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Improper Institutionalization Class Certified in New Hampshire

A class action brought on behalf of persons with serious mental illnesses against the governor and other state officials was recently certified by the Honorable Judge Steven McAuliffe. These named plaintiffs are individuals institutionalized in one of the State's institutional treatment facilities. The complaint alleged that the ADA, the RA, and the Nursing Home Reform Act (NHRA) were violated by the program at the Glencliff Home because they failed to develop and implement an adequate Preadmission Screening and Annual Resident Review (PASARR). Under federal law, needless segregation of persons with disabilities in institutions is a form of discrimination that is prohibited by the ADA.

The U.S. District Court for the District of New Hampshire granted the motion with regard to the ADA and RA claims but not with regard to the PASSAR claim. The motion was granted because of the narrowly defined class. The class, as defined here, was "all persons with serious mental illness who are unnecessarily institutionalize in New Hampshire Hospital of Glencliff or who are at serious risk of unnecessary institutionalization in these facilities." The Court found that although the definition did not define who is at "serious risk," the language provided sufficient objective and relevant limiting criteria and proposed a reasonable temporal limitation of two years. Plaintiffs' evidence established that the class comprised hundreds of persons, sufficient to satisfy the requirement of numerosity.

The Court also found that commonality was demonstrated by Plaintiffs in that substantial evidence suggested that the States' policies and practices created a systemic deficiency in the availability of community-based mental health services. As such, there was a source of harm common to all class members. Additionally, Plaintiffs identified common questions susceptible to answer through common evidence. Such questions included whether a systemic deficiency in the availability of community-based services exists and whether such deficiency is a result of the State's policies and practices. In so doing, the Court distinguished the case at bar with a recent decision out of the D.C. Circuit styled D.L. v. Dist. Of Columbia, 713 F.3d 120, in which the alleged violations of the IDEA involved multiple, disparate failures. In this case, the Court found that the challenged practices of the State pertained to a discrete set of services directed to a specific population.

The Court certified the requested injunctive class under Rule 23(b)(2) as Plaintiffs sufficiently demonstrated that the State had acted or refused to act on grounds applying generally to the class. The Court declined to require that notice be given to all members of the class since the relief sought was systemic and can only serve as a benefit to the class members.

The case is styled Kenneth R., by his Guardian Tri-County CAP, Inc./GS, et al. v. Margaret W. Hassan, Governor of the State of New Hampshire, et al., No. 1:12-cv-00053-SM, D. N.H.; 2013 U.S. Dist. LEXIS 132648.

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