer to the treatment decisions of the
treating physicians, lest people who need greater care are
Nos. 15‐2377 & 15‐2389 21
shoved out into the community inappropriately. Id. at 608–615
(Kennedy, J., concurring in the judgment).
As long as we bear in mind the cautionary remarks of the
concurring Justices, we see nothing to prevent our use of Sec‐
tion III.B of the plurality’s opinion as a starting point. Its artic‐
ulation of the “reasonable modifications” element states a
sensible level at which to analyze the question whether re‐
quiring integrated services would “fundamentally alter” the
nature of the programs. 28 C.F.R. § 35.130(b)(7). On the one
hand, a “substantial[] increase” in the cost of a few of plain‐
tiffs’ services should not “defeat [a] Title II claim.”
Radaszewski, 383 F.3d at 614. Such a holding would eviscerate
the integration mandate. See id. (“If every alteration in a pro‐
gram or service that required the outlay of funds were tanta‐
mount to a fundamental alteration, the ADA’s integration
mandate would be hollow indeed.” (quoting Fisher, 335 F.3d
at 1183)). On the other hand, looking only at the cost of chang‐
ing the plaintiffs’ care would be unfair to the state and fail to
give it the leeway for which Justices Kennedy and Breyer
called. “If the expense entailed in placing one or two people
in a community‐based treatment program is properly meas‐
ured for reasonableness against the State’s entire mental
health budget, it is unlikely that a State, relying on the funda‐
mental‐alteration defense, could ever prevail.” Olmstead, 527
U.S. at 603 (plurality opinion).
By specifying that both the “resources available to the
State” and “the needs of others with mental disabilities” must
be taken into account, the plurality’s test allows for a sensitive
balance between the interests of the state and the interests of
the developmentally disabled persons. The test also prevents
a state from describing a program at such a specific level of
22 Nos. 15‐2377 & 15‐2389
detail that literally any change would result in a “fundamen‐
tal” alteration. In the end, the question under the ADA is a
simple one: what effect will changing the state’s practices have
on the provision of care to the developmentally disabled, tak‐
ing into account the resources available to the state and the
need to avoid discrimination?
The evaluation of whether a change would fundamentally
alter the nature of a program should be holistic. Here, the state
has produced no evidence that anything approaching a fun‐
damental change would occur if the programs available to
these plaintiffs were handled differently. We thus do not re‐
gard it as a close case.
2
Neither of the first two elements of the Olmstead test is dis‐
puted in our case. By previously allowing the plaintiffs signif‐
icantly more community interaction, the state’s medical pro‐
fessionals have demonstrated that such activity is both appro‐
priate and possible. The plaintiffs’ purpose in this lawsuit is
to have this level of community‐based service restored, under
whatever program umbrella will accomplish that end. The
plaintiffs’ evidence shows that at present, using the FS waiver,
they can arrange for no more than 10 to 12 hours of such ser‐
vices per week. The affidavits maintain that this amount is in‐
sufficient either (1) to allow any significant community inter‐
action or (2) to prevent gaps in supervision that remained un‐
covered by their caretakers or prior‐authorization services.
The state has offered nothing to support its assumption that
the plaintiffs actually spend more time in the community than
their guardians have averred. Plaintiffs have also provided
evidence that a more integrated setting is possible: their affi‐
davits state that they were able both to achieve significantly
Nos. 15‐2377 & 15‐2389 23
more community interaction and prevent gaps in supervision
under the A&D waiver.
It is the state’s burden to prove that the proposed changes
would fundamentally alter their programs. See Radaszewski,
383 F.3d at 611 (citing 28 C.F.R. § 35.130(b)(7)). It has failed to
carry that burden here. In fact, it did not even argue that the
plaintiffs seek fundamental alteration of their programs. In‐
stead, it contended that “it is not ‘reasonable’ to demand that
the State alter the eligibility requirements for the A&D Waiver
so as to permanently enshrine its error” in placing the plain‐
tiffs on the waiver in the first place.
There are several problems with this argument. The first
is that the plaintiffs are not asking to be put back on the A&D
waiver. While that may be one of the outcomes they will ac‐
cept, it is not the only one. The second is that the state’s logic
is circular. After all, the state creates the waiver programs, and
therefore those programs’ eligibility criteria. If the state’s own
criteria could prevent the enforcement of the integration man‐
date, the mandate would be meaningless. The regulation ad‐
jacent to the “reasonable modifications” provision antici‐
pates—and directly confronts—this problem. See 28 C.F.R.
§ 35.130(b)(8) (“A public entity shall not impose or apply eli‐
gibility criteria that screen out or tend to screen out an indi‐
vidual with a disability or any class of individuals with disa‐
bilities from fully and equally enjoying any service, program,
or activity, unless such criteria can be shown to be necessary
for the provision of the service, program, or activity being of‐
fered.”). The state has made no showing that its criteria are
“necessary for the provision” of the relevant services in this
case. It cannot avoid the integration mandate by binding its
hands in its own red tape.
24 Nos. 15‐2377 & 15‐2389
The third reason the state’s argument cannot prevail is the
most important: the evidence presented on summary judg‐
ment shows that the plaintiffs’ demands are entirely reasona‐
ble; the state has provided no evidence to the contrary. The
plaintiffs do not demand a significant increase in total ser‐
vices, but rather a different apportionment of the two kinds of
services they already receive. Prior‐authorization services do
not allow the plaintiffs to be taken into the community.
