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Case number 17-7152, Ivy Brown, in her individual capacity and as representative of the certified class appellant, Larry McDonald, NL, versus District of Columbia, a municipal corporation.

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Ms.

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Bagley for the appellant, Ms.

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Lebsack, the appellee, D.C.

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Ms.

[00:00:18] Speaker 03:
Bagley, good morning.

[00:00:19] Speaker 01:
Good morning.

[00:00:26] Speaker 01:
You please the court.

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My name is Kelly Bagby.

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I'm here representing Ivy Brown and the class of folks who are trying to get out of nursing homes in DC.

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DC, the district court applied the wrong legal criteria in this case.

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The district court committed a legal error, multi-legal errors, by requiring that plaintiffs show a specific inadequacy impacted every person in the class in the same way and that that inadequacy was the real cause of their segregation in nursing facilities.

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are we talking about?

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How large is the class, the latest number in the record?

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The class is estimated of people who are eligible for services and want to get out at about 65 percent of all people that are in nursing facilities, so somewhere around 1,000 to 1,200 people.

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Okay.

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This court should remand the case so that the district court can apply the correct legal analysis to the evidence, looking at whether it was D.C.'

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's failure to provide transition assistance to all class members that contributed to their risk of institutionalization, not that it was the sole cause.

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The court provided no support for the proposition that the plaintiffs had to prove a single deficiency, a single inadequacy was that sole cause of their segregation.

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When this court looked at the DL versus DC case, the DL2 case, they found that it was sufficiently concrete for one of the subclasses that had the assessment subclass that that class, that DC was only assessing those kids

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20% of the time in a timely way.

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So that meant that if you were in the lucky 80%, you might have gotten your assessment timely.

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But for 20% of the kids, they weren't.

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And so you just hope that you didn't fall into that category.

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The same is true for the class, the Brown class.

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But there was a benchmark, at least a timing benchmark, that was present in the regulatory scheme.

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Here we don't have a particular timing benchmark or something specific in the regulatory scheme that you pointed to that was not being done lawfully.

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Well, what we have is the court's own finding that there are six components to transition assistance.

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And the first one of those is to provide an assessment as soon as upon admission and many times, many intervals after that.

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The court found that this concept of transition assistance was sufficiently definite to warrant a class certification.

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And at this point, what the district court has done is because she shifted the analysis to showing that any one piece of the six components was so broken as that that's the real reason the class is stuck.

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And that's not supported by Olmsted case law.

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Olmsted case law shows that

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If a person, if a class of people can show that they are eligible for services, they desire to get those services, and that the government entity can reasonably accommodate their need for services in the community, the district has to do, they have to act, they have to take action.

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And that action is, in this case,

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necessary to provide those transition services to all of the class members.

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Yeah, but I mean, the question that my colleague's asking you, the district court, we had some skepticism in the first case, when the case first came up about the class certification.

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We allowed it, but clearly a skeptical.

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And the district court, under man,

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followed up on that, and was skeptical in finding that there really was a proper class certification.

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And district courts were entitled to do that on remand in this situation.

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When you look at it carefully, they have doubts.

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Now, the court had doubts now, and a very comprehensive opinion.

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And what Judge Wilkins asked you is, what's the regulatory policy failure?

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You can't cite the DL without pointing to what is it

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That is a failure that affects all class members.

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And the district court said, couldn't find it.

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Well, the reason the court couldn't find it, because it was looking through the wrong analytic prism.

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The right analytic prism is that the ADA requires that a government entity modify its policies and practices in order to avoid institutionalization.

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It doesn't say that all the class members had to be cured of their segregation.

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In fact, plaintiffs have never asked that we be- No, no, no, but the question is, what is it they're doing wrong as a matter of policy?

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As a matter of policy- The judicial court found that

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They did have a plan, a lawful plan, in effect.

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And so what is it that they're doing wrong as a regulatory matter?

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I'm not getting it.

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Well, with all due respect, the district court did not find that they have a plan in effect.

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The district court did not find that there was any illegality.

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Now, your brief continues to assert that in the earlier period,

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court found some illegality, I don't find that in the district court's decision.

