The opinion of the court was delivered by: Hon. John E. Jones III
Plaintiffs, a class of individuals with intellectual disabilities (formerly known as mental retardation) who are institutionalized in state intermediate care facilities for persons with mental retardation ("ICF/MRs") initiated this litigation in June 2009. Plaintiffs alleged that they were appropriate for, and not opposed to, community-based services, and that Department of Public Welfare and the Secretary of Public Welfare (collectively, "Defendants" or "DPW") violated Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131-12134, and Section 504 of the Rehabilitation Act ("RA"), 29 U.S.C. § 794, by failing to provide those services to institutionalized individuals. Plaintiffs sought both declaratory and injunctive relief. On January 27, 2011, the Court resolved cross Motions for Summary Judgment in Plaintiffs' favor, finding that Defendants were violating the integration mandates of the ADA and RA by relegating institutionalized individuals to a class of persons who receive community placements only after another class, those who are not institutionalized, was fully served. (See Doc. 88.) Because of the exhaustive detail that would be required in any resulting injunctive relief ruling, and mindful that the parties were in a better position to come to closure on an acceptable policy, we encouraged the parties to mediate in aid of seeking a final resolution. The parties thereafter reached a settlement with the commendable assistance of U.S. Magistrate Judge Martin C. Carlson, and, thus, before the Court is Plaintiffs' Unopposed Motion for Final Approval of the Proposed Class Action Settlement Agreement (Doc. 260) and Plaintiffs' Unopposed Motion for Attorneys' Fees, Litigation Expenses, and Costs (Doc. 262). For the reasons that follow, the Court will approve the proposed settlement and award the requested fees.
As aforementioned, the Plaintiffs initiated the action on June 22, 2009. Pursuant to an unopposed motion predicated upon Federal Rule of Civil Procedure 23(b)(2), we thereafter certified the following class:
All persons who: (1) currently or in the future will reside in one of Pennsylvania's state-operated intermediate care facilities for persons with mental retardation; (2) could reside in the community with appropriate services and supports; and (3) do not or would not oppose community placement. (Doc. 17.) Defendants subsequently filed a Motion to Dismiss (Doc. 20) that the Court denied by our Order of January 25, 2010. (Doc. 38.)
While the Motion to Dismiss was pending, a group of individuals filed a Motion to Intervene in the litigation. (Doc. 27.) These individuals, referred to throughout this litigation as the "Springstead Intervenors", alleged that, although they were opposed to community-based services and support, they were nonetheless de facto members of the certified class. The Springstead Intervenors alleged that the resolution of the class action in Plaintiffs' favor would limit the Springstead Intervenors' rights to choose ICF/MR care. We denied the Motion to Intervene on March 10, 2010, finding that the Springstead Intervenors were explicitly excluded from the class by virtue of their opposition to community-based care. (Doc. 41.) The Springstead Intervenors appealed that decision, and the United States Court of Appeals for the Third Circuit affirmed our denial in April 2011. See Benjamin v. Dep't of Pub. Welfare, 2011 WL 1243683 (3d Cir. 2011) (unpublished opinion).
The parties completed extensive discovery and filed cross-Motions for Summary Judgment. (Docs. 48, 51.) In January 2011 we issued a Memorandum and Order that denied Defendants' Motion for Summary Judgment, granted Plaintiffs' Motion for Summary Judgment, and declared that DPW violated the integration mandates of the ADA and RA. (Doc. 88.) As noted, because at that juncture the Court was reluctant to draft such extensive injunctive relief as would be required, and in effect construct a policy that was better left for the parties to develop in the first instance, we encouraged the parties to attempt to resolve the remedy amicably.
Again, and as noted, we referred the parties to mediation with Magistrate Judge Martin Carlson in February 2011. The parties met twice with Judge Carlson and continued arms-length negotiations on their own. The parties eventually finalized the Proposed Settlement Agreement, and we granted preliminary approval of said Agreement on May 27, 2011. (Doc. 106.) Notice was either hand-delivered to nearly all ICF/MR residents or mailed to involved family and guardians of residents by June 24, 2011, and interested persons had the opportunity to object to the Settlement by August 2, 2011. The Court received numerous objections, discussed in more detail below, and conducted a fairness hearing in accordance with Federal Rule of Civil Procedure 23(e) on August 22, 2011.
B. The Proposed Settlement and Attorneys' Fees
Plaintiffs appropriately summarize the salient terms of the Proposed Settlement in their Brief in Support of the Motion for Final Approval (Doc. 261), and we shall highlight the significant points herein.
As articulated in the Agreement and expanded upon during the testimony at the fairness hearing, DPW is in the process of creating, and will continue to create, a Planning List that includes all state ICF/MR residents who are not opposed to discharge -- this includes those who wish to be discharged and those who assert no preference. To evaluate who is not opposed to discharge, DPW's Office of Developmental Programs ("ODP") and others will assess residents', guardians', and involved family members' opposition to discharge utilizing the ICF/MR Community Planning List Assessment Protocol (the "Assessment Protocol") that was introduced in the hearing as Exhibit 1. The assessment is intended to be an individualized evaluation, and residents who do not indicate opposition to community placements will be placed on the planning list unless their guardians oppose.*fn1 DPW will perform this assessment every year in conjunction with the residents' IEPs.
Related to the assessments that will be performed to develop the Planning List, DPW will create a committee to develop a training program to educate residents and their families about community placements. This committee will distribute literature regarding the community placements and will offer visitations to some of the placements.
Thereafter, DPW will develop and implement an Integration Plan to provide community placements in the following order: (1) at least 50 persons on the Planning List in Fiscal Year 2011-2012; (2) at least 75 persons on the Planning List in FY 2012-13; (3) at least 100 persons on the Planning List in each FY 2013-2014 and 2014-2015; and (4) at least 75 persons on the Planning List in FY 2015-16 and every FY thereafter until all persons on the Planning List have been discharged. Throughout the course of the implementation of the Settlement Agreement, DPW will provide to Plaintiffs regular status reports, and the Court will retain continuing jurisdiction over the case for purposes of enforcement of the Settlement Agreement.
The Court received letters of opposition to the Settlement Agreement from at least one (1) state ICF/MR resident and from the families or guardians of approximately 101 other state ICF/MR residents. We likewise received letters of objection from several Commonwealth lawmakers as well as others who will not be directly impacted by the litigation, and several letters of support from state ICF/MR residents and others. Most of the articulated objections clearly stem from two apparent fears: that some state ICF/MR residents will be unable to voice their opposition to community placements and will be wrongly placed in the community and that, ultimately, the Settlement Agreement will result in the closure of all state ICF/MRs because of a decrease in the resident population. Several objectors likewise objected to any award of fees to counsel for Plaintiffs or to the measure of any fees awarded.
Plaintiffs also filed an unopposed Motion for Attorneys' Fees, Litigation Expenses, and Costs. (Doc. 262.) Plaintiffs seek a total award of $432,500; an amount that is, according to Plaintiffs, only 86.6 percent of their actual fees, litigation expenses, and costs incurred through June 30, 2011. Defendants do not oppose the Motion for Attorneys' Fees and Costs.
A. The Proposed Settlement ...