Waiver services do. Allowing the plaintiffs to change their
“mix” of prior‐authorization and waiver services would allow
them to participate more fully in the community. According
to their affidavits, a relatively slight increase in total services
would prevent them from being unsupervised. The state has
provided no evidence that the plaintiffs’ desired distribution
of services would significantly increase their cost, let alone
fundamentally alter any programs.
Finally, the state argues that it should be excused from
changing its waiver system because it has a “comprehensive,
effectively working plan for placing qualified persons with
mental disabilities in less restrictive settings,” and therefore
meets the reasonable‐modification standard. Olmstead, 527
U.S. at 605. The state is referring to the process it is using to
move persons with disabilities from the A&D waiver to the FS
waiver. That is just what plaintiffs are attacking: their evi‐
dence shows that this “plan” is undermining, not furthering,
the integration mandate. Instead of moving people with disa‐
bilities to more integrated settings, the state’s plan is making
their living arrangements less integrated.
3
The plaintiffs have provided evidence that before the pol‐
icy change, they were receiving the kind of services they
Nos. 15‐2377 & 15‐2389 25
needed to prevent isolation or institutionalization and partic‐
ipate in the community around them. They also have pro‐
vided evidence that the FS waiver services that they currently
receive are insufficient to allow more than limited trips into
the community. They describe current or future gaps in ser‐
vices that plausibly put them at risk of institutionalization.
It also appears, however, that recipients of FS waiver ser‐
vices may choose how to spend their allowance. The state ar‐
gues that the FS waiver actually provides the plaintiffs suffi‐
cient waiver services to participate in the community, but that
these plaintiffs have used the FS resources in a way that has
led to their current isolation. In support of this contention, the
state has offered evidence that the plaintiffs could make dif‐
ferent choices that would allow them more services in the
community. It also offered evidence that the Coles are using a
lower dollar amount of services than they did under the A&D
waiver, and that Maertz’s situation has been influenced by the
fact that his sister is the paid provider of his waiver services.
There is therefore a dispute of material fact as to whether the
state’s 2011 policy change caused the plaintiffs’ isolation, and
summary judgment is inappropriate on that question. See
FED. R. CIV. P. 56(a).
III
The party seeking class certification bears the burden of
showing, by a preponderance of the evidence, that a proposed
class meets the requirements of Federal Rule of Civil Proce‐
dure 23. Messner v. Northshore Univ. HealthSystem, 669 F.3d
802, 811 (7th Cir. 2012). The district court’s decision whether
to certify a class is reviewed for abuse of discretion. Mullins v.
Direct Digital, LLC, 795 F.3d 654, 659 (7th Cir. 2015). The plain‐
tiffs proposed the following class:
26 Nos. 15‐2377 & 15‐2389
Any and all persons, current and future, termi‐
nated from the [A&D waiver] as a result of the
2011 Policy Change who require more services
each year than are available through the [FS
waiver] and who are not enrolled in the [CIH
waiver].
The district court found that the plaintiffs failed all of Rule
23’s criteria. We have serious reservations about this decision,
which strikes us as too sweeping. Nonetheless, we may affirm
on any basis that fairly appears in the record. Ellis v. CCA of
Tennessee LLC, 650 F.3d 640, 647 (7th Cir. 2011). Because the
class definition was too vague, we find that the district court
did not abuse its discretion in denying class certification.
The vagueness of this definition arises from the word “re‐
quire.” The question is in what ways do the potential class
members “require” more services than available under the FS
waiver? Are they medically required? Required for regular
community interaction? Required so as not to violate the in‐
tegration mandate? (The last of these definitions would risk
making this class an impermissible “fail‐safe” class. See Mul‐
lins, 795 F.3d at 660.) The class definition does not say.
Avoiding vagueness is important “because a court needs
to be able to identify who will receive notice, who will share
in any recovery, and who will be bound by a judgment.” Mul‐
lins, 795 F.3d at 660. “To avoid vagueness, class definitions
generally need to identify a particular group, harmed during
a particular time frame, in a particular location, in a particular
way.” Id. The proposed definition here sufficiently identifies
the time, location, and manner of harm, but we cannot say the
same for the “particular group.” Id. Without knowing how to
Nos. 15‐2377 & 15‐2389 27
sort between those who were and those who were not de‐
prived of services to which they were entitled, we would not
be able to say who should receive notice, be bound by the
judgment, and, if the class were to prevail on the merits, share
in any recovery. The district court therefore did not abuse its
discretion in denying class certification.
IV
Our decision today does not require the state of Indiana to
adopt any particular solution to make its waiver program
compliant with the integration mandate. If plaintiffs prevail
on the merits, the district court, in conjunction with the par‐
ties, may exercise its equitable powers to craft an appropriate
injunction. But the state cannot avoid the integration mandate
by painting itself into a corner and then lamenting the view.
The state designs, applies for, develops policies regarding,
and executes its waiver programs. If those programs in prac‐
tice allow persons with disabilities to leave their homes only
12 hours each week, cooping them up the rest of the time, or
render them at serious risk of institutionalization, then those
programs violate the integration mandate unless the state can
show that changing them would require a fundamental alter‐
ation of its programs for the disabled.
Because the plaintiffs’ claims both fit within and, if caused
by the state’s policy, represent violations of the integration
mandate, we REVERSE the judgment of the district court and
REMAND for further proceedings consistent with this opinion.
We AFFIRM the district court’s decision not to certify the pro‐
posed class. Costs will be taxed against the state.