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Well, the district court explicitly repeated that in 2012, in the motion to dismiss, she found that DC did not have an effective Olmstead plan.

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In 2014, she again repeated, DC has not proven that it has an effective Olmstead plan when it certified the class.

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Then when she gets to, when the court got to 2016, the court made no findings about whether or not there was an effective Olmstead plan.

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What she said was, the plaintiffs had not proven that there was a deficiency that would, if corrected, would result in the deinstitutionalization of the class.

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That is not what the class, the class has always asked that we have, that the plaintiffs are given the fair opportunity, the opportunity to access public benefits.

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if it arises from some regulatory failure.

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That's what we're trying to figure out.

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What is a regulatory failure?

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You said there's no fair opportunity, because why?

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Because the ADA and Section 504 of the Rehab Act require action when a group of people with disabilities have been discriminated.

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The law also recognizes that it may not happen because of other factors.

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with respect to which the city has no control.

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Well, that, I believe, goes to the point in DL, the point that this court made in DL, that if with the assessment class again, if the parents are not cooperating with consent, that goes to whether or not D.C.

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is in compliance with an injunction.

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It doesn't go to whether or not there is a need for a structural injunction.

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In this case, there is a need for a structural injunction.

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D.C.

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took no steps to help this class and before this court.

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The injunction could be a number of things, but it could tie the resources of the DC Office on Aging to the number of people who want help to get out.

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It could provide for the elimination of a number of concrete policies that DC has.

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DC refuses to serve people in the first 90 days in their nursing home.

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But in their policy, their policy at page 367 in the Joint Appendix,

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explicitly says that the first 90 days is when most people will lose their housing.

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So DC is exacerbating the risk of institutionalization with that policy.

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DC has other policies where they have

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not done a comprehensive assessment of the need of the whole class.

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They did one assessment over the course of litigation of 704 people.

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That's roughly a quarter of the overall group of people in nursing facilities.

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But even that assessment found that 65% of the people want to get out and are eligible to get out.

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That's the class.

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So that information- Does it matter whether they have any place to go?

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Well, the fact is that as this case has gone on and DC has provided small amounts of transition services to the class, small amounts of people have gotten out.

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We've proven during the course of this litigation that the provision of transition services will help if you provide it at the earliest point.

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It doesn't matter whether they have any place to go.

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Didn't the district court say that that's one of the difficulties?

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She said that is a challenge.

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A crucial difficulty.

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If there's no place to go, how can you transition somewhere?

[00:09:19] Speaker 01:
Well, but the part of the, and you see in the six elements of transition services, several parts of those components go to helping people to find housing.

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Not everybody in this class does not have housing.

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And obviously because many people have transitioned to the community during the course of the case.

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My understanding is not everybody needs

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public housing, they need financial help to go back to their sister's house or their daughter's house or something, or an apartment by themselves.

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Yes, that is true.

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That is true.

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And there are many people who have, they have housing waiting.

[00:10:01] Speaker 03:
The point that there's a huge demand on public housing, thousands and thousands of people,

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doesn't mean that there aren't members of this class who, if they get this transition assistance, could get to community-based living, which is their right.

[00:10:22] Speaker 03:
That is exactly right.

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I'm going to give you some time to reply.

[00:10:26] Speaker 03:
All right, I appreciate that.

[00:10:27] Speaker 03:
All right.

[00:10:28] Speaker 03:
Mrs. Lebsack?

[00:10:35] Speaker 02:
Following a trial, the district court found that the class failed to prove its case for two reasons.

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Each reason is supported by the record in the law, but I will start with Judge Edwards' question, which is what is the district doing wrong?

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The district is doing nothing wrong, as the district court found.

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Let's make sure that we're clear on what the district court did and what we're reviewing.

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My reading of the opinion is that the district court

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found that the motion for class decertification that was filed by your client should be granted and decertify the class.

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And therefore, since class relief was the only relief being sought, entered judgment for the defendant.

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Do you agree that that's what happened?

[00:11:25] Speaker 02:
The class failed to prove its case.

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Because it did not show an entitlement to class relief.

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Class relief was the only thing the class asked for.

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They did not prove it.

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Judgment was entered for the district.

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So I agree with you.

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OK.

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Didn't sound like you agreed with me.

