N.D. Fla. Upholds Standing, Denies Class Certification in Olmstead Waiting List Case

Last week, in Dykes v. Dudek, 2011 WL 4904407 (N.D. Fla., Oct. 14, 2011), the court denied the plaintiffs' motion for class certification in a challenge, under the Supreme Court's decision in Olmstead v. L.C., to Florida's waiting lists for obtaining community-based developmental disability services.  The proposed class included all individuals in Florida who meet an ICF/DD level of care and are on a a waiting list to receive DD waiver services.  It embraced two subclasses:  (1) persons currently receiving services in institutions; and (2) persons currently residing in the community without receiving services.

The state had challenged the standing of the second subclass on the ground that, because they are not institutionalized, members of that subclass did not have a sufficient injury in fact.  The court rejected the standing challenge.  The court concluded that plaintiffs were alleging violations of federal statutes (including the ADA and the Medicaid Act) that give them the right to be free from state conduct that places them at undue risk of institutionalization, and that the denial of such statutory rights (which plaintiffs would have to prove at trial) was sufficient injury in fact.

But the court denied the motion for class certification on the ground that the proposed class failed to satisfy the commonality requirement of Fed. R. Civ. P. 23(a).  The court concluded that the two subclasses were too distinct in law and fact, and had interests that were too much in conflict, to be certified as part of the same class.  It explained that the currently institutionalized plaintiffs had a clear right under Olmstead to freedom from unnecessary institutionalization, but that, in its view, whether people currently residing in the community had an Olmstead right to receive community services was "unclear."  (This seems extremely weak to me; since the Tenth Circuit's leading decision in Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175 (10th Cir. 2003), courts have uniformly recognized that the failure to provide services to people with disabilities currently living in the community is actionable if it places them at sufficient risk of institutionalization.  Indeed, this very theory was the basis for the district court's standing holding here.)

The court also concluded that, under the challenged Florida practice, people in institutions might, simply because they are institutionalized, really never get priority on the wait list, while whether people currently in the community would get priority would depend on their individual situations; and that the injuries of people currently in institutions and people at risk of institutions are different.  And, the court believed, the different subclasses had different interests, because they were both competing for limited waiver resources.