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But the district court, as I read the opinion, found that commonality under 23A2 was not met.

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Correct.

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Okay.

[00:12:01] Speaker 04:
And the district court made that finding based on the fact that even though the class was defined in terms of inadequate transition services that were being provided by the district, and that was a common question, that that question didn't really have a common answer.

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That's right.

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And the reason it found that it didn't have a common answer was because it found that housing was really the problem as opposed to the services that were being provided.

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That's the second part of what the district court found.

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The first part of what the district court found was that at no point in the provision of transition assistance was the district failing to provide it.

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So the district court looked to each aspect of transition assistance that the class had identified.

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The gravamen of the class's claim was that the district failed to do multiple things, multiple systemic deficiencies.

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So for example, this court

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If the district court didn't start with what you're saying it started with, it started with the fact that it said that housing was the real problem here.

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I mean, that was the first finding of the district court, wasn't it?

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Housing is a problem, and it's one of the reasons that class members face barriers that are not within the district's control.

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The reason the district court found that class members were not actually transitioning

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were a sort of a cluster of individualized barriers, which was not part of the district's sort of systemic provision of transition assistance.

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So absolutely, housing is a barrier that the district can't solve.

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And the district court said, therefore,

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An injunction that I would enter about transition assistance wouldn't solve class-wide segregation.

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It wouldn't provide sort of a class-wide desegregation at all.

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That's the 23b2 finding.

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Correct.

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I thought we were talking about 23a2.

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The district court's 23A2 finding was that there was no systemic problems in the district's provision of transition assistance.

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And the way the court did that makes a lot of sense.

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She looked at each component the class had put forward.

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And with respect to each, she found there was no systemic deficiency.

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So as to outreach, no deficiency.

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And therefore, at the end of that,

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After going through each and saying, well, no, the district is doing exactly what the class said they failed to do, and that's rejected, it's essentially 0 plus 0 plus 0 equals 0, with no systemic deficiency in any component of the district's transition assistance.

[00:15:09] Speaker 03:
What about the 90-day delay that your colleague mentioned?

[00:15:14] Speaker 02:
There are two problems.

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with that claim.

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The first is that the class definition here begins after the 90-day mark.

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The class has long conducted its case as a class that at the point of 90 days becomes stuck.

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So it's not at all clear how the class is seeking relief for people who are not

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in the class.

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Notwithstanding that, as the district points out in its brief, we do provide transition assistance prior to the 90 days.

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It's simply that at the district court, everyone agreed that 90 days was a pretty good benchmark for people who might need transition assistance, which is the class definition.

[00:16:01] Speaker 02:
Let me turn to the question of whether this is at all like

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DL2 subclass four.

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As you mentioned Judge Wilkins, that class had a timing benchmark.

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This class doesn't.

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What they were required to do, therefore, is define in their complaint what they thought the problem was.

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And they said the problem is the district fails to provide outreach.

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The district fails to provide information to people.

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The district fails to track people

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through the system.

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These were the failures they set out to prove.

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They failed categorically to prove any of those deficiencies.

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And so this class is essentially not at all like the class.

[00:16:51] Speaker 04:
But the primary finding of the district court was that those deficiencies, even if they did exist, wouldn't solve the problem, which is that there's no housing.

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And what the appellants are saying is that that's really asking the wrong question.

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It's not whether if the district provided better than crappy transition services, everybody would get housing.

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It would be that if they provided better than crappy transition services, they would at least have a fighting chance at getting housing.

[00:17:31] Speaker 04:
What's wrong with that argument?

[00:17:34] Speaker 02:
The first thing that's wrong with the argument is that it presumes the very deficiency the class failed to prove.

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If there is no deficiency, it simply does not matter whether or not that deficiency was contributing to or a tantamount to segregation.

[00:17:51] Speaker 02:
There are no deficiencies.

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So the case could stop there, and this court could write an opinion.

[00:17:56] Speaker 04:
The district court seemed to think that there were deficiencies.

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I mean, the district court didn't give the district a ringing endorsement at the conclusion.

[00:18:05] Speaker 04:
when it said that there's really nothing that the district really has to be proud of or something to that effect with respect to the services that it's providing?

[00:18:17] Speaker 02:
The district court found that the district is providing an effective transition assistance system.

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There's no dispute about that as a factual matter.

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The only legal problem identified by the class

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is this sort of level of generality that they say undermines the district court's finding that there were in fact systemic deficiencies.

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And as your question points out, that's simply quite wrong.

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So no deficiency means the district is doing nothing wrong.

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And the analysis ends there.

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It is a completely sufficient way to affirm the judgment to simply say the district court, in detailed findings, found that the district was providing

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the very transition assistance, the class alleged that the district failed to do.

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That's all that's required here.

[00:19:13] Speaker 02:
The district court did go further.

[00:19:15] Speaker 02:
She said, in any event, if there was a deficiency, if I entered in an injunction to remedy it, it might remedy that deficiency, but it wouldn't remedy the class's segregation.

[00:19:28] Speaker 02:
And that's quite right.

[00:19:30] Speaker 02:
The class, sort of the gravamen of this part of the class is... But isn't that the crux of the problem?

[00:19:37] Speaker 04:
I mean, the lawsuit shouldn't be measured as to whether it's a success or failure as if it eliminates all segregation, right?

[00:19:50] Speaker 02:
Olmstead requires that the district not maintain or administer its Medicaid program in a way that results in segregation.

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That much is clear.

[00:20:01] Speaker 02:
But we don't even get to that problem because they didn't prove that the district was actually doing anything wrong.

[00:20:09] Speaker 02:
The reason the district court found that people were not transitioning out was not due to the district's transition assistance at all.

[00:20:18] Speaker 02:
Rather, there were numerous individualized barriers that were preventing that transition from happening.

[00:20:24] Speaker 02:
So class-wide relief, which is the question here, can they maintain a class action?

[00:20:30] Speaker 02:
The district court said they cannot.

[00:20:37] Speaker 03:
Do you think we have the option of ordering the class to be decertified?

[00:20:47] Speaker 02:
Because the class failed to prove its case, by definition the class is decertified.

[00:20:55] Speaker 02:
It's not the district court's judgment is exact.

[00:20:59] Speaker 02:
The district court said the class has not satisfied Rule 23.

[00:21:09] Speaker 02:
Therefore, and that's all there is in the case, are the class claims.

[00:21:14] Speaker 02:
The case is over.

[00:21:16] Speaker 02:
The case is certainly over.

[00:21:22] Speaker ?:
All right.

[00:21:22] Speaker 02:
Thank you.

[00:21:22] Speaker 02:
Thank you.

[00:21:23] Speaker 02:
The judgment should be adjourned.

[00:21:25] Speaker 03:
Why don't you take two minutes?

[00:21:28] Speaker 03:
Two minutes, sorry.

[00:21:31] Speaker 01:
Thank you very much.

[00:21:34] Speaker 01:
So just to start with, the district court did not find that the defendant's performance was satisfactory.

[00:21:40] Speaker 01:
Far from it.

[00:21:41] Speaker 01:
The court identified problems with connecting people with home health agencies, helping people to get documentation.

[00:21:50] Speaker 01:
The court

[00:21:51] Speaker 01:
identified a whole category of things which it said were things that are kind of in a miscellaneous character.

[00:21:59] Speaker 01:
But the simple fact is, the things the court identified are all things that would be solved with an effective system of transition services.

[00:22:07] Speaker 05:
But the court was talking about individual difficulties and individual issues that affect individual members, not systemic problems.

[00:22:16] Speaker 01:
But the failure to provide assistance with getting documentation that you need for applications is a systemic problem.

[00:22:25] Speaker 05:
On Joint Appendix 459, the Court said that

[00:22:37] Speaker 01:
that she specifically said that the nursing facility residents have the added trouble of being able to get proper identification documents they need to apply for community-based services.

[00:22:48] Speaker 05:
She was saying that as a systemic problem, that it's something- It's a legal conclusion that that is a systemic problem common to the class, and a remedy is therefore always.

[00:23:00] Speaker 05:
But the point that the class is... She's saying quite the opposite.

[00:23:03] Speaker 05:
She says, yes, in individual cases there are some issues, but she's not finding any systemic problem.

[00:23:09] Speaker 05:
I mean, you may say she is wrong, but she's certainly not saying what you're saying.

[00:23:14] Speaker 01:
Well, she also identifies, for example, the inability to connect class members to home care workers.

[00:23:21] Speaker 01:
Then she goes on to talk about Mr. Foreman.

[00:23:26] Speaker 01:
And Mr. Foreman specifically lost housing to apartments because he was unable to connect to home care workers.

[00:23:33] Speaker 01:
And that's squarely the responsibility of the D.C.

[00:23:36] Speaker 01:
Medicaid agency.

[00:23:37] Speaker 01:
to make sure they have adequate capacity to serve the people who are coming out of nursing facilities.

[00:23:42] Speaker 01:
These are systemic problems that fall on the shoulders of the District of Columbia, and were they running a functioning system of transition assistance, people would have a better opportunity.

[00:23:52] Speaker 05:
We don't guarantee... You put it somewhere in the opinion where you think the District Court says there are these systemic problems with respect to these kind of administrative... I just don't see it.

[00:24:01] Speaker 05:
Well, when she would put it... I don't understand your...

[00:24:04] Speaker 05:
I hear what you're saying, but I think she is saying there are occasions when there are difficulties, individual difficulties, but it's very different from her saying DC just does not know how to operate under the plan and they're not doing what they're supposed to be doing as a systemic matter.

[00:24:21] Speaker 05:
Where is that?

[00:24:22] Speaker 01:
they are not providing transitional services to all of the class members, and that is the obligation.

[00:24:28] Speaker 01:
When the class members are, by definition, being discriminated against as Supreme Court has defined, because they're unnecessarily institutionalized, that unjustified segregation is not due to the fact that they're homeless, it is due to the fact that they have a disability, want to get out, and are eligible for community-based services.

[00:24:47] Speaker 01:
It is D.C.'

[00:24:48] Speaker 01:
's obligation to build that bridge from the nursing facility to the available services that it has.

[00:24:54] Speaker 01:
And if it doesn't do that, that is the violation.

[00:24:57] Speaker 01:
The problem is the court wanted us to look at this so granularly, but it's a system.

[00:25:02] Speaker 05:
Transition Services is a suite of services.

[00:25:07] Speaker 01:
Well, if the lack of available housing is, and she didn't say there's no housing, obviously she couldn't say that because class members were going out and finding housing.

[00:25:17] Speaker 01:
But if housing is the barrier that D.C.

[00:25:20] Speaker 01:
can point to, it eviscerates the whole Olmstead integration mandate.

[00:25:24] Speaker 01:
Because all you have to do is do nothing about housing.

[00:25:27] Speaker 01:
And you now are absolved of all responsibility.

[00:25:29] Speaker 05:
What are you saying a city is supposed to do in that situation?

[00:25:32] Speaker 05:
She certainly does make a finding of a lack of available, affordable, and accessible housing.

[00:25:37] Speaker 01:
Yes.

[00:25:37] Speaker 05:
There's a whole heading on it.

[00:25:39] Speaker 01:
And it's heading A. And if you look at the third prong of our class definition, it is that people who would live in the community prefer to live in the community if DC will help facilitate their... What does that mean?

[00:25:51] Speaker 01:
Because give them the opportunity.

[00:25:54] Speaker 05:
I'm being really serious now.

[00:25:55] Speaker 05:
As a judge, I'm assuming I'm sitting on the district court bench, and you say, well, that's no answer, that there's no housing.

[00:26:03] Speaker 05:
The city should be made to do something.

[00:26:05] Speaker 05:
Well, what does that mean?

[00:26:06] Speaker 05:
So I have to now write an injunction.

[00:26:10] Speaker 05:
All right, the lack of available housing is an issue, but the city shouldn't be able to point to that.

[00:26:14] Speaker 05:
The city has to go do what?

[00:26:17] Speaker 01:
The city should provide transition services to the class members who are eligible for services because housing can emerge tomorrow.

[00:26:26] Speaker 01:
They need to be in a ready.

[00:26:27] Speaker 05:
Wait, wait.

[00:26:27] Speaker 05:
Really hear my question because I'm trying to understand your argument.

[00:26:31] Speaker 05:
You're saying the lack of available housing shouldn't be an excuse.

[00:26:35] Speaker 05:
The city should make that better.

[00:26:37] Speaker 05:
All right.

[00:26:38] Speaker 05:
I'm a judge.

[00:26:39] Speaker 05:
What does my order say?

[00:26:41] Speaker 05:
You cannot use lack of available housing as an excuse.

[00:26:45] Speaker 05:
You have to deal with that and cure that problem.

[00:26:48] Speaker 05:
And therefore, I order the city to what?

[00:26:51] Speaker 05:
Get more housing?

[00:26:52] Speaker 05:
Build more housing?

[00:26:53] Speaker 05:
What?

[00:26:53] Speaker 01:
Well, so just backing into this, because this is an Olmstead context, the statute and the Olmstead case law lays out what we do.

[00:27:02] Speaker 01:
You would have to remand this case so that D.C.

[00:27:04] Speaker 01:
can prove that it actually has done all it can do to help secure housing.

[00:27:08] Speaker 01:
We don't know that.

[00:27:09] Speaker 01:
There's no statement by the judge that there is no housing.

[00:27:13] Speaker 01:
She said it's an obstacle.

[00:27:14] Speaker 01:
And the argument and the case

[00:27:18] Speaker 01:
The experience of our class members has been that when people did get transition assistance, they had a better shot at finding housing, connecting to services, and moving to the community.

[00:27:29] Speaker 04:
So the answer, your answer to Judge Edwards' question is that the city has to provide more effective transition services?

[00:27:40] Speaker 01:
To every member of the class.

[00:27:42] Speaker 04:
And exactly what more effective transition services?

[00:27:47] Speaker 04:
Like in what area?

[00:27:49] Speaker 04:
What is specifically not being done?

[00:27:53] Speaker 04:
What should be done?

[00:27:54] Speaker 01:
It's a suite of services.

[00:27:56] Speaker 01:
Transition services, as the judge laid out, have six components.

[00:28:01] Speaker 01:
So there'd have to be individual assessments when people come into a nursing facility and periodically thereafter, providing information to people so that they can start understanding how they could maybe self-advocate to find their own services and housing.

[00:28:16] Speaker 01:
And then discharge planning that commences upon admission and includes a comprehensive written discharge plan so that here are the obstacles for Kelly Bagby to getting out to the community.

[00:28:27] Speaker 01:
Here's a plan, how we're going to effectuate that plan.

[00:28:30] Speaker 01:
for each person is entitled to that level of assistance.

[00:28:36] Speaker 01:
And then also identification of services and helping to arrange them, because these are people who have lived for almost a decade in a nursing facility.

[00:28:44] Speaker 01:
They're not able to go navigate this very complex administrative system.

[00:28:49] Speaker 01:
And finally, assistance in applying and enrolling with available federally funded waivers that would pay for the services.

[00:28:58] Speaker 01:
None of this is a guarantee that people will get out, but it does give them a better opportunity and it gets them into a state of readiness so that when housing does come up for people, a family member decides they do want to bring them back.

[00:29:11] Speaker 01:
They can't be sitting there waiting for another year for all these other pieces to be put in place.

[00:29:17] Speaker 01:
And that is what an effective system of transition assistance is.

[00:29:21] Speaker 01:
And I believe our amicus brief from the various disability groups sort of lays that out, that that is what has worked across all populations.

[00:29:28] Speaker 05:
So you're saying the district court's finding in part renewal to all of those subparts are wrong.

[00:29:34] Speaker 05:
Because the district court, in that part, rejects all of what you just said.

[00:29:39] Speaker 05:
District court said the services you claim are not being afforded are being afforded, and you haven't proven otherwise.

[00:29:45] Speaker 05:
What the district court said is... Are you saying that this court was clearly erroneous or what?

[00:29:50] Speaker 01:
No, we're saying that she's... Or this court missed something.

[00:29:52] Speaker 01:
She's analyzed the concept of transition services improperly because she's looking at it in such a way that she wants us to find the one thing that is the true reason people are stuck.

[00:30:04] Speaker 05:
No, no, in part two, in part Roman two, she goes through all of the assertions you're now making.

[00:30:10] Speaker 05:
She says you're wrong because you have not proved

[00:30:13] Speaker 05:
that the district court has failed to do these things which they are required to do.

[00:30:18] Speaker 05:
I'm just not understanding your argument.

[00:30:20] Speaker 01:
What she says, Your Honor, is that we did not prove that any one piece of this was so broken, that at that one piece is the real reason people are institutionalized.

[00:30:30] Speaker 01:
What we're saying is this is a suite of services that if you're a person who's been institutionalized for a long period of time, you need all of these.

[00:30:39] Speaker 05:
You need every aspect of this, and every one of our clients needs it.

[00:30:57] Speaker 01:
But how is this any different than the assessment class?

[00:31:02] Speaker 01:
where 80% of the DL assessment class were getting assessed on time.

[00:31:08] Speaker 01:
And that left 20% that were not.

[00:31:10] Speaker 01:
And that was sufficiently concrete to be the glue that held that class together.

[00:31:17] Speaker 01:
What we're saying is there's a huge number of class members that are getting nothing.

[00:31:22] Speaker 01:
And they need not just one service here, one service there.

[00:31:26] Speaker 01:
They need the suite of services, or else they are not going to be able to get out of nursing facilities.

[00:31:32] Speaker 03:
Let me ask you about your proposed injunction, because it has four quite detailed parts.

[00:31:40] Speaker 03:
And it seems to me that part two is really the only one that is tied to housing.

[00:31:46] Speaker 03:
In other words, by year four, 100% of class members, I don't know if there's anything in the record that says that that's just an impossible benchmark.

[00:32:00] Speaker 03:
But if you take out

[00:32:03] Speaker 03:
Part two, that is transition these class members so that they're finally down to a very small number.

[00:32:10] Speaker 03:
If you take that out, you're still left with the first working system of transition assistance which has A through H services that are required to be given and that would assist even if there's no housing available

[00:32:31] Speaker 03:
to all class members if they are aware of and have help with home care, whatever.

[00:32:37] Speaker 03:
They have a family member who says, I can take my mother if I can have a nurse there during the day when I'm working, and so forth.

[00:32:48] Speaker 03:
And then the parts three and four are reporting requirements.

[00:32:57] Speaker 03:
In our pre-trial... In other words, it's not just there's not enough public housing or there's no public housing.

[00:33:07] Speaker 03:
There are all sorts of preliminary things.

[00:33:10] Speaker 03:
It's the access to these and the opportunity to try to find housing on your own if public housing is unavailable.

[00:33:21] Speaker 01:
That's correct.

[00:33:22] Speaker 01:
That's correct.

[00:33:23] Speaker 01:
And there are a number of housing resources in the community.

[00:33:26] Speaker 01:
But to your point about the benchmarks, we always indicated to the court that the measure of compliance, it's like the DL analysis in DL2, that if you lay out the benchmarks, it sets the goals, but they can be forgiven if you can't hit them for reasons that are beyond your control.

[00:33:47] Speaker 01:
But you have to be able to prove that it's beyond your control.

[00:33:50] Speaker 01:
It's not enough to say it's too hard for us.

[00:33:53] Speaker 03:
Can I ask you just one detailed question?

[00:33:56] Speaker 03:
In part two of your proposed injunction, do you have it in front of you?

[00:34:00] Speaker 01:
The injunction?

[00:34:01] Speaker 03:
Yeah.

[00:34:07] Speaker 03:
What you're asking for is that the transition of class members under the various government programs, the Medicaid program for people who are

[00:34:21] Speaker 03:
EPD waiver, the money follows the person program, and the Medicaid state plan PCA program.

[00:34:31] Speaker 03:
And then you've got other long-term community-based care programs available in the district.

[00:34:39] Speaker 03:
It doesn't say provided by the district.

[00:34:42] Speaker 03:
And what are you?

[00:34:44] Speaker 01:
So there are some examples like Threat for the City, church organizations, that some others might eat.

[00:34:51] Speaker 01:
All right.

[00:34:51] Speaker 03:
Thank you.

[00:34:52] Speaker 03:
Sure.

[00:34:54] Speaker 01:
Thank you.